Back in the Spotlight: Kavanaugh’s Extreme Views Return in the Latest Jane Doe Abortion Case
Last month, the D.C. Circuit stepped-in to prohibit the Trump Administration from blocking young pregnant immigrants’ access to abortion and to remind us all of the extreme views of newest Supreme Court Justice, Brett Kavanaugh. (As if we’ve been able to forget!)
You may recall that, back in October 2017, the Trump Administration violated the rights of seventeen-year-old, Jane Doe. While being held in a Texas shelter for unaccompanied migrant youth, Jane requested an abortion for which she had already obtained a judicial bypass, funding for her procedure, and transportation to an abortion facility. Meeting those restrictions had already pushed Jane near the second trimester of pregnancy; still, the Trump Administration tried to block Jane from getting the care she needed! The D.C. Circuit Court of Appeals then had to put a stop to the government’s unconstitutional actions and allow Jane to get an abortion.
That decision was one from which then-Judge Kavanaugh strongly dissented. Kavanaugh falsely accused the court’s majority of facilitating “immediate abortion-on-demand”, a remedy to which, he said, Jane and other “unlawful immigrant minors in U.S. Government detention” had no right. Despite Jane having complied with restrictions on abortion access under state law, Kavanaugh would have further delayed Jane Doe’s abortion, while the Government attempted to find her a sponsor. He went so far as to mischaracterize this egregious denial of Jane Doe’s rights as “reasonable regulations that do not impose an undue burden on abortion”. Had Kavanaugh’s approach been accepted, Jane Doe could have been forced to carry a pregnancy to term against her will. No outcome would have been more extreme!
It turns out, Jane Doe wasn’t alone. Each year, the Office for Refugee Resettlement (ORR) “has several hundred pregnant unaccompanied minors in its custody.” And in March 2017, ORR issued a new abortion policy, again attempting to block abortion access, by prohibiting its shelters from allowing any abortion without prior approval from the Director of ORR. Then-director, Scott Lloyd, denied every abortion request that was presented during his tenure, causing a blanket ban on abortion access for unaccompanied immigrant minors.
Given that ORR’s policy was both cruel and unconstitutional, the ACLU filed a class action lawsuit on behalf of Jane Doe and all similarly-situated immigrant young women who were being denied abortion care while in the custody of the federal government.
The D.C. Circuit ruled in favor of the class members’ challenge! In J.D. vs. Azar, a three-judge panel affirmed that ORR’s “blanket ban” on abortion is unconstitutional. The court rejected the government’s argument that immigrant women who are denied abortions can voluntarily depart from the U.S. to get them. Specifically, the court responded that “requiring an unaccompanied minor to carry her pregnancy to term unless she waives any claim for relief to stay in the United States is itself a substantial burden on her exercise of her rights.” We agree!
The panel then dismissed the suggestion that the government can delay access to abortion care for young immigrant women, while it attempts to find sponsors to take custody of them. As the court noted, that approach can be “trace[d]. . . to then-Judge Kavanaugh’s opinion in an earlier stage of the proceedings in this case.” In other words, just as Kavanaugh sought to do, ORR would have made Jane’s constitutional guarantees of liberty and autonomy practically unattainable. Thankfully, the D.C. Circuit has again reproached such extreme views!
What This Means
The court’s latest decision means that, for now, Jane Does’ constitutional right to abortion remains protected. It also means that – once again – we have seen how, Justice Kavanaugh’s views threaten abortion access. Given his new role on the Supreme Court, that threat could mean the end of Roe as we know it. And because preserving what remains of Roe’s promises is a defense of our personal freedoms, we all have something at stake!
So we say: Justice for Jane. Justice for All.