Another point of criticism of Judge Kavanaugh by some conservatives is his modest dissent in the 2017 case Garza v. Hargan, involving whether an undocumented minor (a 17-year-old young woman) had a right to obtain an abortion, facilitated by the government, while in federal custody. Garza has attracted attention because it is one of the few cases in Judge Kavanaugh’s 12 years on the District of Columbia Circuit Court of Appeals in which he—as a judge on the D.C. Circuit who does not review state legislation as other circuit judges commonly do—dealt with Roe v. Wade and Planned Parenthood v. Casey as precedents.
In Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017), the ACLU sued the federal Department of Health and Human Services (HHS), which cares for undocumented minors in federal custody who had attempted to cross the U.S. border illegally, in a federally-funded shelter. In September 2017, she “attempted to enter the United States illegally and unaccompanied.” (Judge Henderson noted that “elective abortion is illegal in J.D.’s home country.”) The minor sought an elective abortion. The ACLU claimed that an undocumented immigrant minor in federal custody was entitled to an abortion.
The district court judge ruled for the ACLU. The case was appealed, and Judge Kavanaugh was on the three-judge panel for the D.C. Circuit that reviewed the district court judge’s decision. Judge Kavanaugh reversed the district court, fully adopting the Trump Administration’s legal position.
Then the entire D.C. Circuit, consisting of 10 judges, reviewed the three-judge panel’s decision and reversed it. (This year, the D.C. Circuit’s decision was declared moot and vacated by the U.S. Supreme Court.)
The government defended its actions under the Supreme Court’s precedents on abortion. The government argued that it need not facilitate an elective abortion and that it was not imposing an “undue burden” on the minor’s abortion. When the district court pressed the government on whether the minor had a constitutional right to abortion, the Justice Department emphasized that it was “not taking a . . . position” and was “not going to give [the court] a concession.” And it reiterated that position before the D.C. Circuit Court of Appeals.
Judge Kavanaugh dissented, joined by Judge Henderson and Judge Griffith. He wrote that the majority had “badly erred,” referring to the majority’s decision as a “radical extension of the Supreme Court’s abortion jurisprudence” and as inventing “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” He affirmed that “the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He referred to abortion as “that momentous life decision.” This is consistent with a number of Supreme Court decisions.
Judge Kavanaugh did not join Judge Henderson’s separate dissent, which she wrote for herself alone. Judge Henderson addressed an issue not raised by the government, what she referred to as an “antecedent question.” “Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion?” She criticized the Government for not taking “a position on that question.” Judge Henderson’s dissent swept broadly, addressing possible implications of the majority’s decision. Perhaps she was able to write a broader dissent, to her liking, because no other judge joined her opinion. As she noted, because the Government did not take a position, the judges had “discretion not to decide the antecedent question.” Very simply, Judge Henderson’s position and opinion were unnecessary to her decision to support the government’s legal position in the case.
Why Judge Kavanaugh didn’t join Judge Henderson’s dissent is a matter of speculation. No judge need join another’s opinion, and no reasons are needed or usually expressed. Judge Kavanaugh directly addressed and supported the government’s position, cognizant that it might be reviewed on appeal by the Supreme Court. He clarified precisely what the government’s position was and what it wasn’t, and emphasized that the government admitted that it “lacks authority to block Jane Doe from obtaining an abortion.” Judge Kavanaugh disagreed that the minor had a right to an immediate abortion facilitated by the government, noting that the minor did not have any family or support network in the U.S. to help her make her decision. “It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available. Again, that may be debatable as a matter of policy. But unconstitutional? I do not think so.” Judge Kavanaugh didn’t need to join Judge Henderson’s dissent to fully support the government’s position that it need not facilitate the abortion. As Judge Kavanaugh argued, the three-judge panel “reached a careful decision in a day’s time that, in my view, was correct as a legal matter and sound as a prudential matter.”
In sum, Judge Kavanaugh’s position in Garza states a pro-life view and supports the government’s arguments, in a way that appears both pragmatic and wise under the circumstances. Americans United for Life believes criticism of Judge Kavanaugh on the basis of this opinion is therefore misguided.