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Many believe the recent nomination of Brett Kavanaugh as a Supreme Court Justice to fill the seat vacated by Justice Kennedy represents an extreme threat to a woman's right to choose.

Kavanaugh Planned Parenthood

Planned Parenthood distributed a press release entitled, "Senate Must Reject Supreme Court Nominee Brett Kavanaugh," essentially arguing that if affirmed, Kavanaugh would be the final nail in the coffin for the ground-breaking Roe v. Wade decision. Reminding its members that Trump has already promised that he'd only appoint anti-abortion justices to the Supreme Court, Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America, said,

We already know how Brett Kavanaugh would rule on Roe v. Wade, because the president told us so. We take Trump at his word that Brett Kavanaugh would overturn Roe v. Wade and get rid of the Affordable Care Act. The balance of the Supreme Court is at stake — we cannot allow it to be tilted against the constitutional right to access abortion.

By taking Donald Trump at his word, Planned Parenthood is urging its followers to oppose the confirmation of Kavanaugh. Taking this to its logical conclusion means that every Trump nominee should be deemed a threat to a woman's right to choose

By taking Donald Trump at his word, Planned Parenthood is urging its followers to oppose the confirmation of Kavanaugh. Taking this to its logical conclusion -- every Trump nominee should be deemed a threat to a woman's right to choose and should therefore be opposed. This would have to be covered in a future piece. For now, let's just stick to Kavanaugh.

So what do we really know about Kavanaugh's stand on this issue? Not much.

Unfortunately, at this point, there is no way to say with any certainty how Kavanaugh would rule on this issue because he doesn't have a track record to review. Some on the right are actually concerned that Kavanaugh might not be anti-abortion enough. In a piece published by Vox, many conservatives expressed disappointment in the selection of Kavanaugh.

Tim Wildmon, president of the ultra conservative organization, American Family Association, was quoted in the Vox piece saying, “Judge Kavanaugh’s reasoning on religious liberty, Obamacare and issues concerning life have proven to be of major concern. For these and other reasons, we are calling on citizens to urge their senators to firmly oppose the nomination of Brett Kavanaugh as a Justice on the United States Supreme Court.”

Reportedly, Vice President Mike Pence, once argued that the judge lacked the “backbone” to overturn Roe.

However, what causes concern for the left is a recent case, Garza v. Hargan. In Garza v. Hargan, a 17-year-old undocumented female entered the United States crossing the boarder into Texas. Shortly after her arrival and detention (she is referred to as Jane Doe in all documents to protect her identity), Jane Doe discovered she was pregnant.

In Texas, a minor seeking to have an abortion must have the permission of her parents or have a judicial waiver issued by the court. Jane Doe did not want her family to know about the abortion. She successfully obtained a judicial waiver. At issue in the Garza case was not whether Jane Doe had a legal right to terminate her pregnancy—at issue was whether she would be allowed to leave the facility where she was detained in an expeditious fashion.

In this case, after Jane Doe successfully jumped through all the legal hoops and successfully obtained the judicial waiver granting her the right to make her own decision about whether to give birth or terminate her pregnancy, and then after deciding that she wanted to terminate her pregnancy, the court then refused to order Eric D. Hargan, Acting Secretary, Health and Human Services, to allow Jane to be transported to a location where the abortion would be performed.

The attorneys in this case asserted that the defendants, Eric D. Hargan et al., would not transport Jane Doe for the abortion, nor would the defendants allow anyone else to do so. In essence, Jane Doe's attorneys were arguing that she was being held hostage. Finding that Hargan imposed an undue burden on Jane Doe, which was preventing her from accessing an abortion facility in an expeditious manner, a federal judge ordered her released. Jane Doe was then able to get an abortion the next day.

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Brett Kavanaugh was one of the judges on the bench when that case was heard. He didn't agree with the judges' final ruling. In his dissent, he argued that the court should not have ordered her release when it did. He felt her interest was best served if the court had taken more time—waited another week or so while they looked for a sponsor. You can read the full court decision along with Kavanaugh's dissent here. (Ironically, Obama's nominee to fill the vacancy on the Supreme Court left by Antonin Scalia's death - Chief Judge Merrick Garland presided over Garza v. Hargan.)

What could easily get lost in the reading as you navigate around the legalese is Kavanaugh's motivation for arguing that:

  • the young woman be held and thus prevented from having an abortion for more than a week longer,
  • it is in her best interest that she be held; and
  • that the majority decision amounted to abortion on demand.

I've read it several times and his argument doesn't hold water. The court had evidence which the government's attorneys never denied that delaying the termination of the pregnancy magnified the risks to Jane Doe's health and increased the practical barriers to obtaining an abortion in Texas. Given that Kavanaugh knew that time was not on the young woman's side, it's hard to reconcile why he'd argue against releasing her with his assertion that he thought it was in her best interest. It's just not believable.

So while there isn't a hefty track record on which to analyze Kavanaugh's position on abortion, his attempt to cloak his real intention for allowing HHS to continue to hold Jane Doe and thus prevent her from terminating her pregnancy is both telling and troubling.

A colleague and frequent editorial contributor to the LA Progressive, Charles D. Hayes, offers some insight into what might be motivating Kavanaugh:

The antiabortion movement in this country for the most part, is not about the welfare of unborn children. It never has been. It is instead, a defensive stance to protect a medieval worldview, wedded to a Biblical misogynistic belief about the roles of women, that when disregarded and disrespected by the public, at large, calls the whole mythic belief system into question, and thus, it represents a conscious, but mostly an unconscious mortal threat.

All you must do to verify this observation is to take a big-picture view of what most of these zealots really believe, and care about, and if you don’t think they would nuke nonbelievers and their children who get in their way, you can’t be paying attention. It’s not about lost souls, it’s a deep-seated sense of existential insecurity because their worldview is threatened which means they perceive that their identity as a group and as an individual is under siege.

These folks simply can’t abide that the rest of the world is going about their business, as if what they believe isn’t worthy of genuflection. And for a significant number of them, it’s not even a belief thing so much as an identity posture as in—my group says this issue is important, so I’m on board. Again, all you must do is take a close look at what they really care about, and this becomes crystal clear.

Now, a deity that wouldn’t address the lost souls issue (should souls exist) couldn’t be considered good—and a deity that couldn’t address the moral dilemma it presents, couldn’t be God. The GOP uses this topic for the blind obedience it inspires and little else. And for sure we know this to be true, because they have proven over and over that the health and welfare of children is not on their priority list—born or unborn.

In my opinion, Charles' explanation is a lot more compelling than anything written in Kavanaugh's dissent. Not unlike Kavanaugh, the anti-abortion movement hasn't demonstrated that it is even remotely interested in the welfare of the women whose rights they seek to thwart or their unborn children. The same governmental agency Kavanaugh argued was seeking to find the best outcome for Jane Doe is the very agency that today can't reunite toddlers with their parents because they separated them without any plan for reunification and now can't find which parents belong to which children or can't find the parents at all.

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Looks like we're all in for a long bumpy ride. This situation gets more sickening every day.

Sharon Kyle
Publisher, LA Progressive