Judge Kavanaugh May Say ‘Roe’ is Settled Law, But He Has Always Been Anti-Choice.

Judge Kavanaugh May Say ‘Roe’ is Settled Law, But He Has Always Been Anti-Choice.

Personal liberty, bodily autonomy, and self-determination are core values of the women’s rights movement, queer liberation, and the disability rights movement. These are rights won through years of struggle. Judge Brett M. Kavanaugh, if confirmed, is poised to undo much of this progress.

In Garza v. Hargan, Judge Kavanaugh blocked an unaccompanied 17-year old immigrant, Jane Doe, who was in a federal shelter, from receiving the abortion care she needed. Even though Jane complied with Texas state procedure for minors seeking abortion care without parental consent, the federal government blocked Jane from traveling to the clinic. Jane sued and won. On appeal, Kavanaugh refused to let the lower court’s decision go into effect even though time was running out. Jane was in her 15th week of pregnancy, and had already been blocked from seeking an abortion for almost four weeks; Texas bans abortion care after 20 weeks. When the full court overturned his order and let Jane seek abortion services, Kavanaugh dissented, accusing the majority of creating a new right to “immediate abortion on demand.”

In Doe ex. rel. Tarlow v. District of Columbia, two women with intellectual disabilities were forced to undergo abortions and a third was subjected to elective eye surgery. They sued, claiming that their due process rights were violated when the District of Columbia authorized the abortions and surgery without considering their wishes. The District argued it had no obligation to ask what the women wanted, because they were “legally incompetent to make fully independent medical decisions.” The lower court chastised the District, calling its argument “offensive to the dignity” of individuals with intellectual disabilities — the women still had preferences, values, and belief systems that deserved to be considered.

On appeal, Kavanaugh reversed, saying that considering their input “does not make logical sense…” because the women “lack (and have always lacked) the mental capacity to make medical decisions.” Kavanaugh’s conclusion relies on an outdated, all-or-nothing understanding of the concept of capacity and a dismissive approach to self-determination. As others have aptly noted, “One hundred years ago, Judge Kavanaugh’s ruling would have been at home on the Supreme Court.” But that was a time when the Supreme Court permitted forced sterilization of women with disabilities, and Oliver Wendell Holmes, Jr. infamously declared: “[t]hree generations of imbeciles are enough.”

In both of these cases, Kavanaugh ran roughshod over the wishes of women, whether it was the decision to parent or the decision end a pregnancy. These questions cut to the core of personal dignity and self-determination. The U.S. Supreme Court knows this. As Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter recognized in Casey regarding personal decisions relating to family life, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of life.” In particular, regarding abortion services, the Court stated, “The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

The young Jane Doe in Garza seeking an abortion was able to exercise self-determination only when the District Circuit Court overturned Kavanaugh’s decision. She finally received the abortion care she needed, saying, “I made my decision and that is between me and God…. No one should be shamed for making the right decision for themselves. I would not tell any other girl in my situation what they should do. That decision is hers and hers alone.” Jane Doe III from Doe ex rel Tarlow v. D.C. — one of the plaintiffs with an intellectual disability who wanted to continue her pregnancy — was not as fortunate. She did not get to exercise that self-determination. Even 25 years after the forced abortion, she “spoke clearly and vividly about her anger and resentment about being forced to undergo that abortion” and how she “wanted to have that baby.”

Kavanaugh’s decisions are doubly frightening because they ignore the history of reproductive oppression, including forced sterilizations, that women of color, women with disabilities, and low-income women endured in this country—and the very real threats that remain. Between 2006 and 2010, nearly 150 women incarcerated in California were subject to sterilization without their informed consent, resulting in legislation banning forced sterilizations in the state’s prisons. The Supreme Court regularly hears cases where liberty, dignity, self-determination, and bodily autonomy are at stake, and Kavanaugh could very well turn the balance. These decisions show that Kavanaugh is unfit to handle questions of such personal consequence for those who will go before the Court.

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