Judge Kavanaugh To End "Constitutional Right To Abortion" in America!

Discussion in 'Law & Justice' started by JimfromPennsylvania, Sep 14, 2018.

  1. JimfromPennsylvania

    JimfromPennsylvania Active Member

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    Will he or won't he? Will Judge Kavanaugh if given a seat on the U.S. Supreme Court work to overturn the Roe v. Wade case which recognized a women's constitutional right to an abortion in the early stages of her pregnancy? What let the world stop if the truth not be revealed is the answer to this looming "culture touching" question hanging over the Judge Kavanaugh nomination? During his confirmation hearings last week Judge Kavanaugh made a concerted and great effort to appear to pose no threat to the Roe v. Wade law but the U.S. Senate and the American people would be incredibly duped if they believe this to be the truth! From his record one should unequivocally conclude that if given a seat on the U.S. Supreme Court Brett Kavanaugh would continually do his best to overturn Roe and until that time weaken Roe as much as possible!



    Judge Kavanaugh's only abortion case was the Garza v. Hargan case (874 F.3d 735) a 2017 case where Judge Kavanaugh wrote a dissenting opinion which one Democrat Senator during the confirmation hearings quite insightfully essentially analogized the opinion as a "job resume" sent to President Trump for a job on the Supreme Court which President Trump sees as having as a key part of the job description "will overturn the Roe v. Wade precedent law". Really a fair evaluation of this case would conclude that Judge Kavanaugh in his opinion sent a multitude of signals to the far-right bloc and the anti-abortion bloc in America that he is in their camp and will be a great champion for them on this issue if put on the Supreme Court!



    The facts in the Garza case were that a minor for confidentiality reasons identified as Jane Doe who was not an American citizen illegally emigrated to the United States and was apprehended at the border and because she was an unaccompanied minor (UAM) meaning she didn't have a parent or legal guardian with her pursuant to U.S. government policy was turned over to the custody of the Office of Refugee Resettlement (ORR) an agency in the Department of Health and Human Services (HHS) which in turn placed her in a privately run facility in the state of Texas which ORR contracts with to hold and shelter unaccompanied minors. These facilities pursuant to government policy upon taking custody of female UAMs give them a pregnancy test and when such was done with Jane Doe they discovered Jane was pregnant at least eight weeks pregnant; abortion is illegal in Jane's native country. In the ORR facility Jane wished to have an abortion it would be an elective abortion as opposed to a medical necessary abortion because there was no health issue with Jane requiring her to consider getting an abortion. She told officials at her facility of her wishes to have an abortion and pursuant to the government policy at that time the Director of ORR had to explicitly approve such abortions for them to occur. The Director of ORR denied Jane's request for an abortion. ORR caused Jane to have to go to a Religious affiliated anti-abortion crisis pregnancy center where she was required to undergo an ultrasound where she would see an image of the fetus and undergo counseling to try to persuade her to not to have an abortion. Texas state law in regards to minors being able to get an abortion requires either parental consent or a judicial bypass.



    After the Director's denial and enduring the aforementioned persuasion effort with the help of an attorney Jane got a judicial bypass from a Texas state court. With the help of her attorney Jane had an appointment with a medical facility that would provide the abortion and had made arrangements to pay for the abortion so all the government was required to do was to transport Jane to this medical facility the same as if the government would transport an alien minor in their custody to any medical facility for a health care appointment. The government refused and Jane's attorney at Jane's request sought from a Federal District Court a TRO (Temporary Restraining Order) on the government to carry out this transportation task or release Jane into the custody of her lawyer so her lawyer could carry out this task and return Jane to ORR custody. The District Court granted the TRO and the government appealed to the DC Circuit Court of Appeals. A three Judge Panel of the DC Circuit which Judge Kavanaugh sat on handled the case and ruled against granting a TRO in this case and gave the government more time ( like 7 to 9 days) to find a sponsor to take guardianship of Jane which if such occurred would put the government out of the abortion matter. Jane through her attorney appealed for an en banc hearing from the DC Circuit meaning an appeal to all the Appellate Judges on the DC Circuit Court. On that appeal Jane prevailed the en banc court granted the TRO and denied any temporary stay for further appeal so Jane was able to have her abortion. In the En Banc opinion Judge Kavanaugh wrote a dissenting opinion providing his rulings in the case.



    Judge Kavanaugh unlike a good judge used bias phraseology and bias mischaracterization of the majority finding in his opinion which one could fairly infer indicates he holds a strong bias against a women's constitutional right to an abortion. Judge Kavanaugh writes "The majority's decision represents a radical extension of the Supreme Court's abortion jurisprudence" and "The majority decision --- is ultimately based on a new constitutional principle --- a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate 'abortion upon demand', thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision". It was inappropriate for Judge Kavanaugh to use the phrase "abortion upon demand" he should have used the phrase "elective" abortion for the former phrase implies that there is no responsible analysis involved in this decision by the minors and Judge Kavanaugh has no basis for drawing such conclusions; further, this phrase "abortion upon demand" is a phrase the anti-abortion movement in American uses to disparage the pro-abortion camp in America the use of such partisan terminology in explaining a judicial analysis has no place in a judicial opinions. Secondly, there was no extension of Supreme Court abortion jurisprudence in this case, this case fell within the scope of what a "judicial bypass for a minor" case would be expected to involve and the Supreme Court has found judicial bypasses constitutional. Further, the majorities opinion created no obstruction to a government effort to expeditiously try to place pregnant alien minors with sponsors so they would have help in making such a major decision in their lives the posture of the case undercuts Judge Kavanaugh conclusion here! When the DC Circuit Court got the case Jane was fifteen weeks pregnant Texas State law bans abortions after twenty weeks meaning there wasn't a lot of time left for Jane especially considering the scheduling challenges Jane faced 1 doctor and 2 2 appointments needed; and, Jane had spent 35 days in ORR's custody before her case was filed with the federal district court if there was a precedent it would then be that the Federal Government has only thirty-five days to place an alien minor with a sponsor hardly this precedent would be stopping expeditious transfers by the Government!





    Judge Kavanaugh had an odd way in his opinion, seen in an abundances of sentences, of referring to a women's constitutional right to an abortion first recognized in the Supreme Court's Roe v. Wade opinion. In his opinion acknowledging that all parties agreed on Jane having this right he writes "All parties have assumed for purposes of this case, moreover; that Jane Doe has a right under 'Supreme Court precedent' to obtain an abortion in the United States". In his referring to the scenario that if the government is not able to place Jane with a sponsor they will have to allow her to exercise this right, he writes "But if transfer does not work given existing 'Supreme Court precedent' and the position the Government has so far advanced in this litigation, it could turn out that the Government will be required by existing 'Supreme Court president' to allow the abortion". Judge Kavanaugh in this opinion displays that he has a real aversion to writing that there is a "Supreme Court recognized constitutional right to an abortion" he keeps referencing "Supreme Court precedent". Considering that mostly all Americans know that a Supreme Court precedent can by overturned the reasonable deduction from this aversion of Judge Kavanaugh to flat out referencing this constitutional right means that in his view the U.S. Constitution does not actually provide this right and then the logical deduction from this realization is that if Judge Kavanaugh is placed on the Supreme Court he will be working to overturn the Roe v. Wade precedent!

    See Part Two!
     
  2. JimfromPennsylvania

    JimfromPennsylvania Active Member

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    PART TWO!

    What is very telling about Judge Kavanaugh's opinion is that if his effort to help the minor in this case isn't successful, that is, his providing of more time to the government to get Jane a sponsor by October 31 doesn't actually result in her getting a sponsor, he then doesn't lift the government obstruction on Jane getting an abortion by reinstating the TRO. What Judge Kavanaugh opinion provides for is that after this October 31 deadline passes with no success the government gets another opportunity to come before the Circuit Court and argue for the legality of its continued obstructionism. Now during Judge Kavanaugh's confirmation hearings he repeatedly said in commenting on this case that if the government wasn't able to find a sponsor for Jane by the Court imposed deadline Jane would have been permitted to have the abortion. The sixty-four million dollar question is if Judge Kavanaugh really believed that was the right thing to do that is what the law called for why didn't he provide for this result in his opinion? Even one of the majority siding Judges in his opinion in this case points this out as a problem in Judge Kavanaugh's legal analysis of the case.



    Judge Kavanaugh in his opinions is not following the law but essentially adding a provision to the law a provision that is really arbitrary and not fair to a person having to meet that condition. As stated Texas State law requires that for a minor to be able to get an abortion in the state either parental consent or a judicial bypass is needed. Further, as stated Jane got a judicial bypass. Judge Kavanaugh writes in his opinion that this fact of Jane having gotten a judicial bypass is "irrelevant" because Jane is an alien minor in an ORR holding facility which calls for the conclusion that Jane does not have a "support structure" to make the decision that having an abortion is the right thing for her to do; of course, a judicial bypass is a ruling that the minor has the wherewithal to make a responsible decision so what Judge Kavanaugh is saying is as a matter of law alien minors in such facilities do not have such wherewithal, he has no basis for such a sweeping ruling. In reality what Judge Kavanaugh is doing here and which is legally problematic is he is adding a condition or provision to the Texas law on Judicial Bypass the added condition is the minor if that minor is an alien in ORR custody has to have a "support structure". Judge Kavanaugh is making law here not following the law which he should be doing. The Texas state legislature very well could have added the condition that the minor has to have a "support structure" to get a judicial bypass but chose not one can say this because surely one can assume that the legislature is knowledgeable enough about reality to now that some minors in Texas, like all states, will not have a support structure a reasonably prudent person would conclude that there is minors that spend their childhood being passed through foster homes that are not good situations and there is minors that live on the street and organization that try to service these street kids tell us that some of them only know people that prey on them and use them. Judge Kavanaugh in his ruling here is making up his own law not following the law and that is wrong!





    During Judge Kavanaugh confirmation hearing one Democrat Senator asked a really good line of questioning she essentially said why Judge do you keep talking about this case in terms of the constitutionality of the Federal Agency's ORR's policy the minor was in Texas the Texas law was clear and constitutional and satisfied! The Judge responded by saying something like state law is state government policy and has to be constitutional as America has seen in many Supreme Court opinions and the Federal government through its Federal Agency can have a federal policy and that is legally permissible as long as its constitutional. I can see the legitimacy that the Federal government can have an abortion policy here and apply it as long as it is constitutional but this refers to the three hundred pound gorilla in the room. The Federal Agencies ORR's policy was patently unconstitutional it wasn't even close an appellate Judge following the law would have thrown out the federal policy as unconstitutional and just applied the state policy/law. If one just delves into what the Federal government was doing here with its Federal agency ORR the Federal abortion policy for these alien minors in ORR custody was that they only would be permitted to have medical necessary abortions no elective abortions permitted. The specific policy was that the Director of ORR had to explicitly approve an abortion for a minor in the agency's custody to get one. During the time of this case the Director was not approving elective abortions. He would tell his staff to put the minors in ORR's custody through the persuasion "to stop pursuing an abortion" effort and if they still wanted to get an abortion tell them they would have to get parental consent but he made no commitment to get them an abortion if they got that parental consent. In fact, ORR's policy was that transporting minors to medical facilities where they could get an abortion even if ORR had no involvement with the type of medical procedure the minor received at the facility was considered "facilitating" the abortion and facilitating an abortion was not something ORR was going to do Federal law did not require ORR to do any facilitating of an abortion whatsoever. Further ORR's policy with respect to minors in their custody who were pregnant and seeking abortions to tell these minors they had two options they could voluntarily agree to relinquish their right to a consideration for refugee status and agree to be deported back to their native country or two get a sponsor that ORR could release then to so ORR wouldn't be involved in the matter was not a Federal abortion policy it was an obfuscation of an abortion policy it was meaningless as an abortion policy. Since the Federal policy at issue was that these minors would only be permitted to get medical necessary abortions, not elective abortions, there wasn't even an issue whether the federal policy was an undue burden on the young women's constitutional right to an abortion it was a deprivation of that right because the constitutional right included both elective and medical necessary abortions. So from this standpoint Judge Kavanaugh's legal analysis was clearly wrong and not following the law he should not have gotten involved in trying to give the government more time to get a sponsor he should have ruled the Federal policy here was unconstitutional and just applied the Texas state law which Jane met and so she should have been granted her TRO!





    All this huge public opposition to the current nominee to replace Justice Kennedy on the Supreme Court lies squarely at the feet of President Trump. There was plenty of Conservative Judges in the country whose nominations would have sailed through the Senate but President Trump had to select a nominee, Judge Kavanaugh, who was far right of a conservative Judge he is an extremist; Judge Brett Kavanaugh is an extremist far- right Judge. Such a Judge does not deserve to receive a seat on the Supreme Court. It is uplifting to see many Americans actively opposing the Judge Kavanaugh nomination but at the same time it is also sad to see many American that are not involving themselves in the issue. I don't think it is any negative character factor at play here I don't think many Americans see the danger in a Judge Kavanaugh confirmation here. I don't think these American envision an America where abortion is illegal in wide swaths of America I don't think they envision an America where huge numbers of girls and young women are either being forced to carry their pregnancy to term or get abortions from non-medical facilities and from non-medical personnel with terrible medical consequences. These Americans need to immediately envision it because it is on the horizon with a Judge Kavanaugh confirmation. This is almost certainly how things will unfold with a Supreme Court with a Justice Kavanaugh on it Roe v. Wade will be overturned where the court's holding will be that the constitution does not provide a right to an abortion than individual states across America are free to pass laws outlawing abortion. Within a year of overturning Roe the country will see those states with Republican Legislatures and Governors pass such laws and by the time the Supreme Court gets a new Justice that believes the current law as of today is correct there will be at least another handful of states that passed such a law because both state branches in those states had become Republican and on the abortion issue the Anti-abortion movement holds the reins of the Republican Party. Then it will be too late the Supreme Court will never take an abortion case again because it will cause too much cultural upheaval repealing their reversal of Roe the Supreme Court's position will be change the U.S. constitution to provide this fundamental right to women. And America will succeed in changing the Constitution in this regard because it is the right thing to do but it will take the better part of two decades to do it to get two-thirds of the states to ratify the amendment to the constitution and how many girls' and women's lives will be blown-up during that time period. Now is the time for the fight let the vast majority of Americans from the country's end to end speak out against the nomination of Judge Kavanaugh to the Supreme Court and stop this threat to a women's fundamental right to an abortion!
     
  3. reallybigjohnson

    reallybigjohnson Well-Known Member

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    You know who else didn't think Roe was a good ruling, Justice Ginsberg.
     
  4. tkolter

    tkolter Well-Known Member

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    Well then Congress would need to pass a Federal Law to make abortion legal and under what terms or it would then defer to the States again to allow or not but I think the original decision was flawed so maybe its time to look at the case again.
     

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