//  9/5/18  //  Quick Reactions

I have better things to do with my time than tilt at the windmills that are the kabuki theatre of the SCOTUS confirmation hearing.  But something that Judge Kavanaugh kept saying today about abortion restrictions required a response.

At the hearing today, Judge Kavanaugh was repeatedly questioned about his opinions in Garza v. Hargan.  In that case, the government (in the light most favorable to it) sought to delay a young woman’s abortion until such time as she could be released into the custody of a private sponsor.  (For context, the government had been searching for a sponsor for seven weeks, and it was not at all clear when, if ever, a private sponsor would be found.  The woman was already into her second trimester, at over 15 weeks pregnant.)

Today, Judge Kavanaugh repeatedly used one line of reasoning to defend his ruling in Garza, which (as I have explained repeatedly) is an atypically bad application of Supreme Court precedent.  In his hearings today, Kavanaugh told the Senators that his opinion relied on a body of Supreme Court cases about “parental consent” laws and that his opinion was a faithful application of those precedents.  Those cases upheld certain parental consent requirements on minors; thus, Judge Kavanaugh suggested, he was merely effectuating those rulings by ensuring that the minor in Garza had obtained the kind of consent that Supreme Court cases said could be required of her.

The problem for Judge Kavanaugh is that that reasoning makes no sense as applied to the facts of Garza v. Hargan.  It is true that the Court has upheld parental consent requirements under governing Supreme Court precedent on abortion restrictions.  But it has only done so *when those parental consent requirements contain a judicial bypass provision, which allows a minor to forego the requirement of parental consent when the minor convinces a court that the requirement cannot be applied to her.*

Thus, in Planned Parenthood of Central Missouri v. Danforth, the Court invalidated a “blanket parental consent requirement” that gave “a third party and absolute, and possible arbitrary veto over the decision of the physician and his patient to terminate the patient’s pregnancy.”  And, the Court explained in Bellotti v. Baird, in which it invalidated *another* requirement that minors must obtain parental consent in all cases, that states “also must provide an alternative procedure whereby authorization for the abortion can be obtained.”  The Court continued: “A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or 2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.”  As Justice Kennedy summarized in Ohio v. Akron Center for Reproductive Health, “Danforth established that, in order to prevent another person from having an absolute veto power over a minor's decision to have an abortion, a State must provide some sort of bypass procedure if it elects to require parental consent.”

Now, these decisions predated Casey, which established the governing legal standard for abortion restrictions (the undue burden test). But there is absolutely zero in Casey that suggests states can now impose an absolute bar on abortions for minors who do not obtain parental consent.  In fact, Casey suggests the opposite.  Casey explained:

Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose.

But a prerequisite to obtaining abortion that operates as an absolute bar on certain minors (who couldn’t inform their parents due to fear of retaliation or parental absence or incest) would operate as a substantial obstacle.

More importantly, the parental consent requirement that the Court upheld in Casey *had a judicial bypass procedure*.  As the Court explained “If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent, or that an abortion would be in her best interests.”

And just for emphasis: 

Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.

So the governing law on abortion allows states to impose parental consent requirements, but requires them to provide “judicial bypass procedures” that allow minors to obtain abortions even without parental consent.  As the Court explained in a per curiam opinion in Lambert v. Wicklund:

The Court's principal opinion [in Bellotti] explained that a constitutional parental consent statute must contain a bypass provision that meets four criteria: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the consent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor's anonymity; and (iv) provide for expeditious bypass procedures.

Note the “expeditious” describing the required “bypass procedures.” 

That brings us back to Garza.  The minor in Garza, Jane Doe, obtained judicial bypass from the parental consent requirement.  That is, she availed herself of the judicial bypass procedure and convinced a state court judge that she should be able to have an abortion without parental consent.  Under Supreme Court cases, that is the end of the matter—she was entitled to have an abortion.  Yet Judge Kavanaugh would have allowed the government to subject her to some other requirement that would have delayed her abortion even further.  The parental consent cases do not suggest that states can do anything more to minors above and beyond a parental consent requirement with a judicial bypass procedure in order to better effectuate parental consent requirements.  They say the exact opposite.

Judge Kavanaugh is not stupid.  In fact, he is very smart.  Lisa Blatt and Akhil Amar have described him as brilliant.  He can read Supreme Court cases and knows darn well that none of the “parental consent” cases suggest states can subject minors to parental consent requirements with judicial bypass procedures as well as "some other undefined and quite burdensome requirements that purportedly effectuate parental consent."  No case has ever upheld some other requirement on minors above and beyond parental consent on the ground that the additional requirement somehow effectuates parental consent.  And the government was not subjecting Jane Doe to the other requirements that have been upheld by the Supreme Court (such as informed consent laws, or no government funding for abortion).  It was delaying her abortion, potentially beyond the point at which she could have one at all.

Judge Kavanaugh was therefore either suggesting that the parental consent cases, because they uphold one restriction on minors' access to abortion, suggest the government can impose some other requirements on minors besides consent and judicial bypass.  The cases have never addressed much less signed off on other requirements for minors besides parent consent, but that reasoning is a good encapsulation of how judges can purport to apply precedents while actually changing them dramatically.  “The undue burden cases say governments can impose unique restrictions on minors; this is a restriction on a minor; therefore it’s constitutional” would limit access to abortion pretty well.

More troubling would be if Judge Kavanaugh is saying (which is what the government argued at one point) that the federal government can *step in the shoes* and act as Jane Doe's parent because Jane Doe's parent isn't present and refuse her consent to an abortion.  That argument is terrifying in its implications and makes no sense (there are a bunch of constitutional restrictions that apply to the government but not private parties as Mark Joseph Stern explained in this article).  But again it’s a good illustration of how judges can undermine precedents by chipping away at them.  Which is exactly what Judge Kavanaugh has signaled he would do with Roe and Casey, as I wrote about here.  Judge Kavanaugh has shown that he will *expansively interpret* precedents that allow states to restrict abortion and *very narrowly* interpret precedents that place limits on states' ability to restrict abortion.

 @LeahLitman

Note: This post has been updated.


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