September 21, 2018
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Kavanaugh could tip the scales in favor of Trump’s immigration policies

Jacquelyn Martin | AP
Jacquelyn Martin | AP
President Donald Trump's Supreme Court nominee, Brett Kavanaugh, listens to a question during the third round of questioning on the third day of his Senate Judiciary Committee confirmation hearing, Thursday, Sept. 6, 2018, on Capitol Hill in Washington, to replace retired Justice Anthony Kennedy.
By Marpheen Chann and Leslie Silverstein, Special to the BDN

As members of Portland’s immigrant advocacy community, we find Judge Brett Kavanaugh’s nomination to replace retiring Supreme Court Justice Anthony Kennedy deeply troubling. The Supreme Court serves as part of a system of checks and balances, and in many of its landmark cases, it has restrained both the executive and legislative branches when they overreached their constitutional limits.

If Maine’s senior senator, Susan Collins, votes to confirm Kavanaugh as a Supreme Court justice, we fear the scales will be tipped in favor of the Trump administration’s unjust and inhumane immigration policies.

In a memo, conservative supporters of Kavanaugh wrote: “The evidence demonstrates quite strongly that on the question of immigration, Judge Brett Kavanaugh is the candidate who will best reflect … the priorities of the Trump Administration.”

Indeed, Kavanaugh showed his true colors as it pertains to immigration and women’s rights when he sought, as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to delay the decision of a detained undocumented immigrant teenager to end an unwanted pregnancy.

Kavanaugh, who was on the three-judge panel that issued the initial decision, helped craft a ruling that stayed the young woman’s private decision regarding her health and livelihood until a sponsor was found. In issuing that order, Kavanaugh ignored well-established precedent and the young woman’s Fifth Amendment due process protections in a contorted effort to avoid constitutional concerns that simply were not present in the case.

The question before the court was not a constitutional question of whether an undocumented teen has the right to an abortion. Supreme Court precedent is quite clear, and, in Kavanaugh’s own words, it is “settled law” that a woman has the right to choose whether to keep or terminate a pregnancy. There is no permissible distinction based on immigration status.

The actual pressing question in the case was whether the government could require that she delay the decision until she was no longer in the government’s custody.

As D.C. Circuit Judge Patricia Millett wrote in her concurrence with the court’s reversal, “Where the government bulldozed over constitutional lines was its position that — accepting J.D.’s constitutional right and accepting her full compliance with Texas law — J.D., an unaccompanied child, has the burden of extracting herself from custody if she wants to exercise the right to an abortion that the government does not dispute she has.”

Had it not been for the intervention of a full panel of the D.C. appeals court, the young woman would have been forced to go through the unnecessary and time-consuming process of finding a sponsor. This would have pushed her perilously close to term, making an abortion far more difficult and riskier.

Kavanaugh chose to ignore the medical necessity and urgency of the moment. When the full appeals court overturned his decision, he went so far as to paint the majority opinion as allowing undocumented minors to have “immediate abortion on demand.” Both his initial decision and his dissent demonstrate a haphazard disregard for the facts of the case, especially given that the young woman had already satisfied the stringent requirements to move forward with terminating her unwanted pregnancy under Texas law.

Roe v. Wade and immigrants’ due process rights are settled law, but tipping the balance of the Supreme Court with this nominee threatens to unsettle decades of hard-won progress.

We urge Collins to reject Kavanaugh’s nomination. If Mainers are concerned about their immigrant neighbors and the future of women’s rights, they should continue calling, emailing and visiting Collins’ offices, and if need be, hold her accountable in 2020.

Marpheen Chann is a board member of the Greater Portland Immigrant Welcome Center. Leslie Silverstein is a principal attorney at Maine Immigration Attorneys and board president of the Immigrant Legal Advocacy Project.

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