Fox News Reveals: Brett Kavanaugh Does Not Tell the Truth

By William Boardman, Reader Supported News

26 September 18

I’ve always treated women with dignity and respect.

– Judge Brett Kavanaugh on Fox News, September 24, 2018

his is not true. Brett Kavanaugh has not always treated women with dignity and respect, unless you mean abusing his judicial authority in an attempt to prevent a woman from having the legal abortion she wants constitutes some form of “dignity and respect.”

In the one abortion case Brett Kavanaugh has ruled on as a federal judge, he treated a pregnant 17-year-old woman with no dignity and no respect, and he went out of his way to do it. The woman was a Jane Doe fleeing from family violence in Central America, where her parents had beaten her pregnant sister so badly she miscarried. Jane Doe was in US custody, she wanted an abortion, and the US refused. She sued and won the right to an abortion. The US appealed and the case reached the US District Court where Kavanaugh sat. The court ruled to allow Jane Doe (J.D. in the court’s opinion), then at least 15 weeks pregnant, to have her abortion. In an opinion concurring with the majority decision, Judge Patricia Ann Millett wrote:

Fortunately, today’s decision rights a grave constitutional wrong by the government. Remember, we are talking about a child here. A child who is alone in a foreign land. A child who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant. J.D. then made a considered decision, presumably in light of her dire circumstances, to terminate that pregnancy. Her capacity to make the decision about what is in her best interests by herself was approved by a Texas court consistent with state law. She did everything that Texas law requires to obtain an abortion. That has been undisputed in this case.

What has also been expressly and deliberately uncontested by the government throughout this litigation is that the Due Process Clause of the Fifth Amendment fully protects J.D.’s right to decide whether to continue or terminate her pregnancy. The government—to its credit—has never argued or even suggested that J.D.’s status as an unaccompanied minor who entered the United States without documentation reduces or eliminates her constitutional right to an abortion in compliance with state law requirements.

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. The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention by either (i) surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor—effectively, a foster parent—willing to take custody of her and to not interfere in any practical way with her abortion decision….

The irreparable injury to J.D. of postponing termination of her pregnancy—the weekly magnification of the risks to her health and the ever-increasing practical barriers to obtaining an abortion in Texas—have never been factually contested by the government.

Ignoring the health risk question, Kavanaugh’s nine-page dissent argued for waiting for Jane Doe to find a sponsor with little consideration of her as a person with a complicated problem. His summary of Jane Doe’s situation lacks Millett’s humane concern, as he wrote with dry starkness:  

To review: Jane Doe is 17 years old. She is a foreign citizen. Last month, she was detained shortly after she illegally crossed the border into Texas. She is now in a U.S. Government detention facility in Texas for unlawful immigrant minors. She is 15-weeks pregnant and wants to have an abortion. Her home country does not allow elective abortions.

He might as well say she is just a pawn in the game, she doesn’t matter. Kavanaugh later treats the majority opinion reductively, as if it was only about abortion ideology, not the time-constrained needs of a 17-year-old girl. And in doing so, he uses the loaded language of an anti-abortion ideologue:

The majority apparently thinks that the Government must allow unlawful immigrant minors to have an immediate abortion on demand. [emphasis added]  

And later Kavanaugh writes similarly:

The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors. [emphasis added]

This is not honest, truthful argument. This is tendentious and false. Kavanaugh makes clear that he would choose a legalistic rigidity requiring Jane Doe to find a sponsor, regardless of how long that might take or whether it was even possible. Clearly, delay might make her abortion medically more difficult, or impossible. That, although he is not forthright enough to say so, seems to be Kavanaugh’s preferred outcome. That inference is reinforced by Millett’s response to Kavanaugh:

Judge Kavanaugh’s dissenting opinion (at 4) suggests that it would be good to put J.D. “in a better place when deciding whether to have an abortion.” That, however, is not any argument the government ever advanced. The only value of sponsorship identified by the government was that sponsorship, like voluntary departure from the United States, would get J.D. and her pregnancy out of the government’s hands.

Judicial courtesy presumably restrains Millett from saying outright what she clearly describes: that Kavanaugh is arguing speciously and dishonestly. Jane Doe had already decided to have an abortion. Kavanaugh is not telling the truth to suggest otherwise.  Kavanaugh’s argument serves only a callous, ideological purpose, lacking any of the human decency Millett expresses in her conclusion:

The government’s mere hope that an unaccompanied, abused child would make the problem go away for it by either (i) surrendering all of her legal rights and leaving the United States, or (ii) finding a sponsor the government itself could never find is not a remotely constitutionally sufficient reason for depriving J.D. of any control over this most intimate and life-altering decision. The court today correctly recognizes that J.D.’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her.

Kavanaugh told Fox News: “I’ve always treated women with dignity and respect.” That’s simply not true. He did not treat Jane Doe with dignity and respect. Not even close. As a pridefully professing Christian, Kavanaugh seems not to have accepted the lesson of Matthew 25:45: "Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.” 

“I’m a good person,” Brett Kavanaugh keeps telling us. But Brett Kavanaugh doesn’t tell the truth. 

Would a good person conceal his involvement with government torture and other human rights abuses? Would a good person conceal his involvement with mass surveillance of American citizens? Would a good person conceal the rest of his record in the executive branch? Would a good person have so much to hide as Brett Kavanaugh has relentlessly kept hidden? Brett Kavanaugh refuses to tell the truth.

Does that mean he’s a liar? Does that mean he’s delusional? Does that mean he’s in deep denial approaching pathological dimensions? Does that mean he’s an unscrupulous political operative for whom facts are what he says they are at any given moment? Does any of this matter? Why should we care why he doesn’t tell the truth? It doesn’t matter.

The Supreme Court Justice we deserve would be a reliable truth-teller.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.