'Your decisions affect real people': the lawyer who represented an immigrant teen in her fight to get an abortion explains why she testified against Brett Kavanaugh

Screenshot via VoxRochelle Garza, the plaintiff in Garza vs. Hargan, testifying before the Senate Judiciary Committee on the nomination of Brett Kavanaugh to the Supreme Court.
  • Rochelle Garza, the plaintiff in the 2017 case Garza vs. Hargan, testified before the Senate Judiciary Committee on Friday against Supreme Court nominee Brett Kavanaugh.
  • Garza represented Jane Doe, an undocumented teenager who the federal government tried to block from obtaining an abortion. Kavanaugh ruled against Doe on the DC Circuit Court of Appeals.
  • Garza told Business Insider she testified before the Committee on Jane’s story because “constitutional law isn’t just this thing in the clouds above everything else, it actually has a direct affect on people.”

After lawmakers on the Senate Judiciary Committee questioned Supreme Court nominee Judge Brett Kavanaugh over three action-packed days, they listened on Friday to multiple witnesses who testified for or against Kavanaugh. Those people include the lawyer whose client he ruled against last year in the case of an undocumented teen seeking an abortion.

Rochelle Garza represented the 17 year-old girl, known as Jane Doe, in the case Garza v. Hargan. The case began as a suit against the Office of Refugee Resettlement (ORR) over their decision to block Jane, who was detained in an ORR facility, from receiving an abortion. They did so by refusing to transport her to her appointment, even after she received the proper approval from a judge.

Initially, a Texas state court judge ordered that Jane Doe be permitted to leave custody to obtain the abortion, given that she had obtained the proper judicial bypass to undergo the procedure without parental consent and had secured private funding to pay for it.

ORR appealed the state court decision to federal court, which is where Kavanaugh came in. As part of a three-judge panel for the Federal Appeals Court for the District of Columbia Circuit, Kavanaugh ruled to invalidate the state judge’s order.

His panel’s ruling gave the government additional time to find an adult sponsor for the teen, but the ACLU appealed the decision on Garza’s behalf, and it was eventually overruled by the full panel of judges on the court, where Kavanaugh dissented.

In his dissent, Kavanaugh conceded that unauthorised immigrants on US soil do have a right to due process under the 14th Amendment, but wrote that undocumented youth in custody were not entitled to “abortion on demand.”

After a prolonged legal battle, Jane was able to obtain her abortion at 15 weeks, even though the Supreme Court eventually vacated the US appeals court ruling that allowed her to obtain it.

In her full testimony to the Senate, Garza laid out the facts through Jane’s perspective and talked about the teen’s experience dealing with such an important and personal life decision made by a far-away court in DC.

Garza also recounted the treatment Jane endured in detention, which included being required to undergo “life affirming” counseling at a pro-life crisis pregnancy center as well as sonogram, and being under constant surveillance at the center, where she was not allowed to exercise or go out for excursions with her peers.

“The pain that this caused Jane is something I can’t even describe – knowing that her life’s path, whether she would be forced to carry a pregnancy to term, was completely in the hands of people she would never know made her feel desperate, hopeless, and alone,” Garza said in her testimony.

‘Your decisions affect everyday people’

In a phone interview with Business Insider on Friday, Garza, who specialises in immigration and family law, said her motivation for appearing before the committee was to put a human story behind what can often seem like lofty and abstract concepts of federal law.

“As a Supreme Court judge, your decisions affect real people directly, and it was really important to get Jane’s story out there so that the senators can actually see that,” she said.

While other witnesses on her panel testified to Kavanaugh’s brilliance as a law professor and personal kindness and generosity as a mentor to his students and clerks, Garza said it was important to her to also discuss how much Kavanaugh’s decision in Jane’s case affected someone whom he would never meet.

“Constitutional law isn’t just this thing in the clouds above everything else, it actually has a direct affect on people,” she said.

While the Garza v. Hargan case has been frequently cited by groups such as Planned Parenthood and NARAL as evidence that Kavanaugh will be hostile to reproductive rights and could even vote to overturn Roe v. Wade, Garza believes his rulings in her case case reveal his possible hostility to the rights of people in detention rather than to reproductive rights generally.

“I believe the reason he felt it was ok to make the decision he made was because of her immigration status,” Garza said. “Just because she was in detention, she should have still been able to go to her medical appointments.”

“So really, in effect, his decision-making in this case is chipping away at the rights of immigrants in detention, but doing it through the lens of reproductive rights,” she added.

Garza said she was concerned that had his ruling not been later overturned, the precedent it set could have limited the constitutional rights of others in detention seeking abortions or other medical care, including adults detained by ICE or US citizens incarcerated in the criminal justice system.

“If his ruling had stayed, it could have been translated to other areas,” she said. “That was my fear, ultimately: that the ruling would snowball to anyone who finds themselves in detention.”

Both Garza and Melissa Murray, a constitutional law professor at New York University Law School who also testified against Kavanaugh on Friday, disagreed with the way Kavanaugh approached the Garza case from a legal perspective.

“There was no consideration for the fact that Jane … already had a ruling from a state court judge, who is more apt to determine her best interest,” Garza said. “He didn’t consider that she was being followed one-on-one, that she was completely under the thumb of the federal government. These are all things that should have been taken into account, and weren’t.”

But most of all, Garza said that she hopes that if Kavanaugh is confirmed to the high court, he will take into consideration how his decisions may affect the millions of everyday people who will never meet.

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