There are thousands of documents with Brett Kavanaugh’s name on them in the National Archives, containing millions of words. But anyone who votes to put him on the Supreme Court should pay special attention to three of those words. They are “abortion on demand.”

The phrase may be a strong indication of where the nominee stands on a woman’s right to terminate a pregnancy, suggesting an answer to a question he would almost certainly want to duck.

It’s not something he tweeted in haste, or blurted out years ago when he was in college. It shows up in an opinion he wrote last year as a judge on the U.S. Court of Appeals, when he must have known he was auditioning for a job on the Supreme Court.

In fact, he wrote ‘”abortion on demand” three times in a nine-page opinion, so he must have considered it important. Which means senators – especially pro-choice senators like Sen. Susan Collins – ought to consider it important, too.

Who says “abortion on demand” and what do they mean?



On its face, it sounds redundant. How else would you distribute abortions except “on demand”? It’s a medical procedure that only some people need, and you wouldn’t know who they were unless they asked for it. “Hip replacement on demand” is a phrase you never hear. “Colonoscopy on demand” also sounds weird.

But it’s a modification of the word “abortion” most often spoken by people who don’t believe that it should be an “on demand” item. Collins has said that she would not vote for a candidate who was “hostile to Roe v Wade,” the 1973 decision that recognized abortion as a right; but overturning Roe may not be where the battle over abortion rights takes place. If Collins is worried about judges who are hostile to a woman’s right to choose and not just the Roe v Wade decision itself, a phrase like “abortion on demand” should be a major red flag.

The case, Garza vs Hargan, dealt with a 17-year-old girl who was being held in a Texas facility for unauthorized immigrants who are minors.

Known as “J.D.” in the paperwork, she said she was escaping abuse at the hands of her family in Central America and was seeking asylum. After she came into government custody she found out she was pregnant.

Working with a court-appointed lawyer and a legal guardian, she said she wanted an abortion. She appeared before a Texas judge who determined she was mature enough to make the decision, in compliance with the state’s parental notification law. Her lawyers arranged for her to have the procedure, and made plans to transport her. Then the federal government stepped in.

Even though no government money would be used, the Department of Health and Human Services said it should not be forced to “facilitate” the completely legal abortion. The case took a convoluted trip through the courts, eventually being decided by the full D.C. Court of Appeals. Kavanaugh ended up on the losing side and wrote a dissenting opinion.


In it, he said he had proposed a reasonable compromise that was rejected by the majority. Instead of letting J.D. get an abortion, he offered, she could wait a little longer for the government to find her an immigration sponsor. But he was outvoted.

“The … majority (opinion) reflects the 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,” he wrote. “The majority’s decision is inconsistent with the precedents and principles of the Supreme Court – for example, the many cases upholding parental consent laws – allowing the Government to impose reasonable regulations so long as they do not unduly burden the right to abortion that the Court has recognized.”

Some claim that Kavanaugh’s ruling shows him to be a moderate because he did not deny that J.D. had a constitutional right to an abortion (or any rights at all). He just told her to wait.

But if you are wondering if a judge can be hostile to abortion rights in general without touching Roe v. Wade, this is Exhibit A.

The government would not have objected if J.D. had decided to have the baby, but since her choice was abortion, Kavanaugh argued that she needs more help navigating a difficult situation. A parental consent law, like the one J.D. complied with, is reasonable – unless she gets permission to make a decision that the government thinks is wrong. Then she needs more support.

And there are those three words – “abortion on demand.”



Why does it matter? It conjures up the worst prejudices of the anti-abortion forces. Pregnant women who want abortions are selfish and entitled (“I demand it, I say!”) and they have not taken the time to think through their decision. They want it now, dammit, not later, but “on demand.”

This is why post-Roe abortion laws have tried to find ways to get the heavy hand of the state in between a woman and the procedure. It’s what’s behind laws like the one in South Dakota, which requires a woman seeking an abortion to wait for 72 hours (not counting weekends or holidays) after receiving counseling. Or the one in Indiana that makes doctors read a script written by legislators, instructing women that “personhood” begins at conception.

These are the kinds of cases that are likely to end up at the Supreme Court, which makes the Garza case very relevant. Kavanaugh might say the right things about Roe v Wade, but don’t think for a minute he’s in favor of abortion if it’s “on demand.”


Only subscribers are eligible to post comments. Please subscribe or login first for digital access. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.