WASHINGTON — The dramatic legal battle between the American Civil Liberties Union and the federal government over an unauthorized 17-year-old migrant girl from Central America in federal custody, who had sought an abortion, took an unexpected detour on its way to the U.S. Supreme Court.
On Oct. 25, the day after the full D.C. federal appeals court ordered the immediate reinstatement of a district judge’s ruling requiring federal officials to facilitate the abortion, the ACLU declared victory, announcing the death of the 15-week-old unborn baby at an abortion center in McAllen, Texas.
And now, the ACLU is seeking to expand the ruling’s application into a general obligation for the federal and U.S. government to facilitate abortions for all unaccompanied minors in custody.
The turn of events took Texas Attorney General Ken Paxton by surprise. His office had quickly drafted an amicus brief from Texas and 11 other states to prevent the abortion and a precedent that simply being apprehended illegally crossing the border conferred full constitutional protections. However, the Justice Department failed to submit its brief by the time the girl, identified only as “Jane Doe,” aborted her baby at 4:30am Oct. 25.
In an Oct. 25 statement, Paxton blamed the Justice Department for not acting in time to obtain an immediate stay from the Supreme Court, arguing the girl’s abortion “may have been avoidable.” He described it as both a defeat for the sacredness of “life and the Constitution.”
“The ruling that paved the way for the abortion violated long-standing Supreme Court precedent on the rights of an unlawfully present person,” he said. “Even the Obama administration’s Department of Justice acknowledged that unlawfully present aliens without substantial connections to the country lack the same constitutional rights as citizens. This ruling not only cost a life, it could pave the way for anyone outside the United States to unlawfully enter and obtain an abortion.”
Why Justice Department attorneys did not immediately seek an emergency stay on the D.C. Circuit Court’s ruling to the Supreme Court is not clear. Texas law has a 24-hour minimum waiting period between informed-consent counseling and the abortion procedure itself, but Doe fulfilled the law’s requirements more than a week ago at a crisis-pregnancy center, where she viewed the sonogram of her unborn child and underwent counseling.
Attorney General Jeff Sessions told Fox News’ Bret Baier on Oct. 27 that the government was “disturbed” the ACLU went to such lengths to make sure the young woman had the abortion before the government was able to file its brief with the Supreme Court. He explained his lawyers had an understanding with the ACLU that it would not obtain the abortion for the young woman until then.
The ACLU declared a substantive legal victory and announced it was looking forward to bringing up a class-action lawsuit that would establish a legal obligation for state and federal officials to facilitate abortions for unauthorized immigrants in custody.
“BREAKING: Justice prevailed today for Jane Doe,” the ACLU proclaimed on Twitter. “She was able to get an abortion early this morning. #JusticeforJane.”
“With this case, we have seen the astounding lengths this administration will go to block women from abortion care. We will not stop fighting until we have justice for every woman like Jane,” Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, said in a statement.
The case has generated a great amount of concern among many pro-life advocates, some of whom saw parallels in Texas between the unauthorized migrant “Jane Doe” and Norma McCorvey, the “Jane Roe” in the 1973 Roe v. Wade decision that, along with Doe v. Bolton, legalized abortion in the United States.
Penny Nance, CEO of Concerned Women for America, told the Register that she’s troubled the ACLU is using this case and others to turn the U.S. into a “huge abortion destination.”
“There are two people who came across the border, and one had her life violently ended,” Nance said.
However, Paul Linton, a pro-life constitutional lawyer and the author of Abortion Under State Constitutions, told the Register that the legal stakes were nowhere near as sweeping as in Roe v. Wade.
“The government never made the argument that the Jane Doe illegal alien did not have a right to obtain an abortion, although it was urged to do so by at least one member of the D.C. panel,” he said. “Thus, that issue was not actually decided.”
Linton criticized the appellate decision that the girl had a constitutional right to abortion. Because she had been apprehended attempting to enter the United States illegally, Linton explained, she had not “entered” the United States in a way that would give her constitutional rights, “which was the point of Judge Henderson’s dissent from the [full circuit court] order.”
“There is no question that a resident alien or even an illegal alien who was not apprehended while trying to enter the United States would have a right to an abortion (though not one funded or facilitated by the government or any state), but Jane Doe was neither,” he said.
Targeting the Hyde Amendment
Various chapters of the ACLU across the country have been trying to create a case that would establish precedent requiring the federal government and its partners, including the U.S. Conference of Catholic Bishops, to facilitate abortion for unauthorized migrant youth under the age of 18 that end up in their care.
“They want the Catholic Church and people of faith to give up their conscientious commitments, or leave the public square altogether,” Steven Aden, chief legal officer and general counsel for Americans United for Life, told the Register.
But the Jane Doe case represented the third attempt by the ACLU to find a jurisdiction that would compel the government to facilitate the choice of abortion for an undocumented minor, which would “violate the letter and spirit of the Hyde Amendment.” The Hyde Amendment is legal language attached to appropriations bills for the Department of Health and Human Services that prohibits federal money to be used for abortions in circumstances other than rape, incest or to protect the life and health of the mother.
The federal government has argued that expenses occurred to facilitate the abortion, such as providing transportation, violate the Hyde Amendment; the ACLU contended the rule applies only to paying for the abortion itself.
A 2-1 three judge panel of the D.C. Circuit had ruled the issues around facilitating the abortion could be resolved if the unaccompanied girl had a sponsor, who would be legally responsible for her, and said the federal government had until Oct. 31 to do so. But the ACLU asked for an en banc review from the full D.C. circuit court, which decided 6-3 to void the three-judge panel’s decision and reinstated the district court’s order.
Because the ACLU was successful with the D.C. Circuit, Aden said, it found the jurisdiction that gives it the best likelihood of succeeding in its class-action lawsuit, which would likely head to the Supreme Court.
Overall, the decision would have ramifications beyond the Office of Refugee Resettlement and affect state and federal correctional facilities.
“It’s not a settled issue, by any means,” he said.
Aden said the ACLU’s failure to obtain a sponsor for the girl, who would be responsible (instead of the government or its partners) for getting her prenatal care or an abortion, indicated the group’s real focus was on this larger strategy of compelling the government to facilitate abortions. Although not precedent-setting, the D.C. Circuit’s decision will be used as “guidance” the next time a similar case comes up in that jurisdiction.
Overall, Aden said, the ACLU is looking to hack away at the Hyde Amendment’s ban on public funds for abortion and previous decisions from the high court that have recognized the government can favor birth over abortion in its policy.
“I would hope the Supreme Court would reaffirm the principles of the Hyde Amendment,” he said, “and rule that public servants do not have to facilitate elective abortions,” he said.
Immigration and Right to Life
The ACLU case, however, shed light on a public-relations strategy of linking abortion rights with immigrant rights.
The move has disturbed leaders in the Catholic Church, which teaches that the dignity and rights of the unborn child and the dignity and rights of the migrant, legal or not, are both rooted in the intrinsic dignity of the human person in all conditions of life.
St. John Paul II, in his 1993 encyclical Veritatis Splendor (The Splendor of Truth), underscored the insight by describing both “abortion” and “deportation” as “intrinsic evils,” and he condemned them again as attacks on human life in his 1995 encyclical Evangelium Vitae (The Gospel of Life).
Jennifer Allmon, executive director of the Texas Conference of Catholic Bishops, told the Register that over the past year, the conference has seen abortion activists aggressively recruiting immigration activists to advance their own agendas.
“It is concerning to us the way this is all happening,” she said. Conflating abortion with “immigrant rights,” Allmon explained, “fails to recognize the true respect each person [unborn and immigrant] deserves.”
The case of Jane Doe — beyond the legal issues — illustrates how society is failing to support human life and dignity. Allmon explained the Church wants American society to provide a “healing refuge” for both the mother, who did not have legal status, and the child, who would have had legal status, had he been allowed to live. The child now is dead, and despite the mother’s public hopes for education and a better life, her immigration status is highly uncertain.
“There is no happy ending at all in the case,” she said. “It’s an absolute tragedy that we have reached the point in our society where any person is dispensable. Both of the people at the heart of this case have been deeply damaged and, in the case of the unborn child, killed.”
Peter Jesserer Smith is a Register staff writer.