The undocumented 17-year-old Central American girl now in Texas at the middle of a court battle juxtaposing abortion and immigration had an abortion Wednesday morning before the Department of Justice could even appeal the case to the Supreme Court. Though the case is technically over, it opened an unusual can of worms, one still worth sorting through.
While proponents of abortion say the case surrounding the girl who entered the U.S. illegally nine weeks pregnant, but wanting an abortion, is solely about abortion rights, it’s actually more about the intersection of immigrant rights and abortion — which is what makes it so complicated. After several back and forth court rulings, a federal appeals court in Washington, D.C. sided with the girl’s desire, sent the case to a lower court, which said the girl could get an abortion “promptly and without delay.”
Not only has the federal appeals court found that the undocumented teen should be allowed to get an abortion, but she should do so because she has some rights, grossly intertwining the Founding Fathers’ intent for equal protection and that pesky clause in the Declaration of Independence about “life, liberty, and the pursuit of happiness.”
As the New York Times states, “Lawyers for the Justice Department have not disputed that Jane Doe has the right to an abortion. But they have argued that the government is not required to facilitate access to abortions, putting the teenager in a precarious position since she is in federal custody.”
In his dissent, Judge Brett M. Kavanaugh, at the U.S. Court of Appeals for the District of Columbia Circuit, wrote, “After all, the Supreme Court has repeatedly said that the government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the government does not impose an undue burden on the abortion decision.”
The most compelling argument against the court’s majority opinion is this separate dissent, from Judge Karen LeCraft Henderson. She wrote that “Under today’s decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip.”
Indeed, if undocumented minors are not only allowed basic rights of “life, liberty, and happiness” under due process, why not come here and do a host of activities — so long as they are “legal,” though perhaps fail to fall under “best practices.”
Yet, with that same logic, if the undocumented minor enjoys minimal rights of a citizen as an illegal alien, why doesn’t her unborn baby? In this interview with Piers Morgan, the late Justice Scalia describes his opinion on Roe. v. Wade which essentially questions this very thing:
Basically the theory that was expounded to impose that decision … that is the theory of substantive due process, that no person shall be deprived of ‘life, liberty, and the pursuit of happiness’ without due process. That is obviously a guarantee … my Court, in recent years, has invented what is called ‘substantive due process.’ Some liberties are so important that no process would suffice to take them away. That was the theory in Roe v. Wade, and it’s a theory that is simply a lie. The world is divided into substance and procedure.
So, the question then remains: Who gets substantive due process here — the unborn baby or the undocumented alien?
In this situation, erring on the side of life — allowing the baby to be born and given to an adoptive family, since the baby is unwanted, according to the teen — seems most prudent and in the spirit of both due process and equal protection (although, obviously, Roe failed to grant equal protection). I can’t fathom the Founding Fathers would have intended to give undocumented aliens so many rights they included that of abortion (they also wouldn’t have liked Roe either).
In a statement, Catherine Glenn Foster, President and CEO of Americans United for Life, said a decision like this, specifically referring to the one on Monday which was reversed, then reversed again: “Americans United for Life is deeply disappointed that once again, an activist judge has declared abortion ‘access’ more important than U.S. law and policy that prohibits federal funding and support of elective abortion. This ruling mandates that taxpayer funds be expended to facilitate the destruction of an innocent human life, in violation of the Hyde Amendment and the consciences of millions of American citizens.”
The teen, living here illegally and enjoying at least a few rights, thanks to our founders’ wonderful, but limited, foresight has accused federal officials of forcing her to have a baby. “Defendants have been talking to me about my pregnancy – I feel like they are trying to coerce me to carry my pregnancy to term,” she wrote.
Saying this case is solely about abortion is like saying a kid who stole 10 packages of Oreos from a grocery store needs to take a class on healthy eating in order to learn how to make better decisions. The issue isn’t what he stole but the fact that he stole in the first place. The issue isn’t that an undocumented teen arrived here, learned she was pregnant, and decided she wanted an abortion which now her “adopted” country has to wrangle with politically: It’s the fact that she’s here. Undocumented. If she has any rights of due process at all — and why, in fact, does she? — then why doesn’t her baby? Either the logic applies to all, or it applies to none.
Pro-choice advocates are so used to pearl-clutching their abortion rights that anything other than that — say carrying a baby to full-term and placing the child in the care of an adoptive family, permanently — is somehow an egregious offense worse than murdering a baby who is nearly halfway through its gestational term.
Despite pro-choice opponents and even federal courts’ willingness to make this case solely about abortion, it seems like the country would benefit from another examination of due process and what “rights” undocumented citizens have. This ruling, if Judge LeCraft Henderson is right, may open a floodgate of undocumented women coming here just to enjoy federal custody and the “right” of an abortion — to the chagrin of the Founding Fathers and unborn babies everywhere.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
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