Immigration Law

8 states file brief supporting the government's attempt to deny abortions to immigrant minors

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Eight states described as having “a legitimate and substantial interest in preserving and promoting fetal life” have weighed in on a lawsuit seeking to clear the way for immigrant minors in federal custody to have abortions.

An amicus brief in Garza v. Hargan from the states of Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Carolina and Texas argues that minors in federal custody have no right to have an abortion because of their immigration status.

“Granting Plaintiff’s motion for a [temporary restraining order] and preliminary injunction would create a right to abortion for anyone on Earth who entered the United States illegally, no matter how briefly,” the brief argues. “If Doe has a right to an abortion, it is difficult to imagine what other constitutional protections she would not have by extension.”

Garza concerns Jane Doe and two other young women, Jane Roe and Jane Poe, who are in federal custody, as is standard for unaccompanied alien minors who have not yet been released to family or sponsors. All three were pregnant when they entered federal custody, and all three sought abortions, but say that federal authorities refused to let them leave shelters to have the procedures, and in fact took them to religiously affiliated “crisis pregnancy centers” instead, where personnel attempted to talk them out of abortion.

These practices, the lawsuit says, violate pregnant in-custody minors’ Fifth Amendment right to privacy, First Amendment right not to have their speech compelled and First Amendment right to free exercise of religion, since the policy advances certain religious beliefs.

But none of that matters, the amicus brief says, because none of the young women currently have those constitutional rights. The U.S. Supreme Court held that immigrants here without authorization are persons protected by the Fifth Amendment, the brief says, but only when they have “developed substantial connections with this country.” No evidence shows that the young women have such substantial connections, it says, and no case establishing a privacy right to abortion addresses immigration status.

Furthermore, the brief argues, granting the plaintiffs’ requested temporary restraining order or preliminary injunction would hurt the states by announcing that constitutional rights are granted to everyone who enters the United States. This would encourage more immigration, it says, thereby consuming state and local resources.

It’s the only amicus brief so far in the high-profile case. In October, Doe went to court to get an abortion and ultimately underwent the procedure after the full D.C. Circuit Court of Appeals ruled in her favor. In December, the district court also ordered the federal government to allow Roe and Poe to have abortions; PACER documents show the government voluntarily dismissed its appeal as to both of them.

Doe’s case created a side issue in November when the Department of Justice filed a petition for certiorari arguing that the ACLU attorneys should be disciplined for misleading the government about the timing of her abortion. The ACLU argues that the agency is responsible for its own failure to appeal quickly enough.

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