Abortion, Immigration, and the Courts – Three Judicial Approaches

by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights 

It had to happen: an administration seeking to remake the Constitution into a rubber stamp for rights violations found the place where abortion and immigration converge.  In a federally contracted shelter in Texas, an unaccompanied 17-year-old immigrant who did not want to be pregnant waited over a month while federal officials relentlessly blocked her from receiving an abortion.  Jane Doe was forced to endure what ultimately became a grueling spectacle and multiple court hearings before she could access what has long been a protected constitutional right in the United States.

The government’s argument in this recent case, Garza v. Hargan, is glaringly unconstitutional. Under a line of cases starting with Roe v. Wade (1973), and ending with Whole Woman’s Heath v. Hellerstedt (2016), it’s settled law that the Constitution protects the right to access abortion, and the government cannot place a “substantial obstacle” in the path of a woman - adult or minor - seeking to exercise that right.  Whether claiming to advance the government’s preference for childbirth or its view of what is in a pregnant minor’s “best interests,” or both, the government has no authority to unilaterally block a woman’s access to abortion.  But in the Garza case, the government did just that.

Before federal officials halted her, Jane Doe had already sought and received a judicial bypass in Texas state court. Under this process, a minor who does not want to involve her parents has a right to go expeditiously before a judge, represented by an appointed guardian ad litem.  After the judge authorized her abortion, government officials from the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) refused to release Jane Doe from custody so she could travel to her appointment, blocking her from obtaining an abortion, even as her pregnancy progressed to almost 16 weeks. The government clung to two equally untenable arguments that it was not actually stopping Jane Doe from having an abortion. First, she could remove herself from its custody by voluntarily giving up any rights she had to immigrate to the U.S., instead returning to her home country where she faced abuse and where abortion is illegal.  Alternatively, if at some point ORR identified and approved a sponsor who would house and care for her while her immigration case progressed, then she would be out of the government’s custody and free to proceed with an abortion.

In situations like this, vindication of constitutional rights can only happen in the courts. And the U.S. Court of Appeals for the District of Columbia, sitting en banc, came through, holding that that the government could not continue to block Jane Doe’s access – reversing a three-judge panel of the same court that held otherwise just days before.This legal resolution is correct, and allowed Jane Doe to have her abortion without additional trauma. But it also provides insight into the role that courts and judges play when another branch of government goes off the constitutional rails. 

The en banc decision was a per curiam, without a written opinion. Three other opinions were filed – a concurrence, and two dissents. Collectively, they show the range of ways that judges can respond to an administration that traffics in glaring constitutional violations, and defends them in court with arguments that turn precedent on its head.    

Option One:  Enforce Precedent

Judge Patricia Millett – who also sat on the three-judge panel that would have held for the government, wrote a concurring opinion in the en banc review, which expanded on her previous dissent.  In both, she called out the government’s arguments for what they are – “freakishly erratic” assertions that “def[y] controlling Supreme Court precedent.” She told the government in certain terms that it cannot change the meaning of the law or Constitution by making funhouse arguments: “The government’s mere opposition to J.D.’s decision is not an individualized ‘best interests’ judgment within any legally recognized meaning of that term, and its asserted categorical bar to abortion is without constitutional precedent.”

Option Two:  Upend Precedent

Judge Karen L. Henderson, also on the three-judge panel, wrote a solo dissent from the en banc decision.  Judge Henderson’s opinion faults the government, but for a very different reason. She would have decided a monolithic question on which the government repeatedly and conspicuously declined to take a position:  do undocumented people have the right to abortion, or other rights guaranteed by the Fifth and Fourteenth Amendments?  Judge Henderson wrote: “The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.” In sweeping terms, she asserts that undocumented people either have nonexistent or very limited due process rights. She accordingly disagrees that Supreme Court precedent on abortion applies to Jane Doe, and would recognize the executive’s authority to “pursue its legitimate interest in protecting fetal life” without constitutional constraints.

Notably, the only participants in Jane Doe’s case who were willing to make the argument that Judge Henderson found persuasive were the attorneys general of Texas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina, acting as amici. 

Option Three:  Hollow Out Precedent 

Judge Brett Kavanaugh, the third member of the original three-judge panel, penned a dissent after the en banc review that Judges Henderson and Griffith joined. Judge Kavanaugh would have held that because the Supreme Court has upheld a 24-hour waiting period before abortion, and permitted some burdens on access if they are not “undue,” the government was free to block Jane Doe’s abortion while it tried to find a sponsor who would take her out of detention. Judge Kavanaugh wrote that under current Supreme Court precedent, it would not be an undue burden for the government to delay her abortion (already delayed by a month) until she was 17 weeks pregnant, at which time a court would revisit the question and the government could make additional arguments if it wanted to continue to block access. 

While the Supreme Court has upheld a 24-hour waiting period and other parental involvement laws provided that they include an expeditious bypass (such as the one Jane Doe used), it has never come close to upholding this scenario: weeks of intentionally-imposed delay after a woman has decided to have an abortion and completed any state-mandated requirements – especially not where the government admits to hindering her based on its own opposition to abortion. Judge Kavanaugh’s holding pretends to apply precedent, while hollowing it out to mean absolutely nothing.      

The en banc court came through for Jane Doe, righting an egregious constitutional violation by applying long-settled precedent. But the range of opinions in this case show that when an administration tries to remake constitutional law, judges have choices.  They can apply settled law, drastically rewrite it, or subtly revise legal standards to accommodate rights violations.This administration will provide the courts with no shortage of rights violations, in reproductive rights, immigration, and countless other areas. Precedent is not always perfect, but when it’s clear, and the government tries to muddy it, the courts need to see through the mess.  

Access to Justice, Equality and Liberty, Immigration, Reproductive Rights