States Dispute Immigrants’ Constitutional Right to Abortion

Activists with Planned Parenthood demonstrate in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion, outside of the Department of Health and Human Services in Washington, Friday, Oct. 20, 2017. (AP Photo/J. Scott Applewhite)

(CN) – An 11-state coalition asked a federal appeals court on Friday to reverse a decision allowing a 17-year-old undocumented immigrant in government custody to have an abortion, arguing the order “incentivizes even more unlawful immigration” and undocumented immigrants are not entitled to the same constitutional rights as others in the United States.

Texas Attorney General Ken Paxton, whose solicitor general filed the coalition’s amicus brief in the U.S. Court of Appeals for the District of Columbia, said in a statement Friday that the ruling could turn Texas into a “sanctuary state for abortion,” although Texas already has some of the most restrictive abortion laws in the country.

The brief was filed in the class action Garza v. Azar, in which the American Civil Liberties Union sued the Trump administration for refusing to allow an undocumented pregnant minor, Jane Doe, from obtaining an abortion while in detention.

U.S. District Court Judge Tanya Chutkan issued a temporary restraining order which allowed Doe to get an abortion. In Chutkan’s order certifying the class, she wrote in a footnote that the plaintiffs’ “Fifth Amendment right to decide whether to continue or terminate their pregnancies is not diminished by their status as undocumented immigrants.”

The states’ amicus brief focuses on this footnote, and they argue that undocumented immigrants, who do not have substantial “ties” to the United States, have no constitutional right to an elective abortion.

According to the brief, the U.S. Supreme Court clarified in United States v. Verdugo-Urquidez that undocumented immigrants only have constitutional protections when they have “developed substantial connections with this country.”

In that case, involving a Mexican citizen who participated in the torture and murder of a DEA agent, the Supreme Court ruled the Fourth Amendment does not apply to the search and seizure of property owned by a “nonresident alien and located in a foreign country.”

The high court noted Rene Martin Verdugo-Urquidez had no “voluntary connection” with the United States, as he was arrested by Mexican police and brought into the country pursuant to a U.S. arrest warrant, and that his “legal but involuntary presence here does not indicate any substantial connection with this country.”

Unlike Verdugo-Urquidez, the undocumented pregnant minors in Garza v. Azar voluntarily entered the U.S. with the hope of making their lives here.

However, the states insist these minors have shown no “substantive ties” to the country, are not entitled to the “full panoply of constitutional rights,” and are only entitled to protections against “gross physical abuse.”

The brief does not elaborate on what kind of ties an undocumented immigrant needs to have in order to enjoy constitutional rights.

The states are also worried Chutkan’s ruling will “incentivize” immigration, attracting more immigrants to the U.S. in search of the constitutional rights afforded to its citizens.

“Plaintiffs once again have asked the court below – and now this court – to announce that anyone on Earth has any number of constitutional rights simply by being apprehended while trying to cross the United States border unlawfully,” the states said in the brief. “That holding would only further incentivize even more unlawful immigration and further strain the budgets and resources of governments throughout the nation.”

ACLU attorney Brigitte Amiri, part of the legal team representing the “Janes” told Courthouse News Friday that a person’s immigration status does not affect their right to an abortion.

“The constitutional right to abortion is not diminished by someone’s immigration status, and not even the federal government is making that extreme argument,” Amiri said in an email.

She added there is also no merit to the states’ claim that the Chutkan’s ruling “incentivizes” immigration.

“Unaccompanied immigrant minors flee their home countries because of horrific circumstances such as abuse or violence,” Amiri said. “When these young people make their way across the border, the sexual assault rate is as high as 80 percent. Generally, these young people find out they are pregnant for the first time after they arrive in the U.S.”

The states – Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia and Kentucky – want the D.C. Circuit to reverse Chutkan’s class certification and classwide preliminary injunction.

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