Today, two conservative judges and the Trump administration successfully conspired to at least delay, and possibly prevent altogether, a seventeen-year-old undocumented immigrant’s decision to have an abortion. It was an appalling, brutal decision, thoroughly in defiance of established constitutional rights.
To be clear: there is no question under the Constitution that immigrants who lack lawful status are protected persons under the Due Process Clause. And there is no question that this young woman, known to the courts as J.D., has done everything she was supposed to do under Texas law upon learning she was pregnant: she sought and obtained a guardian ad litem, then had a Texas state judge determine she was mature enough to make this decision by herself. She has even endured Texas’s mandatory counseling, including a visit to an anti-choice “crisis pregnancy center” where she was forced to view an ultrasound, and she has not changed her mind.
But that’s not enough for the Trump/Sessions DOJ, which stammered that it doesn’t want to “facilitate” her choice. Two conservative judges — one (Brett Kavanaugh) with Supreme Court aspirations and therefore no interest in recognizing a woman’s right to choose no matter how well-established by law — saw fit to agree today, instead placing another roadblock in J.D.’s path: she must find a suitable “sponsor” by Halloween so that the federal government would itself have no role here. The administration won’t release her to her guardian, they won't let her lawyers take her to the doctor. (Of course, if she were continuing her pregnancy, they would.) If HHS refuses to approve a sponsor in time., we’re back in court. And J.D. will be 17 weeks pregnant by then, with Texas banning abortions after 20 weeks.
Judge Patricia Ann Millett, an Obama nominee, dissented, and if you have a choice between reading the rest of this piece versus reading her 10-page opinion, read hers. It begins:
There are no winners in cases like these. But there sure are losers. As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.
What Judge Millett does so effectively in her dissent is demolish every argument thrown in J.D.’s path. As to whether the federal government is in fact facilitating her choice at all:
The United States has for weeks now refused to release J.D. into the custody of her guardian ad litem to obtain the abortion. It is undisputed that J.D.’s guardian and attorneys—not the federal government—will transport her and bear the costs of the abortion procedure. The logistics and paperwork of transferring her to the custody of her guardian ad litem will all be handled by a government contractor that is fully willing to do so. It will not be done directly by any federal governmental official. And J.D.’s post-procedure medical care will be administered by the contractor, not by government officials themselves. The Department of Health and Human Services’ only task is to refrain from barring its contractor from allowing J.D. to receive the medical care.
Under controlling precedent, the government can’t place a “substantial obstacle” in the way of a woman’s right to choose. If she were older and in ICE custody, or federal prison, that right would be protected. But not here, and the government's assertions are noxious:
The government says that, because she is a minor, an official in the Department of Health and Human Services must independently agree that an abortion is in J.D.’s best interests. And this Administration refuses to so agree. Without any explanation other than its opposition to abortion. In so doing, the federal government distrusts the State of Texas, which has conducted a hearing pursuant to state law and authorized J.D. to make the decision herself and to decide whether continuing or terminating the pregnancy is in her own best interest in this respect. J.D. may make that decision without the consent of her “parent, managing conservator or guardian.” Notwithstanding the States’ constitutional primacy in matters of domestic relations, the United States argues that a federal government official in Washington, D.C. is better positioned and has more authority under the Constitution to prevent an abortion than not only the State, but also the woman and any parent or husband or father of the child. At least, until the woman turns 18. No judicial bypass exists for that federal official’s decision. That is an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage.
The government further argued that J.D. could self-deport, and control her decisions in her home country. First of all, apparently, her home country does not protect abortion rights, and moreover as Judge Millett explains:
Third, the government says that J.D. is free to get an abortion as long as she agrees to voluntarily depart the United States. But the government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights. The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution. The Statue of Liberty’s promise to those “homeless” “yearning to breathe free” is not a lie….
Needless to say, conditioning a woman’s exercise of her fundamental right to reproductive choice, see Casey, supra, on the surrender of other legal rights is at the least a substantial obstacle to the exercise of her constitutional right. And by the way, this is a Hobson’s Choice that the federal government demands only of female immigrants.
Judge Millett goes onto explain as a factual matter that two sponsors had already been evaluated and rejected by HHS, that J.D. had been trying to obtain one for six weeks, and that HHS had full and arbitrary control over the rigorous process and its timing. “The federal government could not tell the court how long that process would take,” she explains, “even assuming a responsible sponsor would suddenly be found.”
Finally, she sought to make clear that even though J.D. is an undocumented immigrant, she has constitutional rights — no matter what some conservative “friends of the court” claimed:
There are few constitutional questions more far-reaching than the proposition that individuals in the United States without legal documentation do not even qualify as “persons” under the Constitution. The Supreme Court has long recognized that immigrants who lack lawful status are protected persons under the Due Process Clause….
The implications of amici’s argument that J.D. is not a “person” in the eyes of our Constitution is also deeply troubling. If true, then that would mean she and everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have noc onstitutional right to bodily integrity in any form (absent criminal conviction). They could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term. Even if pregnancy would kill the Mother, the Constitution would turn a blind eye. Detainees would have no right to any medical treatment or protection from abuse by other detainees. Those with diabetes or suffering heart attacks could be left to die while their governmental custodian watches.
(The Trump administration did not touch this argument, nor did they refute it themselves.)
Her dissent concludes, simply:
J.D. came to the United States without legal documentation. That is not disputed. But the government cannot make a forced pregnancy the sanction for that action. J.D. retains her basic rights to personhood. After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. When they, consistent with legal process, decide to continue their pregnancies, that decision should be supported. When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.
I accordingly dissent
