Abortion: A Universal Right or Modern America’s “Peculiar Institution”?

Mary Rose Short

Pro-life advocates often note the striking comparisons between our current regime of legal abortion and the shameful record of legal slavery, the South’s so-called “peculiar institution”, in our country. The recent case of a pregnant seventeen-year-old in Texas provides another parallel for reflection.

On September 7, 2017, law enforcement officers apprehended a pregnant minor, a citizen of a Central American country where abortion is prohibited, as she tried to enter the United States unlawfully and without her parents. As are all unaccompanied minors entering the country illegally, “Jane Doe” was detained in a shelter overseen by the Office of Refugee Resettlement (ORR), a division of the federal Department of Health and Human Services.

There are currently thousands of minor illegal immigrants in shelters funded and administered by ORR. Pursuant to ORR regulations, detained minors are free to leave a shelter if they either (a) find a sponsor in the United States who will safely house them (often a family member who is a legal resident) or (b) return to their home country. While being detained, minors receive medical care and a legal briefing on their rights, including access to legal representation. Detained minors must be accompanied by shelter staff if they leave the shelter for medical care or any other reason. If a minor chooses to remain in the United States but a sponsor cannot be found, the minor might be placed in a foster family or group home until he or she turns eighteen and leaves ORR’s custody.

A legal battle over the life of Jane Doe’s child began on October 5, 2017, when the ACLU filed a motion seeking a temporary restraining order and a permanent injunction against all ORR shelters, asking that they be forced to violate their own policies in order to release minor girls, including Jane Doe, for abortions on demand.

In its court filings, the ACLU noted that the new ORR director appointed under the Trump administration had ordered that shelters “should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming options counseling,” that ORR refused to release Jane Doe to attend pre-abortion appointments, and that ORR had said that it would not release her to have an abortion. Attorneys for Jane Doe argued that she had a constitutional right to an abortion facilitated by ORR and, additionally, that ORR had violated Jane Doe’s constitutional rights by taking her to a pregnancy care center and by notifying her mother in her home country about her pregnancy.

ORR responded that it was under no obligation to use staff time or money to facilitate a “medically unnecessary” abortion. ORR pointed out that Jane Doe was free to return to her own country at any time and that staff members were working with her to identify potential sponsors in the United States who might take custody of her, if she chose to stay. ORR was not placing an “undue burden” between Jane Doe and her abortion.

The case wound its way up to the D.C. Circuit Court of Appeals, which decided in favor of Jane Doe on October 24 in an en banc review, headed by Justice Merrick Garland. The majority decision paints a sad story of a “child who is alone in a foreign land . . . who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant . . . then made a considered decision, presumably in light of her dire circumstances, to terminate that pregnancy.” The decision repeatedly references Jane Doe’s “constitutional right” to abortion.

D.C. Circuit Judge Karen LeCraft Henderson wrote a scathing dissent. She first noted that Jane Doe was two months pregnant when she entered ORR custody and that evidence suggests she knew she was pregnant when she left her own country. The bulk of her argument, however, was focused on the central question of whether Jane Doe, a minor detained at the border, in fact had a constitutional right to abortion—an issue that the U.S. Department of Justice inexplicably failed to raise in opposing the ACLU’s lawsuit.

Justice Henderson recited the numerous precedents holding that an individual apprehended while trying to enter the United States illegally has no standing to assert rights under the Constitution. She listed all the rights that the courts have not granted to illegal immigrants and how the majority’s decision set the right to abortion above all the others:

“If [Jane Doe] can be detained indefinitely—which she can be—and if she can be returned to her home country to prevent her from engaging in disfavored political speech in this country—which she can be—and if she can be paroled into the United States for a decade or more, register for the draft, and see her parents naturalized, only for her still to be deported with cursory notice—then she cannot successfully assert a due process right to an elective abortion.

In concluding otherwise, the Court elevates the right to elective abortion above every other constitutional entitlement. Freedom of expression, freedom of association, freedom to keep and bear arms, freedom from warrantless search, and freedom from trial without jury, all must yield to the “plenary authority” of the Congress and the Executive, acting in concert, to regulate immigration; but the freedom to terminate one’s pregnancy is more fundamental than them all? This is not the law.”

Following the D.C. court’s decision on October 24, ORR notified the ACLU of its intention to file a petition in the Supreme Court the following morning, October 25. In response, the ACLU represented that, due to a Texas state law mandating counseling by the abortionist at least twenty-four hours before the abortion, and, due to the scarcity of abortionists in Texas, the earliest Jane Doe could have an abortion was October 26. Jane Doe had already had pre-abortion counseling in accord with a previous court order, but the ACLU said that that abortionist was not in the area. In compliance with the D.C. court’s decision, she was scheduled for pre-abortion counseling the next day, on the morning of October 25. Shelter staff transported her to the appointment. Later that morning, the ACLU notified ORR that, instead of receiving counseling, Jane Doe had undergone an abortion at sixteen weeks’ gestation.

Although Jane Doe’s abortion tragically ended the life of her son or daughter, it did not end the lawsuit. In December, the ACLU represented three more alleged seventeen-year-olds seeking abortions while in ORR custody. If left standing, the D.C. court’s October 24 decision sets the precedent for future cases alleging that minor illegal immigrants in government custody have a “constitutional right” to abortion. In November, ORR brought a petition for a writ of certiorari to the Supreme Court, seeking to vacate the D.C. court’s decision and erase the precedent. The Court has yet to rule on the petition.

Judge Henderson’s dissent concluded, “Under my colleagues’ decision, it is difficult to imagine an alien minor anywhere in the world who will not have a constitutional right to an abortion in this country.” Put another way, under the D.C. Circuit’s opinion, it is difficult to imagine an unborn child anywhere in the world having a right to life, even in countries where that life is protected by law, if the child’s mother has a “constitutional right” to kill that child in this country.

It is instructive to consider the result when a similar question was presented in the context of slavery. In 1841, the Supreme Court heard the case of U.S. v. Schooner Amistad, involving a slave ship bound for Cuba. The slaves took control of the ship and, in their efforts to return to Africa, got lost and were brought ashore in New York by the coast guard. International parties claimed ownership of the slaves and argued that the slaves should be punished for their rebellion, during which they killed two men. The Supreme Court ruled that, despite their recent capture and enslavement, the slaves were by nature free and had broken no laws in defending their freedom. The lawyer for the slaves argued, “Such a law [slavery] is not to be presumed, but the contrary. . . . These respondents having been born free, and having been recently imported into Cuba, have a right to be everywhere regarded as free, until some law obligatory on them is produced authorizing their enslavement. . . . Neither the law of nature nor the [international] law of nations authorizes the slave-trade.”

In the same way, unborn children conceived in countries where abortion is restricted or illegal should be presumed by nature to have a right to life. The fact that the mother merely crossed—or attempted to cross—the border into a country which does not recognize the unborn child’s right to life should not rob the child of that natural right. Our country’s peculiar institution of abortion on demand “is not to be presumed, but the contrary.” “Neither the law of nature nor the law of nations authorizes” abortion.