WASHINGTON – It’s often the dissenting opinions in high profile cases that go unreported or under-reported and such is the case emanating from an en banc rehearing in a matter that should have decided whether an alien minor who attempts to enter the United States eight weeks pregnant – and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit – has a constitutional right to an elective abortion.
According to Circuit Judge Karen LeCraft Henderson, who dissented from the D.C. Circuit Court of Appeals en banc opinion, the government “inexplicably and wrongheadedly failed to take a position on that antecedent question.”
Henderson said the government’s position was wrongheaded because to her the answer is “plainly and easily – no,” and stated, “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”
Henderson chastised her colleagues’ opinion that a pregnant alien minor who attempts to enter the United States illegally is entitled to an abortion, so long as she complies with state abortion laws and restrictions once here.
She said under the court’s decision it would be difficult to imagine an alien minor anywhere in the world who would not have a constitutional right to an abortion in this country, which Henderson said is “at odds with Supreme Court precedent” and “plows new and potentially dangerous ground.”
The case is about 17-year-old Jane Doe (J.D.) who became pregnant in early July and, on Sept. 7, 2017, was unaccompanied as she attempted to enter the United States illegally.
J.D. was detained upon arrival and has remained in federal custody in a federally funded shelter due to her status as an “unaccompanied alien child,” defined as one who “has no lawful immigration status in the United States” and “has not attained 18 years of age.”
A declaration of an official from the Office of Refugee Resettlement (ORR), which is responsible for unaccompanied alien children in federal custody, it was only after a physical examination of J.D. while she was in custody that she was informed she is pregnant.
The declaration, however, doesn’t rule out that J.D. knew of her pregnancy even before the examination nor has J.D. alleged that she first learned she was pregnant in this country.
During oral arguments it was pointed out that it was highly likely J.D. knew she was pregnant when she attempted to enter the United States, since she was at least eight weeks pregnant at the time and elective abortion is illegal in J.D.’s home country.
The district court issued a temporary restraining order requiring the government to allow J.D. to be transported to an abortion provider for performance of the procedure. The government appealed and sought a stay pending appeal.
The government repeatedly stated during oral arguments that it took no position on whether J.D. has a constitutional right to an abortion and assumed, for the purposes of argument, that she has such a right.
On Oct. 20, the court issued an order directing the district court to allow Health and Human Services (HHS) until close of business Oct. 31 to find a suitable sponsor to take custody of J.D. so HHS can release her from its custody so she could obtain an abortion, without ever deciding whether J.D. has a constitutional right to an abortion.
Henderson stated the en banc court’s decision in effect means a pregnant alien minor who attempts to enter the United States illegally is entitled to an abortion, providing she complies with state laws and restrictions once she’s here.
And, while the government, for whatever reason, failed to dispute that proposition, Henderson stated, “[I]t is not the law.”
Henderson states the question of whether J.D. has a constitutional right to an abortion is “antecedent to” any issue of undue burden and the antecedent question is “dispositive of” J.D.’s Fifth Amendment claim.
Because the government failed to take a position on J.D.’s constitutional right, the court has discretion not to decide the antecedent question.
However, because of her colleagues’ decision, Henderson said J.D. will soon be on her way to an abortion procedure she would not receive if she had not invoked the Fifth Amendment.
In a footnote, Henderson took issue with Judge Millett’s characterization that the government waived any contention that J.D. has no constitutional right to abortion, adding, “A waived argument ‘is one that a party has knowingly and intelligently relinquished.’”
She stated, “The government has declared time and again that it is not taking a position on whether J.D. has a constitutional right to an abortion. That is not waiver. Government counsel in the district court stated that he was neither raising nor conceding the point. That is not waiver.”
Henderson then opined that J.D. has no right to an abortion.
She wrote, “J.D. is not a U.S. citizen. She is not a permanent tesident, legal or otherwise. According to the record, she has no connection to the United States, let alone ‘substantial’ connections. Despite her physical presence in the United States, J.D. has never entered the United States as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders.”
Citing case law, Henderson stated, “[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”
Henderson went on to say because J.D. never “entered the United States,” she is not entitled to the due process protections of the Fifth Amendment.”
To conclude otherwise, Henderson said, “[T]he court elevates the right to elective abortion above every other constitutional entitlement,” including freedom of expression, for which an illegal alien can be deported if that expression is against the government, and even the freedom to keep and bear arms, of which illegal aliens are prohibited.
While all must yield to the “plenary authority” of the Congress and the Executive to regulate immigration, Henderson balked at the notion that illegal alien minors have the freedom to terminate their pregnancy as a right more fundamental than them all and said, “This is not the law.”
Henderson disagreed with the panel opinion that assumed the Supreme Court’s abortion decisions involving U.S. citizen women apply to illegal alien minors and stated there is no legal analysis to support that assumption.
She stated if the Due Process Clause applies to J.D. with full force, there’s no reason she cannot donate to political campaigns, despite statute prohibiting such contributions by nonresident foreign national.
“I see no reason that she may not possess a firearm” said Henderson, despite statute’s prohibition on doing so while “illegally or unlawfully in the United States.”
As she respectfully dissented, Henderson wrote, “Far from faithfully applying the Supreme Court’s abortion cases, this result contradicts them, along with a host of immigration and due-process cases the court declines even to acknowledge.”
Henderson was nominated to the U.S. District Court for the District of South Carolina by President Ronald Reagan in 1986 and was subsequently elevated to the U.S. District Court of Appeals for the District of Columbia Circuit by President George H.W. Bush in 1990.
