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Over the past few months, the lower courts have created a new religious liberty right for anyone in the world to immigrate here. Yesterday, the U.S. Court of Appeals for the District of Columbia created a right for any pregnant minor in the world seeking access to an abortion to come here illegally and demand HHS grant them access to an abortion. Welcome to the judicial hell of whatever unelected judges say and however they twist our Constitution being regarded as “the law of the land.”
We have economic migrants and jihadist migrants, now we have abortion migrants. One of the many illegal aliens rushing our borders was a 17-year-old girl from Central America who was 8-weeks pregnant when she crossed over in early September. She demanded immediate access to an elective abortion. Never mind that she could easily go home and have her abortion.
Even though the government was going to allow her to be released into the custody of a relative, whereby she could have sought an abortion at her discretion, the U.S. District Court for the District of Columbia ruled that the government had to directly provide her with an abortion otherwise they’d be violating her Fifth Amendment rights. When the government appealed to a 3-judge panel of the D.C. Circuit Court of Appeals, they were lucky to get 2 Republican-appointed judges – Brett Kavanaugh and Karen Henderson. Over the dissent of the liberal Judge Patricia Ann Millett, those two judges delayed the district judge’s order and gave the government until Oct. 31 to find a sponsor to release her to. Yesterday, the full panel of the D.C. Circuit – the second most important court in the country – ruled 6-3 that pregnant illegal teenagers have a categorical right to an abortion and must be let out of detention straight into an abortion clinic.
Judge Millet, writing for the majority, declared that for people who “find themselves on our shores and pregnant” and seeking an abortion, “the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.”
While Judge Kavanaugh, in his dissent, focused on abortion jurisprudence and how the government was dramatically expanding what it means to have a right to an abortion (you must provide the patient with everything!), it’s Judge Henderson’s dissent that I think is more important. She cut to the core issue of stolen sovereignty that is relevant in so many other cases we are seeing where even Republican-appointed judges are missing settled law. Putting abortion aside, illegal aliens have no right to come here and demand access to anything – tootsie rolls, chocolate chip cookies, or driver’s licenses!
Judge Henderson actually sharply rebuked the government for being too weak in oral arguments and declining to even argue the point that illegal aliens have no Fifth Amendment rights to any positive action. “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,” wrote an indignant Henderson. “Their action is at odds with Supreme Court precedent. It plows new and potentially dangerous ground.”
Henderson criticized the DOJ for meekly avoiding the foundational constitutional question about immigration and sovereignty and noted how their weakness is allowing the liberal judges to run with a false premise. I would note that, in my view, the government lawyers did the same thing with the immigration moratorium cases when they started from 10 erroneous premises – that somehow there is any limitation or judicial review over denial of visas whatsoever. And Henderson’s argument applied to all these cases dealing with aliens that have no legal standing on our shores, yet courts all over the country are granting them citizen rights.
Kudos to Henderson for quoting the forgotten settled law we often reference, which shows that any alien who has not been lawfully admitted to the country is considered as if she is outside our boundaries for the purposes of law and Constitution:
Nearly six decades ago the Supreme Court had already said that “[f]or over a half century
this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).
Referencing one of the most settled areas of all law that has only recently been ignored, Henderson was bold enough to assert an important point even some conservative judges are forgetting: “Because she has never entered the United States, J.D. [Jane Doe] is not entitled to the due process protections of the Fifth Amendment.”
She noted how an uninterrupted stream of case law has shown how immigration law and sovereignty trumps any other authentic constitutional right that would otherwise apply to an American. Enforcing laws against aliens also supersedes any claim from an American that such action indirectly limits their privileges, such as having foreign-born relatives visit them in the U.S. Yet, according to the court’s majority, as Henderson observes, the BS “right” of an abortion trumps it all:
In concluding otherwise, the Court elevates the right to elective abortion above every other constitutional entitlement. Freedom of expression, Mandel, 408 U.S. at 770, freedom of association, Galvan, 347 U.S. at 523, freedom to keep and bear arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir. 2012), freedom from warrantless search, Verdugo-Urquidez, 494 U.S. at 274-75, and freedom from trial without jury, Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) 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.
Thus, we are now in a situation where the entire world is incentivized to either come here and have a baby so that baby is a citizen against the consent of the country or to have an abortion and make America the world’s magnet for baby-killing. Henderson indicated that some sealed documents from the alien’s attorney seem to show that this particular teen came here precisely for the purpose of getting an abortion. Do we really want to spawn chain abortion migration?
Henderson concludes by noting, as we’ve observed ad nauseam for two years, how once illegal aliens are granted affirmative constitutional rights, there is nothing stopping them from demanding the right to own a firearm or donate to political campaigns. She also said we must reconsider trying enemy combatants caught on the battle field overseas before military tribunals because, evidently, everyone in the world has constitutional rights.
There are three very important lessons from this case.
- The D.C. Circuit is lost for a generation due to an insurmountable young leftist majority. Unless we reform the jurisdiction of the courts and/or remake the structure of this court, the Left will have the second most powerful court in its back pocket.
- The government is undermining its own case for control over immigration by declining to assert the right arguments. They are allowing the lower courts to use legal fog to distract from the important questions and preventing the Supreme Court from being forced to stand before the American people and say that 7.2 billion people have constitutional rights. As many readers have noticed, much of the case law and references to statute we’ve been using are not even asserted by DOJ in their briefs and oral arguments. Underscoring Henderson’s point is the fact that the government agreed to kill the baby so quickly that they sent her to an abortion clinic before DOJ could even appeal to the Supreme Court! They should heed Judge Henderson’s warning.
- The president must follow through with an earlier executive order and actually clamp down on the abuse of the unaccompanied alien statutes. Typically, illegal aliens have the option to voluntarily depart, which in this case, would render the abortion issue moot. But unaccompanied minors from Central America are placed in the custody of the Office of Refugee Resettlement (ORR) to be resettled rather than deported. However, the statute was designed for victims who were “severely” trafficked, not those who traffic themselves or are smuggled in by family members to fleece America, or in this case, to seek an abortion. It’s time to follow the letter and intent of the law.
Sadly, rather than considering Judge Henderson’s warning, the GOP in Washington is concocting the next amnesty scheme that will take DACA to the next level and turn America into a magnet for the world’s impoverished teenage pregnancies to either saddle us with the cost of stolen sovereignty or turn our border agents into Planned Parenthood.
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Blaze Podcast Host
Daniel Horowitz is the host of “Conservative Review with Daniel Horowitz” and a senior editor for Blaze News.