This was the first time the administration confronted these circumstances. We examined whether there was any legal obligation for the government to assist these teens in obtaining these abortions. After careful analysis of the issue, we found there was not. Instead, we would have to review each request on a case-by-case basis, treating both the unborn child and the mother as lives deserving protection.
In October of that year, the American Civil Liberties Union sued me both in my official capacity and as an individual in what became known as the Garza v. Hargan case. This two-pronged strategy produced two separate legal justifications for our actions.
The government argued that when refusing to use taxpayer assets to assist these girls in obtaining abortions while we searched for a sponsor for the child, our office was not imposing an undue burden on obtaining an abortion. The argument did not question the applicability or appropriateness of the Supreme Court’s Planned Parenthood v. Casey abortion framework.
I, along with my boss, Acting Assistant Secretary for Children and Families Steve Wagner, made a different argument in the personal portion of the litigation. There we argued that there was a genuine issue of whether the girls in ORR care had ever effected a legal entry into the country, which calls into question whether the U.S. Constitution, particularly a 14th Amendment Substantive Due Process right to abortion, applied at all. The ACLU dropped the personal portion of the lawsuit.
Litigation on the other issues continued, however. At the District Court level, the Department of Justice position received a defeat at the hands of Judge Tanya Chutkan.
At the appellate level, the government’s position enjoyed a brief victory at the DC Circuit before a full en banc panel ruled against it, drawing a dissent from Judge Karen LeCraft Henderson, who identified the same issue Wagner and I had raised. Dissenting Judge Brett Kavanaugh agreed with the government that our approach did not impose an undue burden on the right to abortion.
After the loss, DOJ did not appeal to the Supreme Court, reasoning that Justice Kavanaugh, who had ascended to the Supreme Court, would recuse himself, and the remaining justices would split along ideological lines, leaving the D.C. Circuit ruling in place. A lull in activity followed, both in the courts and at the agency level.
All of this leaves one of the legal theories untested in the courts, however, and there are new indications that it would prevail. In June of this year, the Supreme Court provided support for this position in the case of Department of Homeland Security v. Thuraissigiam. There, Justice Samuel Alito, writing for a five-person majority (two justices dropped out of this portion of an otherwise 7-2 decision), wrote of “more than a century of precedent” saying:
**For foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.
The court further reasoned:
**When an alien arrives at a port of entry — for example, an international airport — the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of entry — even those paroled elsewhere in the country for years pending removal — are treated for due process purposes as if stopped at the border.
He concluded that portion of the analysis by writing, “An alien in respondent’s position has only those rights regarding admission that Congress has provided by statute,” and the “Due Process Clause provides nothing more.”
This reasoning confirms the position Wagner and I staked in our response to the Garza litigation. More importantly, it provides a sound legal basis for a renewed policy of refusing to assist in obtaining abortions for teens who are temporarily in the care of the United States.
At issue is not just a question of the government getting out of the way and allowing abortion to happen. There is, arguably, a requirement that the federal government accompanies these minors to their abortions (6 U.S.C. 42 (b)(2)(B) forbids ORR from releasing these teens on their own recognizance). This is indeed how we understood our legal obligations during the litigation.
In any case, from a programmatic perspective, the program never would (and ought not to) consider allowing the children to travel with a third party without its supervision. Accordingly, these abortions require federal grantees to make arrangements for the abortion, supervise the transport of the teens, accompany them during the procedure, take them back to the shelter, and administer all necessary follow-up medical care and psychological services. Our federal tax dollars, in other words, are contributing to these deaths when they occur.
The U.S. government should do all it can to avoid this entanglement in the practice of abortion. From a policy perspective, such a reform ends government assistance in the destruction of innocent human life. It also prevents America from becoming an abortion destination for teens in countries with more restrictive abortion laws.
From a political perspective, polls have found that 60 percent of Americans oppose taxpayer funding for abortion, which is what’s at stake here. Legally, the Supreme Court has affirmed that individuals do not obtain the full battery of Substantive Due Process rights, including to abortion, when they cross into the country illegally.
The decision in Thuraissigiam implies that any effort to reform the policy would receive support if instituted on the basis that these teens have not effected an entry into this country and as such, any right to abortion must come from Congress.
I’m confident President Trump would be happy to take on this fight once again. Now is the time for the administration to act. President Trump, who has earned his reputation as the most pro-life president in American history, should not miss this opportunity.Scott Lloyd is an attorney who works on policy related to health, family, and religious liberty. He lives in Virginia.