In abortion case, we let two children down: Jane Doe and Baby Doe

Travis Weber is Director of the Center for Religious Liberty at Family Research Council.  This article appeared in The Hill on October 27, 2017.

“Remember, we are talking about a child here.”

When a federal judge with pro-abortion leanings lets loose such a nugget of truth, it is often accidentally uttered. This appears to be the case with this darkly ironic statement, Judge Patricia Millet made in her concurrence in the D.C. Circuit’s Tuesday en banc decision in Garza v. Hargan, ordering an underage girl to be permitted an elective abortion after being detained while unlawfully trying to cross the border into the U.S.

I agree with Judge Millet — we are talking about a child here, actually, two of them. The first is the underage girl Jane Doe, and the second is the child in her womb, Baby Doe; and because Baby Doe had no one to speak for her, an abortion was permitted, and the baby’s life was ended sometime Wednesday morning in Texas. Meanwhile, the American Civil Liberties Union (ACLU), representing Jane Doe, celebrated.

The sad sequence of events should never have been given legal sanction to begin with, for two reasons:

1. As the Supreme Court observed in Beal v. Doe, the government has an “unquestionably strong and legitimate interest in encouraging normal childbirth”—an interest affirmed by the Court in Maher v. Roe, Harris v. McRae and Webster v. Reproductive Health Services; and

2. In the context of immigration and border security, constitutional rights are not automatically granted to someone who has presented herself at the border and not “effected” a proper entry but instead was taken into custody. No legal precedent declares such a person has a constitutional right to abortion, and given the government’s legitimate interest in promoting life, the courts should not have signed the ACLU’s abortion permission slip here. The price for their error was the life of Baby Doe, and the impact this abortion will have on the life of Jane Doe.

Indeed, the courts especially should have ensured that Baby Doe was not overlooked in this process. Who was to defend her? Not the ACLU, which celebrated her demise. Not Judge Millett and those on the D.C. Circuit, who signed off on her death.

HHS and especially Scott Lloyd at the Office of Refugee Resettlement tried to protect her — along with her mother — and should be praised for doing so. Both children were in the government’s care, being attended to with taxpayer dollars, and both should be protected. But the courts would nevertheless have their way with Baby Doe. Judge Brett Kavanaugh urged caution and prudence in his dissent, but the majority cast off these virtues along with the rule of law.

The development of this case shows that only a radical expansion of abortion would satisfy Judge Millet and the ACLU. Indeed, the ACLU rushed Jane Doe to get the abortion Wednesday morning before the government could even appeal. If there was ever a case when a vulnerable girl was used as a pawn to expand abortion on demand, this was it. All in the name of “justice.”

Second, this decision undermines the entire federal government in an area the executive branch has significant constitutional control over: border security and foreign affairs. As Judge Karen Henderson put it in dissent, the en banc decision “is at odds with Supreme Court precedent,” and “plows new and potentially dangerous ground” by completely breezing past any analysis of the fact that someone arriving at a U.S. border has to actually enter (not simply be detained) to be considered a person “within” the United States for the sake of constitutional rights.

One could easily imagine the consequences of adopting a policy to the contrary. Enemies of the U.S. would simply have to present themselves at the border, and the federal government would be bound to grant them the full Bill of Rights conferred on every American citizen. Those entrusted with guarding our national security would have their hands tied by those looking to do us harm. Indeed, this is why the Supreme Court has rejected constitutional claims to freedom of expression, freedom of association, freedom to keep and bear arms, and other rights in this context.

There is no abortion exception to this doctrine. Yet by granting one, as Judge Henderson observed, the D.C. Circuit has elevated “the right to elective abortion above every other constitutional entitlement” and has just taken a step toward making America a global abortion haven. Now, “pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip” to the U.S. While we can’t know for sure, that is exactly what may have happened in this case, as there is some evidence Jane Doe “left her home country because of her pregnancy.”

This decision only pushes abortion ideology further into our legal fabric, in contravention of Beal, Maher, McRae, Webster, and other cases. Rather than have government neutrality on the issue of abortion on demand, the D.C. Circuit has expanded the government’s role dramatically. Judge Millet wishes to follow the Constitution. I agree. She should therefore adhere to the Supreme Court’s instruction that constitutional rights are not simply granted to those merely on the “threshold of initial entry” to the United States.

Before the D.C. Circuit’s radical ruling this week, no court had ever declared that a “right” to abortion applied to anyone who shows up along our borders and is taken into custody. There is good reason for this, as ruling otherwise creates an incentive that could lead to the U.S. quickly becoming a worldwide destination for women seeking abortions on demand.

Sadly, instead of holding out America as a haven for those “huddled masses yearning to breathe free,” Judge Millett and her fellow travelers seem to want the Statue of Liberty inviting the masses yearning for free abortion.