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    • E. Christian Brugger, D.Phil. – E. Christian Brugger is a Senior Fellow of Ethics and Director of the Fellows Program at the Culture of Life Foundation in Washington, D.C. and the J. Francis Cardinal Stafford Professor of Moral Theology at St. John Vianney Theological Seminary in Denver, Colorado. He has Master degrees in moral theology and moral philosophy from Seton Hall, Harvard and Oxford Universities and received his D.Phil. (Ph.D.) in Christian ethics from Oxford in 2000.  Christian has published over 200 articles in scholarly and popular periodicals on topics in bioethics, sexual ethics, natural law theory, as well as the interdisciplinary field of psychology and Christian anthropology.  He lives on a farm in Evergreen, Colorado, with his wife Melissa and five children.
    • Helen Alvaré, J.D. – Helen Alvaré, J.D. is Honorary Fellow in Law at the Culture of Life Foundation.   Helen is an Associate Professor of Law at the George Mason University School of Law in Arlington, Virginia where she teaches and publishes in the areas of property law, family law, and Catholic social thought. Professor Alvaré serves as Consultor for the Pontifical Council for the Laity, Senior Fellow at the Witherspoon Institute where she chairs the Conscience Protection Task Force, is President of the Chiaroscuro Foundation and most recently Editor and Co-Author of Breaking Through: Catholic Women Speak for Themselves.From 2000 to Spring 2008, Professor Alvare taught at the Catholic University Columbus School of Law. Professor Alvare also lectures widely in the United States and Europe on matters concerning marriage, family and respect for human life. She is a consultant to ABC News and to the United States Conference of Catholic Bishops’ (USCCB) Marriage and Pro-Life Committees. In 2008, Pope Benedict XVI named Professor Alvare a Consultor to the Pontifical Council for the Laity.From 1987-2000, Professor Alvare was an attorney with the USCCB’s General Counsel Office and director of information and planning for the Secretariat for Pro-Life Activities. In these positions, she testified before the…
    • Jennifer Kimball Watson, Be.L. – Jennifer Kimball Watson joined Culture of Life Foundation as Executive Director in November of 2007. She is an Adjunct Professor of Bioethics at the Ave Maria School of Law in Naples, F.L.. Previous to her work with the Culture of Life Foundation Jennifer was a Wilbur Fellow of the Russell Kirk Center for Cultural Renewal located in Michigan. Jennifer earned a Licentiate in Bioethics from the Pontifical Athenaeum Regina Apostolorum School of Bioethics in Rome.  Her prior undergraduate studies were in International Administration and Government Policy at the Evergreen State College in Washington State.Jennifer’s areas of specialization include Eugenics in Artificial Reproductive Technologies, Heterologous Adoption and Transfer of Embryos, The Womb in Reproductive Technologies, and the Role and Significance of The Medical Act. She interviews with National Conservative and Christian Radio Syndicates as well as several foreign and secular reporters. Jennifer has spoken on the dignity of women and women’s social issues to various audiences since 1999 and has spent several years in advocacy work with various international organizations in the field of life sciences. From 2000 to 2006 she recruited and coordinated grass-roots social policy efforts that consisted of a public and private sector network of professionals and academics…
    • Margaret Datiles Watts, J.D. – Margaret Datiles Watts, J.D., is Culture of Life Foundation’s Associate Fellow in Law. Maggie is member of Washington, D.C. and Maryland bar associations.  She holds a B.A. in Philosophy (Phi Beta Kappa and Magna Cum Laude) and a Certificate in Classical Philosophy from the University Honors Program at The Catholic University of America. She earned a Juris Doctorate from Columbus School of Law at The Catholic University of America, where she served as a Research Fellow at CUA Law’s Marriage Law Project. She also studied Roman Law and EU Law at Magdalene College, University of Oxford, England.A former Fellow and Staff Counsel for Americans United for Life, Datiles co-authored an amicus curiae brief to the Supreme Court of the United States in the landmark partial birth abortion case, Gonzales v. Planned Parenthood, et al., companion case to Gonzales v. Carhart (2007). She also advised legislators, policy groups and the media (radio and newspapers) on abortion and bioethics laws and drafted pro-life model legislation.Her areas of research and/or publication include legal issues surrounding abortion, government funding restrictions for abortion, contraception, healthcare rights of conscience, stem cell research, artificial reproductive technology, population decline, physician-assisted suicide, euthanasia, and same-sex marriage.She currently publishes articles…
    • William E. May – William E. May is Senior Research Fellow of the Culture of Life Foundation and emeritus Michael J. McGivney Professor of Moral Theology at the John Paul II Institute for Studies on Marriage and Family at The Catholic University of America in Washington, D.C., where he taught the academic years from 1991 through 2008 after teaching for 20 years at The Catholic University of America. He is the author of more than a dozen books. The 2nd edition of his Catholic Bioethics and the Gift of Human Life was published by Our Sunday Visitor (2008), and a substantively revised 3rd edition is scheduled for publication in 2013. In 2003 Our Sunday Visitor published a revised and expanded edition of his Introduction to Moral Theology. Among his other books are: Marriage: The Rock on Which the Family Is Built (San Francisco: Ignatius, 1995; 2nd revised edition, 2009)); and, with Ronald Lawler OFM Cap and Joseph Boyle, Catholic Sexual Ethics (rev. and enlarged ed. Huntington, IN: Our Sunday Visitor, 1998; 2nd rev. edition, 1998; a 3rd edition, substantively revised by May alone, was published in 2011); Theology of the Body: Genesis and Growth (Boston: Pauline Books & Media, 2010) He has published more…
    • Frank J. Moncher, Ph.D. – Dr. Frank Moncher received his Ph.D. in Clinical-Community Psychology from the University of South Carolina in 1992, following which he spent several years on faculty of the Medical College of Georgia, with a focus on Adolescent Intensive Services. In 2000 he moved to the Washington, DC area to teach at a graduate school of psychology which had a mission of integrating the science of psychology in the context of the Catholic Christian view of the human person. Concurrent with this, over the past 12 years he has consulted with 11 different religious orders and 4 dioceses to provide psychological evaluations of aspirants and candidates, as well as consulting with different diocesan marriage tribunals.His research interests include the integration of Catholic thought into psychotherapy, child and family development issues, and integrated models of assessment of candidates for the priesthood and religious life. Frank is published in Families in Society: The Journal of Contemporary Human Services, Adolescence, Journal of Interpersonal Violence, Edification, and the Journal of Psychology and Christianity, as well as contributing to several book chapters on children, families, and religious issues.Since 2010, Dr. Moncher has worked for the Diocese of Arlington and Catholic Charities as a psychologist and consultant.  His…
    • Steve Soukup – Fellow in Culture and Economy Steve Soukup is the Vice President and Publisher of The Political Forum, an “independent research provider” that delivers research and consulting services to the institutional investment community, with an emphasis on economic, social, political, and geopolitical events that are likely to have an impact on the financial markets in the United States and abroad. Mr. Soukup has followed politics and federal regulatory policy for the financial community since coming to Washington in 1996, when he joined Mark Melcher at the award-winning Washington-research office of Prudential Securities. While at Prudential, he was part of the Washington team that placed first in Institutional Investor magazine’s annual analyst survey for eight years in a row. Mr. Soukup left Prudential with Mr. Melcher to join Lehman Brothers in the fall of 2000 and stayed there for two years, before leaving early in 2003 to become a partner at The Political Forum. While at Lehman, Mr. Soukup authored macro-political commentary and followed policy developments in the Natural Resources sector group, focusing on agriculture and energy policy. He also headed Lehman’s industry-leading analysis of asbestos litigation reform efforts. At The Political Forum, Mr. Soukup was initially the editor and junior partner,…
    • Dr. Pilar Calva, M.D. – Dr. Calva is a medical doctor specializing in Human Genetics with a Cytogenetics subspecialty from The University of Paris, France. In Paris, she was the under-study to the world-renowned Professor Jerome Lejeune, who is considered by some to be the father of modern genetics. In 1958, Lejeune discovered that an extra 21st chromosome is responsible for Down syndrome, or Trisomy 21. Lejeune dedicated his life tirelessly and unfailingly to defend the unborn, especially those with Down syndrome, testifying before scientific conferences and lawmakers. He was appointed by Pope John Paul II as the first President of the Pontifical Academy for Life. In Dr. Calva’s own words: When I arrived in France, I lived a life divided between faith and reason. I thought that from Monday to Saturday, I put on my white coat for my scientific tasks, and Sunday was the day I took off the white coat, put on my crucifix and dedicated myself to my religious duties. Professor Lejeune truly converted me, making me see that one can wear the white coat and the cross, at the same time. That is, one can fly with the wing of faith and the wing of reason. Inspired by the life…
    • Elyse M. Smith – Elyse M. Smith is an associate attorney with a northern Virginia law firm working in nonprofit and church law, estate planning, and civil litigation. Ms. Smith graduated magna cum laude from Ave Maria School of Law in Naples, Florida, where she served on Law Review and was published in the Ave Maria International Law Journal. She was named “Most Dedicated Editor” for her work on Law Review. Ms. Smith earned her bachelor’s degree in Foreign Affairs from the University of Virginia.  
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  >  Issue Briefs  >  Life  >  Do Illegal Immigrants Have Constitutional Rights?

Do Illegal Immigrants Have Constitutional Rights?

Posted: January 16, 2018
By: Margaret Datiles Watts, J.D.
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Over two hundred years of Supreme Court law have established that persons who enter the country unlawfully and bear no connections to the U.S. do not have the full scope of affirmative constitutional rights of a U.S. citizen.  This long-standing principle was recently contradicted by a dangerous, unprecedented court decision by the D.C. District Court.

The case, Garza v. Hargan, held that a pregnant alien minor who attempts to enter the United States unlawfully is entitled to an absolute constitutional right to elective abortion that is not medically necessary.  In her dissent, Judge Henderson states that the court’s conclusion “rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”

The case involved a pregnant 17-year-old girl (“Jane Doe”) who was apprehended in Texas while illegally entering the country from Central America.  As a minor, she was placed under government custody in a Texas shelter funded and operated by the federal Office of Refugee Replacement (ORR).  While in government detention, the minor sought to have an abortion.

However, under ORR policy, the government does not fund or facilitate elective abortions that are not medically necessary on undocumented minors who are under its custody.  Doe had no medical health reasons necessitating an abortion.  Doe could have returned home at any time, or her lawyers could have pursued an expedited process to release her into the custody of a sponsor.

Jane Doe filed a lawsuit, invoking her purported Fifth Amendment rights.  The D.C. District Court issued a temporary restraining order in favor of Doe, and the D.C. Circuit Court of Appeals declined to stay that order.  On October 24 at 4:30 am, with the restraining order in place and assistance from her attorneys, the minor obtained an abortion to end the life of her 15-week-old baby.

The government has petitioned the Supreme Court to vacate the court of appeals decision.   The case is currently pending before the Supreme Court.

The “Sliding Scale” and Immigrant Rights

The U.S. Constitution recognizes the humanity of all people who are present within its borders, regardless of whether they enter legally or illegally, are temporary or permanent.  Undocumented immigrants are constitutional “persons,” but they do not have all the rights of a U.S. citizen.  The Constitution protects all immigrants (legal and illegal) against “wanton or malicious infliction of pain” by government officials and from “gross physical abuse.”  See, e.g., Castro v. Cabrera, 742 F. 3d 595 (5th Cir. 2014).  The Supreme Court also recognizes that mere presence gives all immigrants a limited set of due process rights relating to their process of immigration, deportation or detention.  See, e.g., Demore v. Kim, 538 U.S. 510 (2003).

The protections that illegal immigrants have against harm are negative liberty rights.  The right to an elective abortion is an affirmative liberty right.  Centuries of Supreme Court precedent establish that illegal immigrants who have not developed connections with the country do not have the full scope of affirmative liberty rights that are reserved for citizens. The vesting of the full scope of constitutional rights occurs upon naturalization, when a person becomes a citizen – it does not occur when one presents oneself unlawfully at the border.  The D.C. court’s decision conflicts with these constitutional principles.

The Supreme Court has established that when an immigrant enters legally and develops substantial connections with America, his/her rights expand accordingly, generously and easily, on a “sliding scale” basis.  The D.C. court disregarded an entire body of law by ignoring the Supreme Court’s sliding scale standard for determining immigrant rights.  The 5th Amendment right to due process is not an absolute “all or nothing” right.  The rights “due” to an immigrant are not the same as those “due” to a U.S. citizen. The kind and degree of rights “due” to Doe should have been determined on this sliding scale basis, ascending according to the degree of connections she has with the country.  See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

“Plowing Dangerous Ground”: Why Garza v. Hargan is Bad Law

The D.C. court’s decision incorrectly creates a new constitutional right of undocumented immigrant minors in government custody to elective, non-medically-indicated abortion on demand.  No court has ever recognized the existence of such a right.  Judge Henderson stated that the ruling “plows new and dangerous ground,” as it would make America a global abortion destination.  She wrote that “pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip.”

The decision also undermines current immigration and security policies by proclaiming unlimited constitutional rights would be awarded to persons who attempt to enter the country illegally.  In a Supreme Court amicus brief drafted by Texas Attorney General Ken Paxton on behalf of Texas and ten other states, Paxton explained:

This perverse incentive to unlawfully enter the country will burden the public at large as well as the government entities that will be tasked with honoring these newfound rights – while simultaneously trying to prevent and deal with unlawful immigration.

In short, Jane Doe’s constitutional rights were not threatened or violated by the ORR’s policy not to fund or facilitate medically-unnecessary abortions.  The only person who was deprived of life and liberty without due process of law was the child whose life was tragically ended.

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