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.