Dissenting from a ruling in the U.S. Court of Appeals for the District of Columbia that was based on the assumption that an illegal alien detained by the federal government has a constitutional right under the Due Process Clause of the Fifth Amendment to get an abortion in the United States, Judge Karen LeCraft Henderson argued that, if the court’s assumption were correct and carried to its logical conclusion, a detained illegal alien would also have the right to donate to U.S. political campaigns and keep and bear arms.
“If the Due Process Clause applies to J.D. [Jane Doe] with full force, there will be no reason she cannot donate to political campaigns, despite U.S.C 3-121’s prohibiting on contributions to nonresident foreign nationals inasmuch as freedom of political expression is plainly fundamental to our system of ordered liberty,” wrote this judge.
“I see no reason she may not possess a firearm, notwithstanding 18 U.S.C. 922 (g)(5)’s prohibition on doing so while ‘illegally or unlawfully in the United States,’ inasmuch as ‘the Second Amendment conferred on individual right to keep and bear arms,’ she wrote.
Judge Henderson’s observations came in Garza v. Hargan. This case involves a 17-year-old alien who was apprehended in September while illegally entering the United States, and who is now in federal custody. Having arrived 8 weeks pregnant, she is now 16 weeks pregnant.
Key excerpt from Judge Karen LeCraft Henderson’s Dissent in Garza v. Hargan:
The issues in the court were whether this in illegal alien in federal custody has a right to obtain an abortion and whether the federal government can be forced to facilitate that abortion.
The American Civil Liberties Union, which represented the illegal alien, argued that the Due Process Clause of the Fifth Amendment did guarantee her the right to an abortion here—even while she was illegally here and in federal custody.
“There is no question that Defendants are violating J.D.’s Fifth Amendment rights by preventing J.D. from obtaining an abortion,” the ACLU said in an Oct. 13 filing in the U.S. District Court in the District of Columbia.
Rather than argue the question of whether Jane Doe had a “right” to an abortion in the United States, the Department of Justice argued that the federal government should not be forced to facilitate her procurement of an abortion.
Judge Henderson rejected the argument that the Fifth Amendment grants an illegal alien in federal custody a right to an abortion in the United States and upbraided the administration for not rebutting this element of the ACLU’s case.
Asks Judge Henderson in her dissent: “Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal lawsuit—have a constitutional right to an elective abortion?
“The government has inexplicably and wrongheadedly failed to take a position on that antecedent question,” she wrote.
“I say wrongheadedly because to me the answer is plainly—and easily—no,” wrote this judge.
“To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country,” the judge concluded.
“Under my colleagues’ decision,” she said, “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,” she said.
Judge Henderson then explained what she sees as the logical extensions of the incorrect decision her colleagues on the court made in assuming this illegal alien held in custody had a right to an abortion under the Fifth Amendment.
“[A]s a result of my colleagues’ decision,” she said, “J.D. will soon be on her way to an abortion procedure she would not receive absent her invocation of the Fifth Amendment.”
Henderson argued that because this illegal alien is neither a citizen nor a permanent resident–and because she has never even legally entered the United States–she cannot invoke the Fifth Amendment to claim rights here.
“J.D. is not a citizen,” Judge Henderson wrote. “She is not a permanent resident, legal or otherwise. According to the record, she has no connection to the United States, let alone ‘substantial’ connections. Despite her physical presence in the United States, J.D. has never entered the United States as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders.”
“Because she has never entered the United States, J.D. is not entitled to the due process protections of the Fifth Amendment,” said the judge.
If the opposite were true, the judge concluded, the logical follow-ons would be that she not only has a right to an abortion here, but other liberties protected by the Due Process Clause:
“Having discarded centuries of precedent and policy, the majority offers no limiting principle to constrain this court or any court from following today’s decision to its logical end. If the Due Process Clause applies to J.D. with full force, there will be no reason she cannot donate to political campaigns, despite U.S.C 3-121’s prohibiting on contributions to nonresident foreign nationals inasmuch as freedom of political expression is plainly fundamental to our system of ordered liberty. … I see no reason she may not possess a firearm, notwithstanding 18 U.S.C. 922 (g)(5)’s prohibition on doing so while ‘illegally or unlawfully in the United States, inasmuch as ‘the Second Amendment conferred on individual right to keep and bear arms.’… Even the government’s ability to try accused war criminals before U.S. military commission in theater must be reconsidered as it is premised on the Fifth Amendment’s territoriality requirement, which today, by vacating the say, the Court has so summarily eroded.”
Written by Terence P. Jeffrey and published by CNS News ~ October 25, 2010.
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