Texas Attorney General Ken Paxton filed a brief on Monday defending the Trump administration’s unprecedented actions to deny abortion care to undocumented minors, and arguing that the court should determine that some undocumented people are not full legal “persons” within the meaning of constitutional due process guarantees.
The amicus brief was filed in the case of Garza v. Hargan, the fight over the Office of Refugee Resettlement (ORR)’s policy of refusing to allow pregnant undocumented minors in its custody access to abortion care. Attorneys on behalf of Garza, the legal representative for the minor Jane Doe and at least two other undocumented minors, have asked the court to certify their challenge as a class action in order to protect the rights of all undocumented minors in ORR’s care and to order ORR to facilitate access to abortion services for any person in its custody that needs it. The Trump administration and several conservative attorneys general oppose that request and continue to oppose granting those in its custody access to abortions.
Attorneys general from Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, and South Carolina joined Texas in defending the administration’s policy and arguing against the constitutional rights of undocumented people.
According to Paxton and the other attorneys general, the plaintiffs in the case want the court to “declare that the U.S. Constitution confers on unlawfully present aliens the absolute right to an abortion even when they have no ties to this country other than the fact of their arrest while attempting to cross the border unlawfully.” Should the court find such a right, the amici argue, there “will be no meaningful limit on the constitutional rights an unlawfully present alien can invoke simply by attempting to enter this country.”
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Granting the plaintiff’s request, they argue, would “create a right to abortion for anyone on Earth who entered the United States illegally, no matter how briefly. If Doe has a right to an abortion, it is difficult to imagine what other constitutional protections she would not have by extension.”
“Thus in this case the Court should begin with a threshold question: Do the Fifth Amendment’s substantive due process guarantees apply to unlawfully-present aliens with no connection to this country who were apprehended while attempting to cross the border? The answer is no,” the brief says.
The Supreme Court held in 1982 in Plyler v. Doe that “unlawfully present persons” are protected by the Fifth Amendment and its due process guarantees. That holding was reiterated in 2001 in Zadvydas v Davis when the Court said once a person is in this country, regardless of how they got here, they are entitled to constitutional protections.
But Paxton and the other attorneys general argue those decisions simply state that due process protections can apply to those who enter the country, not how much protection they offer. Furthermore, they argue, in the cases of undocumented people in ORR custody, they must show a substantial connection to the country in order to show they are the kind of legal person who can benefit from the full scope of due process protections—including the right to access an abortion and the right to privacy surrounding that decision.
The argument comes as the Department of Justice reportedly tried to disclose the facts and circumstances of one minor’s abortion to abusive family members.