Wednesday, July 11, 2018
Immigration Article of the Day: Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan by Kaytlin Roholt
Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan by Kaytlin Roholt, 5 Tex. A&M L. Rev. 505 (2018)
Since the inception of the abortion right in 1973, a disturbing trend has emerged in the Supreme Court’s abortion jurisprudence: The Court has nullified longstanding and universally applicable legal doctrines—and even other constitutional rights—in order to protect and expand the abortion right. But these exceptions in the context of abortion have no basis in the Constitution, and they ultimately undermine the legitimacy of the judiciary. Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) argues that the D.C. Circuit’s recent decision in Garza is an extension of this larger jurisprudence of abortion exceptionalism that plagues the case law.
In Garza, the D.C. Circuit effectively held that an unlawfully present alien, with no connections to the United States aside from her 36-day detention at the U.S. border, is entitled to an elective abortion under the Fifth Amendment. This Article argues that, in so holding, the D.C. Circuit contravened clearly established Supreme Court precedent regarding the constitutional distinction between citizenship and alien status, and it elevated the abortion right above the rights actually enumerated in the Constitution. This Article then posits that the Garza decision was influenced by the Supreme Court’s larger jurisprudence of abortion-specific exceptions.
Although the Supreme Court recently granted the Government's petition for certiorari and vacated the D.C. Circuit's decision, this issue is sure to arise again. The Court must therefore seize its next opportunity to resolve the underlying legal question in Garza regarding the constitutional rights of non-citizens.
Editor's Note: Garza is the D.C. Circuit decision from which Judge Kavanaugh dissented. It likely will be discussed in the conformation process and Kavanaugh's dissent in Garza is the first case discussed in an "Open Letter from Yale Law Students, Alumni, and Educators Regarding Brett Kavanaugh," which is receiving media attention. Judge Kavanaugh is a graduate of Yale Law School.