Judges Divide Bitterly Over Abortions For Immigrant Children

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Kevin Daley Supreme Court correspondent
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A divided panel of the 5th U.S. Circuit Court of Appeals sparred bitterly Thursday over an abortion and immigration case occasioned by a 14-year-old immigrant minor held in federal custody who is allegedly seeking an abortion.

Though the court did not divide as to the result, one member of the three-judge panel, Judge Edith Jones, accused lawyers representing the minor, known is court papers as “Jane Doe,” of supplanting the government’s custodial care over detained children in order to expand abortion rights.

“Doe is a pawn in a fight for control over the federal government’s relationship with unaccompanied alien children who are in custody because they haven’t been legally admitted to the United States,” she wrote, adding that the attorneys “have demonstrated by word and deed that their goal is to foster abortions.”

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The case began in late Jan. 2018, when Doe expressed interest in terminating her pregnancy. She was referred to Garza & Garza Law, PLLC, a south Texas law practice that represented several immigrant minors in related controversies. Two attorneys from the firm, Myles Garza and Rochelle Garza, were designated her guardian and lawyer by a Texas state court.

The Office of Refugee Resettlement (ORR) refused to make Doe available to her lawyers or the court. The Office said Doe changed her mind about the procedure, and produced hand-written notes from Doe withdrawing her request for an abortion. The state court then ordered ORR to cooperate fully with the Garzas, so the government sought to have the case removed to federal court.

The U.S. District Court of the Southern District of Texas denied the request, and the government appealed to the 5th Circuit.

The panel concluded that Doe should appear before the district court and make her wishes clear. If Doe no longer wishes to terminate her pregnancy, the court explained, then the government’s refusal to produce her to the Garzas and the state court would be lawful.

Jones agreed this course was best, but dissented from the panel’s decision to allow the Garzas continue representing Doe if the district court finds she does in fact want an abortion.

The two other members of the panel, Judges Patrick Higginbotham and Gregg Costa, accused Jones of creating a narrative divorced from the facts at hand.

“We pause to address a narrative that the special concurrence and dissent threads, one in which knavish, ‘agenda-driven’ lawyers circumvent an irreproachable agency to prey upon an unaccompanied pregnant minor,” they wrote. “The crucial fact—whether Jane Doe wishes to pursue an abortion—cannot be answered by needless judicial spin.”

Jones also chided the government for playing something of a legal shell game in order to vindicate short-term interests. Instead, she said, ORR should squarely confront the underlying question it appears determined to avoid.

“At some point, the government needs to confront the antecedent issue raised powerfully in Judge Henderson’s recent dissent,” she wrote. “[W]here is there a ‘constitutional right’ for unaccompanied, inadmissible aliens who have never formally ‘entered’ this country to obtain abortions in the United States?”

The Garzas were involved in separate litigation presenting a similar issue. The full U.S. Court of Appeals for the D.C. Circuit ordered ORR to release another unnamed 17-year-old minor in Oct. 2017, in order to receive an abortion. The minor aborted her pregnancy before the Justice Department appealed to the U.S. Supreme Court. In turn, the government asked the justices to sanction the attorneys.

The Court has not yet acted on that request.

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