Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan
5 Tex. A&M L. Rev. 505 (2018)
33 Pages Posted: 28 Jun 2018
Date Written: 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.
Keywords: Abortion, Immigration, Jurisprudence, Fourteenth Amendment, D.C. Circuit, Supreme Court, Immigrant, Citizen, Citizenship, NonCitizen, Constitutional Law, Constitutional Rights, Due Process, Fifth Amendment, Unlawful Alien, Illegal Immigrant, Unaccompanied Alien Minor, Garza, Azar, Hargan
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