Linda Greenhouse, the former Supreme Court reporter for the New York Times, is often wrong but never in doubt. These days, she has no doubt that “we’re all living in Sheriff Joe [Arpaio] country now.”
How so? Because of the Trump administration’s position on whether a 17 year-old illegal immigrant in federal custody can obtain an immediate abortion on demand.
A three-judge panel ruled, in a 2-1 decision, that the girl must delay plans for an abortion while the U.S. Department of Health and Human Services signed off on a person who could act as an official U.S. sponsor, allowing her to get the procedure without government involvement. But the full D.C. Circuit overturned that ruling by a “party-line” vote of 6-3.
The abortion occurred almost immediately thereafter, before the Justice Department was able to appeal to the Supreme Court. Ed Whelan has described the procedural shenanigans employed by the ACLU to make this happen.
The Justice Department has asked that Court to vacate the D.C. Circuit’s decision as moot, so as to negate it as a precedent. And, of course, the government continues to maintain the legal position it took in the girl’s case.
All of this is too much for Greenhouse to bear. She is especially outraged by this “breathtakingly audacious” passage in the Justice Department’s brief:
Under this court’s case law, the government may adopt policies favoring life over abortion; it is not obligated to facilitate abortion; and the government acts permissibly when it does not place an undue burden in a woman’s path.
Here, the government imposed no undue burden: Ms. Doe contended that the government’s actions as her custodian were obstructing her access to an abortion in violation of the Fifth Amendment, but she could have left government custody by seeking a voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States.
Given those options, the government was under no obligation to facilitate Ms. Doe’s abortion.
Greenhouse finds the government’s “no undue burden” argument “ridiculous” because abortions are not legal in the girl’s home country. She seems to favor a system in which any pregnant girl living in a country that outlaws abortion can come to the U.S., be seized at the border, demand an abortion here, and get it.
However one views the poem on the Statue of Liberty, it does not say “give me your pregnant women yearning for an abortion.”
I agree with Judge Karen LeCraft Henderson. In dissent, she wrote that to conclude the illegal immigrant has a constitutional right to an elective abortion “rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”
The Trump administration, which Greenhouse says is trying to impose Sheriff Joe’s world on us all, did not even make this common sense argument. It just argued that the government is not required to facilitate access to abortions, and wanted to find a sponsor who could take custody of the illegal immigrant so she could have the abortion without the government “facilitating” it.
Do you find this position “breathtakingly audacious”? I don’t.