Abortion, Illegal Immigrants, and Moral Obligation
On October 2017, an unaccompanied minor, Jane Doe, illegally crossed the border from Mexico into the United States. She was detained and placed into the custody of the Office of Refugee Resettlement (ORR) which is a part of the Federal Government’s Health and Human Services (HHS). She underwent a medical examination and was found to be pregnant. She requested an abortion. The ORR refused her request citing 8 U.S.C 1229c; 8 CFR 236.3, 1240 which states “ a minor may le[ave] government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States.” 1 Respondent Rochelle Garza, Doe’s guardian ad litem, filed a putative class action on behalf of Jane Doe and “all other pregnant unaccompanied minors in ORR custody.” 1 The Supreme Court of the United States (SCOTUS) heard, Alex M. Azar, II, Secretary of Health and Human Services,et al. v. Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on June 4th, 2018. The events leading up to SCOTUS’s decision are integral.
The District Court issued a temporary injunction on October 18th, 2017. Jane attended pre-abortion counseling as required by Texas law on October 19th. When the Court of Appeals for the District Court of Columbia vacated the temporary injunction issued by the previous Court, it also remanded the case to District Court. The District Court ruled in favor of Garza's attorneys, allowing Jane Doe to seek an abortion, on October 24th, 2017. The HHS’s attorneys informed Garza's attorneys they would be filing an appeal on October 25th believing Jane Doe would not have an abortion until October 26th. The attorney’s hired by Garza to represent Jane Doe scheduled her abortion for October 25th. Garza's attorneys failed to notify the opposing counsel. SCOTUS ruled the case moot and remained quiet on HHS’s claims that the actions of Doe’s attorneys were unethical after the District Court ruled in favor of Garza's attorney.
The case was moot because the action to be decided had already occurred. An abortion cannot be reversed. The lower courts will decide if it is the government’s legal obligation to grant an abortion requested by an illegal immigrant while the immigrant is under the care of the government. As a Pragmatist, I question if the United States government should be held liable if it does refuse to perform an abortion requested by an illegal immigrant. Does the United States have a moral or legal obligation to the immigrant? It depends.
Texas has restrictive abortion laws which prohibit access to women who are legal residents of the state. It would be unjust to allow one set of laws to one group and another set of laws to another group. Furthermore, to allow a group who are not citizens to have greater access to health care than those who are legal citizens would create an undue burden on the women denied access. Morally, access to health care services should be just and not favor any group. I would say the United States government does not have a moral or legal obligation to perform an abortion requested by an
illegal immigrant unless it is an abortion requested because of a medical emergency. As a nation, we have a moral obligation to care for those who are in need regardless of financial or social status. What, if any, obligation did the Garza attorneys have to report the scheduled appointment to the opposing counsel? I say none.
Attorneys do not have a legal or ethical obligation to report medical procedures which
are time sensitive to opposing counsel. Attorneys do have a legal responsibility to protect their clients from harm. Ethically, Garza’s attorneys acted in the best interest of their client. The termination of a pregnancy is time sensitive. The attorneys knew the opposing counsel would file an appeal that would further delay Jane Doe from receiving access to medical care. Their ethical obligation was to care for their client.
This case raises more questions than the SCOTUS answered. The lower courts are charged with the duty of answering the legal obligations the government has to illegal immigrants. Society, however,is responsible for deciding its moral obligations to those seeking a better life even if the route is illegal.
Alex M. Azar,II, Secretary of Health and Human Services, et al. v. Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., NO 17-654 (2018).