This column by ACRU Senior Fellow Robert Knight was published October 22, 2017 by The Washington Times.
Under the Trump administration, the federal government no longer wants to be complicit in abortions performed on under-age teens who enter the country illegally.
To the American Civil Liberties Union (ACLU), refusing to facilitate the killing of these unborn children is “unprecedented, it’s unconstitutional, and it’s also unconscionable,” according to Brigitte Amiri, a senior ACLU staff lawyer.
Last Wednesday, U.S. District Judge Tanya A. Chutkan, an Obama appointee, sided with the ACLU by ruling that a pregnant girl from Central America has a constitutional right to an abortion. The unborn child’s right to life? Nonexistent, despite the fact that at nearly 15 weeks, babies are little human beings with a head, neck, arms and legs, organs and sensitivity to light, not to mention a unique DNA.
That’s just “tissue,” we’re told. There is no right to life under the ACLU’s — and the post-Roe v. Wade law’s — selective compassion.
Ms. Amiri, who filed the class-action suit on behalf of the 17-year-old mother, said, “Blocking access to abortion for unaccompanied minors is downright cruel.” Wonder what her client’s unborn child would think of that?
The Trump administration’s refusal to aid in abortions is a 180-degree turn from the Obama administration, under which tax dollars were used to pay for transporting illegal alien minors to abortion clinics.
Judge Chutkan, who seems to pine for those good old days, acceded to the ACLU’s claim that illegal aliens have a constitutional right to an abortion. But she did not go whole hog. Her ruling in the U.S. District Court for the District of Columbia did not include a preliminary injunction requested by the ACLU to prevent federal agencies from blocking abortions for other unaccompanied children here illegally.
On Thursday, the U.S. Circuit Court of Appeals for the District of Columbia ruled that the girl can receive abortion counseling and a sonogram, which are required for abortions in Texas, but blocked Judge Chutkan’s order to officials to take her to a clinic to have an abortion. The court was to hear oral arguments on Friday.
The case is important not only given its life or death issues for this particular unborn child and its mother, but because an ACLU victory would “effectively announce that anyone on Earth has any number of constitutional rights simply by being apprehended at the United States border,” Texas Attorney General Ken Paxton wrote.
The 14th Amendment does say that, “No state shall deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There is no question that illegal aliens are persons entitled to basic protections such as due process. Whether that extends to government’s facilitating abortions is the question here.
Then there’s the parental rights aspect. The ACLU says the government is forcing the girls to tell their parents about their pregnancies. I can understand why the ACLU and their ally Planned Parenthood don’t want parents to get in the way when a young daughter is being trotted off by strangers to the abortionist.
They also wrongly portray her as a sort of prisoner of the state, but the government is acting in loco parentis — parental custody. The ACLU wants the court to treat her as if she’s in a penal institution.
The ACLU also argued that the girl was taken to a crisis pregnancy center instead of an abortionist and underwent an ultrasound, which would have shown the growing life within her. The left is all for requiring that more information be given consumers — unless it involves abortion.
Let’s circle back to the ACLU’s contention that withholding an abortion is “cruel.”
Well, what’s compassionate then? How about amnesty policies that attract thousands of unaccompanied minors to risk a precarious route through Mexico, where some are robbed, assaulted or raped? And if they make it across the U.S. border, the ACLU’s solution for the rape victims is to offer to help them kill their unborn babies.
Some civil rights are not open-ended. They are a zero-sum game, enforced at the expense of someone else’s rights. Over the years, based on court rulings and political consensus, a hierarchy of rights has been established in which some rights have more clout in the law than others. Property rights, for instance, are not absolute. They can be abridged in defense of other rights, such as public safety or the right not to be denied accommodations because of race, ethnicity or sex.
However, there is no right to abortion in the U.S. Constitution, so a gaggle of liberal justices invented it out of whole cloth in 1973 and elevated it above the right to life itself, a right specifically mentioned in the Constitution’s due process clauses.
Ignoring specific rights, such as life or freedom of religion while conjuring brand new ones, such as the “right” to an abortion, a brideless marriage or allowing males identifying as females to use the ladies’ locker room, is the ACLU’s specialty.
A few years ago, the Family Research Council issued tongue-in-cheek awards for ludicrous judicial rulings or decrees. Honorees got the “Invisible Ink” award for discovering new rights that are utterly absent from the written Constitution. Others got the “Out of Order” award for ignoring what is clearly written.
Not a day passes when the ACLU’s culturally corrosive lawsuits would not qualify for one or the other.