Texas A&M Law Review

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Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of choice was the constitutional distinction between citizenship and alien status. In Garza v. Hargan, the D.C. Circuit—sitting en banc—pronounced, for the first time, that the Constitution guarantees the right to an abortion on demand to unlawfully present aliens. The Supreme Court has long held, however, that the scope of constitutional rights accorded to unlawful aliens is limited. Rather than confront this inconvenient precedent, the D.C. Circuit entirely ignored the antecedent question of whether unlawfully present aliens are entitled to the Fifth Amendment abortion right. Instead, the court simply assumed that they are. This holding is wrong for two reasons. First, by effectively deciding that an unlawful immigrant minor, in federal custody, whose only contact with the United States was her detention at the U.S. border, was entitled to the full scope of Fifth Amendment rights, the D.C. Circuit ignored Supreme Court precedent mandating that a person must have “developed substantial connections with the country” before being accorded constitutional protections. Second, by carving out this special exception for the abortion right, the court prioritized that right over all other constitutional protections.

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