Law & the Courts

In an Abortion Case, a Federal Court Turns the Supremacy Clause Upside Down

All to ensure that a 14-year-old girl can get an abortion. But she doesn’t want one.

Yesterday, over a scathing dissent by Judge Edith Jones, the Fifth Circuit Court of Appeals held that the federal government must submit to the authority of a state court.

The case, Jane Doe v. Office of Refugee Resettlement, represents the latest clash between the ORR and activists seeking to obtain abortions for unaccompanied minor aliens. This case differs, though, in one significant respect from the class-action lawsuit that made headlines when the American Civil Liberties Union sued to force the government to facilitate abortions for several minors in the ORR’s custody: The Jane Doe in this case does not want an abortion.

According to Thursday’s court decision, Jane Doe is a “barely-14-year-old” girl who was detained at the U.S.–Mexican border. In mid January, immigration officials placed Doe in a Texas shelter for unaccompanied minors, and there she underwent a medical examination that revealed she was six weeks’ pregnant. At some point, Doe indicated to a “person interviewing her about her needs” that she wanted an abortion. The interviewer referred Doe to Janes Due Process, an organization that promotes itself as helping “Texas minors with judicial bypass for abortion.” Janes Due Process then somehow arranged for Jane Doe to be represented by two attorneys, Rochelle Garza and Myles Garza.

Without notifying the ORR, which has legal custody over Jane Doe, the Garzas petitioned a Texas state court to be appointed Doe’s legal representatives. A state-court judge appointed Rochelle Garza to be Doe’s guardian ad litem and made Myles Garza her attorney ad litem. The Garzas then scheduled a February 8 hearing before the state-court judge to obtain a “judicial bypass” of the parental-consent requirement for an abortion.

Doe, however, later changed her mind and told the ORR that she did not want an abortion. Doe also claimed that the Garzas had made her sign paperwork appointing them her legal representatives for immigration purposes and maintained that she no longer wanted them to represent her. ORR informed the Garzas of this development and refused to release Doe for the court hearing or to allow her to meet with the Garzas. Instead, on February 8, the ORR filed papers in federal court to remove the proceedings from the state-court system.

A federal district court refused to accept the case, sending it back to the Texas state court. The ORR immediately appealed to the Fifth Circuit Court of Appeals and yesterday, following expedited proceedings, vacated the district court’s order. Instead, in a 2–1 decision, the majority ruled that the government must present Jane Doe to a federal court and allow the judge to meet alone with her to determine whether she wants an abortion. The Fifth Circuit then held that “if the court finds that Jane Doe does not wish to abort her pregnancy, the matter is concluded, and the district court should dismiss the case. If the court finds that Jane Doe wishes to proceed, the district court will instruct the government to cooperate either with the Garzas, or another guardian and attorney ad litem the district court may choose to appoint.”

On the surface, this decision seems a victory for the ORR, which, after all, sought to prevent Doe from being forced to attend the state-court proceedings, maintaining that she did not want an abortion. But the Fifth Circuit’s decision goes much further, proves devastating to the ORR’s custodial role, and is impossible to reconcile with the constitutional principle of federal supremacy.

The Fifth Circuit had one narrow question before it: Could the ORR remove the state-court proceedings to the federal court system? Judge Jones concisely answered that question in her dissent, writing that federal law “dispels any doubts about the propriety of removal,” as it authorizes “removal of any civil action commenced in state court and ‘directed to’ any federal officer or agent or federal agency.”

The majority opinion, though, ignored this question and instead claimed that “this case asks whether the Office of Refugee Resettlement (‘ORR’) is discharging its federal obligation to the benefit of an unaccompanied alien minor in refusing her access to Texas’s judicial bypass regime for the purpose of an abortion — the sole basis of which hinges on Jane Doe’s wishes.” The court then concluded that if Doe wants an abortion, the government must cooperate with the state-appointed guardians, adding that “the federal government possesses an independent obligation to produce her for the bypass proceedings that springs from its statutory and constitutional duties, a matter the government does not address” (emphasis in the original).

When abortion is involved, judges seem always to discover a new carve-out to previously well-established principles of law.

But, as Judge Jones explained in her dissent, “removal jurisdiction exists so that the district court may conduct ‘a trial upon the merits of the state-law question free from local interests or prejudice.’” Therefore, should Doe reverse course again and indicate a desire for an abortion, the “bypass proceedings” should occur in the federal court, following the federal court’s appointment of a truly neutral guardian ad litem.

The flaws in the Fifth Circuit’s analysis go much further, though. The federal appellate court has sanctioned state-court interference with the ORR’s execution of federal law, in violation of the supremacy clause in Article 6 of the Constitution. For instance, the ORR is charged with “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.” In fulfilling this duty, the ORR requires the agency director to approve of requests for serious medical procedures, including abortions. But “the ex parte appointment of the guardian ad litem and legal guardian in the state court deliberately conflict[s] with this statutory scheme.” The state court also ordered the ORR to provide the Garzas with confidential records related to Doe, in violation of federal regulations.

Judge Jones encapsulated these problems in her dissent, writing that “there is simply no precedent in this court for requiring a federally mandated legal guardian of unaccompanied alien children to subserve state-appointed lawyers and for this court to ignore the constitutional and statutory relationships created by the federal government’s control over immigration. The Supremacy Clause is turned upside down to hold or imply otherwise.”

This topsy-turvy result should come as no surprise to those well versed in abortion jurisprudence: When abortion is involved, judges seem always to discover a new carve-out to previously well-established principles of law. The Fifth Circuit’s decision yesterday is but the latest example.