Amicus Curiae Brief — Alex M. Azar, II, Secretary of Health and Human Services, et al., Petitioners v. Rochelle Garza, as Guardian ad Litem to Unaccompanied Minor J. D.

No. 17-654

IN THE

Supreme Court of the United States

————

ERIC D. HARGAN, ACTING SECRETARY OF

HEALTH AND HUMAN SERVICES, ET AL.,

Petitioners,

v.

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO

UNACCOMPANIED MINOR J.D.,

Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

————

BRIEF OF AMICUS CURIAE

LEGAL CENTER FOR DEFENSE OF LIFE

IN SUPPORT OF PETITIONERS

————

ANDREW L. SCHLAFLY

939 Old Chester Rd.

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Legal Center for Defense

of Life

November 30, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTION PRESENTED

Whether, pursuant to United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), this Court should vacate the

court of appeals’ judgment and instruct that court to

remand the case to the district court with directions to

dismiss all claims for prospective relief regarding

pregnant unaccompanied minors.

iii

TABLE OF CONTENTS

Pages

Question Presented................................................i

Table of Contents ................................................ iii

Table of Authorities .............................................. v

Interest of Amicus Curiae .................................... 1

Summary of Argument ......................................... 2

Argument .............................................................. 3

I.

THE DECISION BELOW ERRONEOUSLY

DECIDED IMPORTANT FEDERAL QUESTIONS

IN CONFLICT WITH RELEVANT DECISIONS

OF THIS COURT ............................................ 3

A. The Decision Below Erred in

Compelling Complicity by the Federal

Government in Procuring an Abortion...... 4

B. The Decision Below Erred in

Assuming an Illegal Alien Has

a Right to an Abortion ............................... 5

II.

THE HURRIED, MIDDLE-OF-THE-NIGHT

ABORTION INCREASED MEDICAL RISK,

UNDERMINED INFORMED CONSENT, AND

IS A BLIGHT ON THE ORDERLY

ADMINISTRATION OF JUSTICE ...................... 7

A. Risk of Medical Harm Was Increased

by the Middle-of-the-Night Abortion ........ 8

B. The Right to Revoke Consent Is

Deprived by a Time-Pressured,

Middle-of-the-Night Abortion ................. 10

iv

C. The Abortion Violated the Orderly

Administration of Justice ........................ 11

Conclusion ........................................................... 14

v

TABLE OF AUTHORITIES

Pages

Cases

Bus. Guides, Inc. v. Chromatic Communs.

Enters., 498 U.S. 533 (1991) ........................... 12

Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .... 6

Doe v. Bolton, 410 U.S. 179 (1973) ........... 6, 12, 13

Ford v. Wainwright, 477 U.S. 399 (1986) .......... 10

Haley v. Ohio, 332 U.S. 596 (1948) .................... 11

Harris v. McRae, 448 U.S. 297 (1980) .................. 4

McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004),

cert. denied, 543 U.S. 1154 (2005) .................. 13

Panetti v. Quarterman, 551 U.S. 930 (2007) ..... 10

Planned Parenthood v. Casey,

505 U.S. 833 (1992) ........................................... 4

Plyler v. Doe, 457 U.S. 202 (1982) ........................ 7

Polk Cty. v. Dodson, 454 U.S. 312 (1981)........... 13

Prinz v. Greate Bay Casino Corp.,

705 F.2d 692 (3d Cir. 1983) .............................. 5

Roe v. Wade, 410 U.S. 113 (1973) ............. 6, 12, 13

Taylor v. Maddox, 366 F.3d 992 (9th Cir.),

cert. denied, 543 U.S. 1038 (2004) ................ 10

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .......................................... i, 2

vi

Other Authorities

Hearing Before the Subcomm. on the

Constitution, Civil Rights, and Property

Rights, of the S. Judiciary Comm.,

109th Cong. (2005) (statement of

Sandra Cano) ............................................ 12-13

“Night Surgeries Linked to Risks,” Business

Daily (Oct. 17, 2017)

https://www.msn.com/en-za/news/other/

night-surgeries-linked-to-risks/ar-AAtFk2q . 8

Michael Nurok, M.D., Ph.D., Charles A.

Czeisler, Ph.D., M.D., and Lisa Soleymani

Lehmann, M.D., Ph.D., “Sleep Deprivation,

Elective Surgical Procedures, and Informed

Consent,” N. Engl. J. Med. 2010;

363:2577-2579 (Dec. 30, 2010)

http://www.nejm.org/doi/full/10.1056/

NEJMp1007901 ............................................... 9

Noya Rimalt, “When Rights Don’t Talk: Abortion

Law and the Politics of Compromise,”

28 Yale J.L. & Feminism 327 (2017) .............. 6

Linda L. Schlueter, “40th Anniversary of Roe v.

Wade: Reflections Past, Present and

Future,” 40 Ohio N.U.L. Rev. 105 (2013) ..... 13

Johanna Zacarias, Note: “Suffering in Silence:

The Urgent Need to Address El Salvador’s

Lack of Reproductive Rights,” 47 Geo.

Wash. Int’l L. Rev. 233 (2015)......................... 6

No. 17-654

IN THE

Supreme Court of the United States

ERIC D. HARGAN, ACTING SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.,

v.

Petitioners,

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO

UNACCOMPANIED MINOR J.D.,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the D.C. Circuit

INTEREST OF AMICUS CURIAE1

Founded in 1989, amicus curiae Legal Center for

Defense of Life (“Legal Center”) is a nonprofit New

Jersey

corporation

dedicated

to

defending

constitutional rights of those who advocate on behalf

of unborn children, and the interests of the unborn

themselves. The Legal Center includes a network of

1 Amicus files this brief after providing the requisite ten days’

prior written notice and receiving written consent by all the

parties. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief in whole, no counsel for a party authored this

brief in whole or in part, and no person or entity – other than

amicus, its members, and its counsel – contributed monetarily to

the preparation or submission of this brief.

2

attorneys who together have volunteered thousands of

hours of pro bono services in defense of pro-life

advocates.

The Legal Center has a direct and vital interest in

opposing the creation of a new constitutional right to

abortion by illegal aliens, and in defending the orderly

administration of justice when this issue is in dispute,

as in this case.

SUMMARY OF ARGUMENT

Illegal aliens do not have a constitutional right to

enter the United States to have an abortion, or to

obtain an abortion while remaining here illegally.

Moreover, no one has a right to compel the federal

government to be complicit in the procurement of an

abortion. The terse en banc judgment below is in error

on both fundamental principles of law. The Petition

should be granted to vacate the judgment or correct

these significant errors of national importance.

At a minimum, as argued by the United States

here, the decision below should be vacated as moot.

(Pet. 20-24, relying on United States v. Munsingwear,

Inc., 340 U.S. 36, 39 (1950), and similar authorities).

In addition, this Court should recognize that the

decision below was a radical departure from the

decisions of this Court, which is an independent basis

for granting certiorari. Neither the Constitution nor

even judge-made law supports what the D.C. Circuit

en banc implicitly held below in compelling the federal

government to be complicit in an abortion by an illegal

alien in Texas. If not vacated or reversed, it is likely

there will be attempts to use the decision below as an

improper precedent nationwide. The supervisory role

3

of this Court requires reversal of these substantial

errors before they propagate further.

In addition, this Court should disapprove with

discipline the legal tactics used below in obtaining an

abortion in the middle of the night – scheduled at 4:15

a.m. (Pet. 11) – timed to thwart orderly review by this

Court. That conduct increased the medical risks to the

17-year-old girl J.D., and infringed on her right to fully

informed consent. Such legally motivated tactics are

below the standards of this Court and the legal

profession, and should be chastised accordingly.

The Solicitor General’s Petition for a Writ of

Certiorari should be granted because the decision

below cannot stand, and the legal tactics used to

disrupt the orderly administration of justice should

not go unpunished.

ARGUMENT

I.

THE DECISION BELOW ERRONEOUSLY

DECIDED IMPORTANT FEDERAL QUESTIONS

IN CONFLICT WITH RELEVANT DECISIONS OF

THIS COURT.

This Court has been clear that the federal

government can prefer childbirth over abortion, and

thus there is no constitutional right for anyone to

compel complicity by the federal government in

obtaining an abortion. In the case of seeking an

abortion for an illegal alien held in federal custody,

such complicity is inherently sought by the attempt

itself. The decision below squarely conflicts with the

fundamental principle of abortion jurisprudence that

4

the federal government can side completely with

childbirth rather than abortion.

Moreover, illegal aliens do not have a right to have

an abortion in the United States. Yet the decision

below implicitly and improperly invented such a new

right where none exists.

A. The Decision Below Erred in Compelling

Complicity by the Federal Government in

Procuring an Abortion.

“[A] State is permitted to enact persuasive

measures which favor childbirth over abortion, even if

those measures do not further a health interest.”

Planned Parenthood v. Casey, 505 U.S. 833, 886

(1992). This concept is central to the longstanding

precedent that the federal government may fund the

costs of childbirth while refusing to fund expenses

relating to abortion. See Harris v. McRae, 448 U.S.

297, 325 (1980) (“Congress has [properly] established

incentives that make childbirth a more attractive

alternative than abortion.”).

Despite this, a concurring opinion below stated

that:

What is forcing J.D. to carry on this pregnancy is

not J.D.’s choice. It is not Texas law. It is the

federal government’s refusal to allow an abortion to

go forward. The government’s refusal to release

J.D. from custody is not just a substantial obstacle;

it is a full-on, unqualified denial of and flat

prohibition on J.D.’s right to make her own

reproductive choice.

(Pet. App. 8a, Millett, J., concurring).

In fact no one, and certainly not the federal

government, has been depriving J.D. of her full ability

5

to end her illegal presence in this country by simply

returning home. J.D. entered here illegally against

the will of the United States government and contrary

to applicable law. She has been able to leave this

country at any time. It would be as though someone

had entered a religious hospital that declines to

perform abortions and then refuses to leave until she

obtains one at that hospital. The Constitution does not

compel a religious hospital – or the United States

government – to be complicit in a sought-for abortion.

B. The Decision Below Erred in Assuming an

Illegal Alien Has a Right to an Abortion.

The United States is not a sanctuary for all

foreigners who want an elective abortion, particularly

when the laws of their home country prohibit it, as in

this case. Yet that is the basis of the ruling below, in

assuming that a foreigner who was eight weeks

pregnant when she illegally entered the United States

somehow has a constitutional right to obtain abortion

here. J.D. is a trespasser on American soil, and has no

legitimate right to demand an abortion here.

An illegal alien has a status no greater than that of

a trespasser at common law, who may be properly

detained and restricted in movement, especially if the

trespasser is unwilling to leave. A landowner who

restricts the movement of a defiant trespasser is not

liable for false imprisonment. See, e.g., Prinz v. Greate

Bay Casino Corp., 705 F.2d 692, 694 (3d Cir. 1983) (“If

he could not lawfully remain there was probable cause

for his detention as a defiant trespasser, which in New

Jersey is a defense to a charge of false

imprisonment.”).

Most other countries of the world properly have

laws against abortion, in contrast with the framework

6

of unlimited abortion in the United States as

established in Roe v. Wade, 410 U.S. 113 (1973), and

Doe v. Bolton, 410 U.S. 179 (1973). Elective abortion

is illegal in the country from which J.D. came. (Pet.

37a) Indeed, elective abortion is properly illegal in

much of Central and South America. See, e.g.,

Johanna Zacarias, Note: “Suffering in Silence: The

Urgent Need to Address El Salvador’s Lack of

Reproductive Rights,” 47 Geo. Wash. Int'l L. Rev. 233,

239 (2015) (“After April 20, 1998, all abortions including those which were previously allowed - were

criminalized and [t]he abortion provisions were placed

in a new section of the Penal Code that details offenses

against the ‘human life in formation.’”).

Middle Eastern countries likewise have laws

against abortion that are stricter than in the United

States. In Israel, for example, abortion is allowed only

if there is an application to and approval by a

Pregnancy Termination Committee, and “as of 1993,

legal access to abortion had been narrowed through

stricter limitations on the discretion of” those

committees to approve abortion. Noya Rimalt, “When

Rights Don’t Talk: Abortion Law and the Politics of

Compromise,” 28 Yale J.L. & Feminism 327, 355

(2017). Respect for abortion laws in other nations

should benefit from the same level of international

comity that other legal issues receive, such as the

matter of personal jurisdiction. See Daimler AG v.

Bauman, 134 S. Ct. 746, 763 (2014) (reversing the

Ninth Circuit for having “paid little heed to the risks

to international comity its expansive view of general

jurisdiction posed”).

7

In Plyler v. Doe, a 5-4 Supreme Court ruled that

children of illegal aliens have a constitutional right to

attend public schools free of cost, and that this right

cannot be denied by States. But J.D. is an illegal alien

herself, and the rationale in Plyler does not apply to

the issue of whether an illegal alien herself has a right

to an abortion:

Persuasive arguments support the view that a

State may withhold its beneficience from those

whose very presence within the United States

is the product of their own unlawful conduct.

These arguments do not apply with the same force

to classifications imposing disabilities on the minor

children of such illegal entrants. At the least, those

who elect to enter our territory by stealth and in

violation of our law should be prepared to bear the

consequences, including, but not limited to,

deportation.

Plyler v. Doe, 457 U.S. 202, 219-20 (1982) (emphasis in

original). Here illegally herself, J.D. has no right to a

free public education under the Plyler decision, and

she has no constitutional right to an abortion in Texas.

II.

THE HURRIED, MIDDLE-OF-THE-NIGHT

ABORTION INCREASED MEDICAL RISK,

UNDERMINED INFORMED CONSENT, AND IS

A

BLIGHT

ON

THE

ORDERLY

ADMINISTRATION OF JUSTICE.

The hurried, middle-of-the-night2 abortion put a

17-year-old girl at heightened medical risk, and

2 The abortion was scheduled for 4:15 a.m.

(Pet. 11)

8

deprived her of fully informed consent for the lifechanging procedure.

Even many who support

legalized abortion would agree that the circumstances

and timing of the abortion below are not a proper way

to terminate a pregnancy or resolve an ongoing legal

dispute about one. What transpired in this case is a

blight on the orderly administration of justice, and

might be characterized by a future observer as

uncivilized.

Had a State hurriedly executed a prisoner in the

middle of the night to avert review by this Court, there

is little doubt that this Court would harshly and

unanimously condemn it. Such chicanery is even less

appropriate in the context of an abortion, where fully

informed consent by the patient, without any time

pressures, is essential.

A. Risk of Medical Harm Was Increased by

the Middle-of-the-Night Abortion.

Elective surgery is more dangerous when

conducted in the middle of the night, for obvious

reasons. Surgeons are more likely to be fatigued, and

less support staff is typically available both to assist in

the procedure and to address complications. The

patient herself may be more fatigued. Whatever the

causes, night surgery is widely known to carry an

increased risk of medical harm to the patient. See, e.g.,

“Night Surgeries Linked to Risks,” Business Daily

(Oct. 17, 2017) (study of 15,000 surgeries showed a

massive 50% increase in complications when done

between the hours of 9pm and 7am).3

https://www.msn.com/en-za/news/other/night-surgeries-linkedto-risks/ar-AAtFk2q (viewed 11/26/17).

3

9

Research shows that sleep deprivation is as

harmful to clinical performance as alcohol intoxication

is, and experts advise against performing elective

surgery under such circumstances:

Sleep deprivation adversely affects clinical

performance

and

impairs

psychomotor

performance as severely as alcohol intoxication.

Michael Nurok, M.D., Ph.D., Charles A. Czeisler,

Ph.D., M.D., and Lisa Soleymani Lehmann, M.D.,

Ph.D., “Sleep Deprivation, Elective Surgical

Procedures, and Informed Consent,” N. Engl. J. Med.

2010; 363:2577-2579 (Dec. 30, 2010).4

The rushed, middle-of-the-night abortion on J.D.

put her at unjustified medical risk. It may not be

known for years if her cervix was damaged by the

procedure, thereby causing her problems with future

pregnancies. Complications from abortion include

both immediate harm and long-term effects. In

addition she may be scarred psychologically by the

inherently frightening timing of the procedure.

Patients to be seen the following day by the same

practitioners were also jeopardized, given that the

sleep deprivation is as deleterious as intoxication.

For legal advantage, a foreign 17-year-old girl was

subjected to increased risk to her health, in order to

establish an ideologically motivated precedent.

Regardless of whether J.D. or ensuing patients

suffered actual harm, an attempt at legal advantage

does not justify inflicting greater medical risk on a

minor.

http://www.nejm.org/doi/full/10.1056/NEJMp1007901 (viewed

11/23/17).

4

10

B. The Right to Revoke Consent Is Deprived

by a Time-Pressured, Middle-of-the-Night

Abortion.

A woman’s right to revoke consent remains

essential until the abortion begins, and she has a right

to have full clarity of thought until that life-changing

moment. Even in the context of capital punishment,

where no consent is required, this Court has

prohibited executions where there are doubts about

the lack of clarity of mind. See, e.g., Panetti v.

Quarterman, 551 U.S. 930, 934 (2007) (overturning

capital punishment where doubts were raised about

the mental clarity of the subject, observing that “‘the

Eighth Amendment prohibits a State from carrying

out a sentence of death upon a prisoner who is insane.’

The prohibition applies despite a prisoner’s earlier

competency to be held responsible for committing a

crime and to be tried for it.”) (quoting Ford v.

Wainwright, 477 U.S. 399, 409-410 (1986)).

Had J.D. confessed to a crime under circumstances

similar to how the abortion was performed, her

confession would likely be deemed non-consensual and

inadmissible. The Ninth Circuit held as follows:

Commencing the interrogation of a teenager after

midnight, and pressing it past 3:00 a.m., absent

some showing that delay would risk the destruction

of evidence or other such harm, creates far too great

a risk that a false confession will be extracted,

leading to the unjust conviction of an innocent

person.

Taylor v. Maddox, 366 F.3d 992, 1013 (9th Cir.), cert.

denied, 543 U.S. 1038 (2004).

11

J.D. was merely 17 years old while in a land foreign

to her, and one can only wonder what she was told to

explain why the abortion was being done in the middle

of the night. This Court held the following about an

interrogation of a 15-year-old boy in “the dead of

night”:

Age 15 is a tender and difficult age for a boy of any

race. He cannot be judged by the more exacting

standards of maturity. That which would leave a

man cold and unimpressed can overawe and

overwhelm a lad in his early teens. This is the

period of great instability which the crisis of

adolescence

produces.

A 15-year-old

lad,

questioned through the dead of night by relays of

police, is a ready victim of the inquisition.

Haley v. Ohio, 332 U.S. 596, 599 (1948).

It is plausible, even likely, that J.D. did not feel she

had much of a choice to decline the middle-of-the-night

abortion, or to request more time to reconsider

whether to have it. She was probably told it was

necessary to have it done immediately, and she may

have felt she did not have a right to change her mind.

That is not true consent, and that is inconsistent with

the applicable Texas law requiring informed consent

after counseling. See Pet. 69a, ¶ 6 (referencing

application of Texas’s “state-mandated counseling”

requirement).

C. The Abortion Violated

Administration of Justice.

the

Orderly

Zealous representation should end where

unnecessary risks to health and safety begin,

particularly for a minor such as J.D. Moreover, the

orderly administration of justice depends on respect by

12

officers of the court – its licensed attorneys – for legal

procedure. Deference to the orderly procedure of this

Court was lacking in the rushed abortion below.

Were this a case of capital punishment rather than

an abortion dispute, there is little doubt that this

Court would discipline any attorney who arranged for

a surprise execution by a State in order to deny this

Court full review of the issue. The integrity of legal

process suffers if such conduct goes unaddressed.

Indeed, it is difficult to see why such conduct would not

be repeated in future cases, if there is no sanction of it

here.

“An attorney acts not only as a client’s

representative, but also as an officer of the court, and

has a duty to serve both masters.” Bus. Guides, Inc. v.

Chromatic Communs. Enters., 498 U.S. 533, 564

(1991). The conduct in procuring the middle-of-thenight abortion, as recounted by Petitioner (Pet. 10-17),

does not comport with the obligations of an attorney to

serve as an officer of the Court.

In both Roe v. Wade and Doe v. Bolton, the plaintiffs

opposed or regretted positions that their attorneys

took. In Doe, the plaintiff Sandra Cano later testified

before the United States Senate Committee on the

Judiciary that she never even sought an abortion:

I only sought legal assistance to get a divorce from

my husband and to get my children from foster

care. I was very vulnerable: poor and pregnant with

my fourth child, but abortion never crossed my

mind. Although it apparently was utmost in the

mind of the attorney from whom I sought help. At

one point during the legal proceedings, it was

necessary for me to flee to Oklahoma to avoid

13

the pressure being applied to have the

abortion scheduled for me by this same

attorney. Please understand even though I have

lived what many would consider an unstable life

and overcome many devastating circumstances, at

NO TIME did I ever have an abortion. I did not seek

an abortion nor do I believe in abortion.

Linda L. Schlueter, “40th Anniversary of Roe v. Wade:

Reflections Past, Present and Future,” 40 Ohio N.U.L.

Rev. 105, 122-123 (2013) (quoting the Hearing Before

the Subcomm. on the Constitution, Civil Rights, and

Property Rights, of the S. Judiciary Comm., 109th

Cong. (2005), statement of Sandra Cano, emphasis

added).

As to the “Roe” in Roe v. Wade, the plaintiff Norma

McCorvey later brought a lawsuit in an attempt to

reverse the outcome that had supposedly been in her

favor. While this Court declined to review her appeal,

Judge Edith Jones on the Fifth Circuit remarked on

how “the Court will never be able to examine its

factual assumptions on a record made in court.”

McCorvey v. Hill, 385 F.3d 846, 852 (5th Cir. 2004)

(Jones, J., concurring), cert. denied, 543 U.S. 1154

(2005). “Thus, the ‘facts’ that gave rise to the cases of

Roe v. Wade and Doe v. Bolton were based on lies and

deception.” Schlueter, supra at 123.

There

are

necessary

limits

to

zealous

representation. “The obligations owed by the attorney

to the client are defined by the professional codes, not

by the … entity from which … compensation is

derived.” Polk Cty. v. Dodson, 454 U.S. 312, 327

(1981).

Subjecting a 17-year-old foreign girl to

heightened medical risk, and depriving her of her full

right to revoke consent, in a rushed elective medical

14

operation timed to deprive this Court of jurisdiction,

transgresses those limits. Such conduct interfered

with the orderly administration of justice in a shocking

manner, and should be addressed accordingly by this

Court.

CONCLUSION

For the foregoing reasons and those stated in the

Petition for a Writ of Certiorari, it should be granted.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER RD.

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Legal Center for Defense of

Life

Dated: November 30, 2017