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IMMIGRATION JULY 22, 2022 | The Indian Eye 42
Impact of the Overturning of
ROE v. WADE on Immigrants
BY CYRUS D. MEHTA, KAITLYN cannot fall into the category of the forced sexual and repro- would suffer undue hardship due need access to an abortion. The
BOX*, AND JESSICA PASZKO** activities protected by the Due ductive servitude of black girls to circumstances outside their decision will undoubtedly cause
n June 24, 2022, the Process Clause. The opinion and women who were forcibly control if they were denied access the most harm to the women
also addresses whether the right
who have the least financial re-
to an education. According to
brought into the country was
Supreme Court issued
Oits opinion in Dobbs to obtain an abortion “part of a a critical part of the passage Justice Burger’s dissenting opin- sources available for reproduc-
broader entrenched right that is
tive care. According to some
ion, once the Court established
of the 13th and 14th Amend-
v. Jackson Women’s Health supported by other precedents”. ments, which sought to protect that undocumented children are sources, immigrant women
Organization, overturning the The Court concludes that over- them from forced pregnancies not a suspect class and that edu- who seek abortions are often
landmark decision Roe v. Wade, turning Roe would not upset and provide them privacy and cation is not a fundamental right, lower-income and less likely to
and holding that there is no con- other precedential decisions freedom. The opinion in Dobbs the Court’s analysis should have have medical insurance than
stitutional right to an abortion. that involve fundamental rights will likely not be the last word as considered whether the legisla- U.S. citizens who seek the same
Justice Alito, writing for the ma- not specifically mentioned in present and future generations tive classification bore a rational care. While no states currently
jority, first held that abortion is the Constitution, like Griswold of activists will seek to continue relationship to a legitimate state have abortion laws in place that
not implicitly protected by any v. Connecticut (contraception), to restore women’s rights to pri- purpose. Under this rational-ba- attempt to prosecute residents
constitutional provision, includ- Obergefell v. Hodges (same-sex vacy and bodily autonomy. sis level of scrutiny, Justice Burg- who travel to another state to
ing the Due Process Clause. The marriage), and Lawrence v. Texas Until then, the Dobbs de- er opined that it would not be seek an abortion, a now-blocked
opinion further states that al- (same-sex sexual conduct), be- cision will have a devastating irrational for a state to conclude Missouri law would have allowed
though the Due Process Clause cause abortion involves a unique impact on the countless women that it owes a lesser responsibili- individuals to sue anyone who
protects some rights that are moral question not implicated in in the United States who will no ty to undocumented individuals. assisted a woman in crossing
not specifically enumerated in other cases – the destruction of longer have access to safe and He further reasoned that be- state lines to seek an abortion. If
the Constitution, those rights “potential life”. Finally, the Court legal abortions, and the demise cause unlawfully present individ- similar state laws follow, a crim-
must be “deeply rooted in this held that the doctrine of stare de- of Roe also carries worrying im- uals have no right to be here, the inal conviction of this type could
Nation’s history and tradition” cisis does not require the preserva- plications for other precedential state may reasonably, and con- render non-citizens inadmissible
and “implicit in the concept of tion of Roe because this doctrine Supreme Court decisions, in- stitutionally, elect not to provide to the United States and conse-
ordered liberty.” Because abor- is not an “inexorable command” cluding those that concern the them with governmental services quently ineligible for a host of
tion was not a recognized legal and other landmark Supreme rights of immigrants. Though at the expenses of those who are immigration benefits, including
right until the latter half of the Court cases have overturned the majority asserted that over- lawfully in the state. In the final visas and permanent residence,
20th century, according to the prior precedential decisions. turning Roe would not under- part of his dissent, Justice Burger as well as leaving individuals
majority, and was until then of- On the other hand, accord- mine other decisions involving remarked at how the majority’s vulnerable to being placed in re-
ten punishable as a criminal of- ing to one commentator, ending fundamental rights due to the opinion effectively set social pol- moval proceedings.
fense, the court reasons that it unique moral question icy and impermissibly usurped Even where traveling across
posed by the right to abor- Congress’ policymaking role. state lines to obtain an abortion
tion, Justice Thomas in his The idea that Plyler could does not carry the possibility of
concurring opinion recom- be the next landmark decision criminal convictions, this option
mended that “in future cas- that is threatened is not pure- will not be available to incarcer-
es, we should reconsider all ly speculative. Governor Greg ated women, including those in
of this Court’s substantive Abbott of Texas has already in- immigration detention facilities.
due process precedents, dicated that he would like to see Of the thirteen states that have
including Griswold, Law- Plyler to be revisited in the after- “trigger laws” in place that im-
rence, and Obergefell. math of Roe’s demise. On the mediately banned or restricted
Plyler v. Doe, which other hand, Abbott’s attempts abortion upon the overturning
held that children of un- to get Plyler overruled will not of Roe, seven, including Ida-
documented immigrants be a slam dunk even under the ho, Oklahoma, South Dakota,
have the right to receive Supreme Court’s current com- Wyoming, Kentucky, Arkansas
a K-12 education in the position since providing undocu- and Mississippi, have some of
United States, escaped mented children access to public the country’s highest rates of in-
Justice Thomas’ mention, education was not based on sub- carcerated women. Reports of
but has much in common stantive due process but equal women in immigration detention
with decisions like Roe protection. facilities being denied access to
and Obergefell. The Court In addition to leaving open abortions, or receiving delayed
in Plyler stopped short of the possibility for other funda- or insufficient reproductive care,
calling education a “funda- mental rights cases to be over- were already rampant. After the
mental right”, focusing in- turned, the Court’s decision in Court’s decision in Dobbs, it is
stead on the Equal Protec- Dobbs will also have a dispro- likely that women with the least
tion Clause argument that portionately severe impact on freedom to seek reproductive
undocumented children certain immigrant women who care will suffer even more.
m of ___________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D.
Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s
EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental
Disciplinary Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
tion; board member of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta
is the former chair of the Board of Trustees of the American Immigration Council and former chair of the Committee on
Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on various
immigration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he
teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award
for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding
efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Com-
mendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
2 6th Floor Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in
immigration law, among other rankings.
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