In America, xenophobic hardliners are leveraging courts to separate more families at the border and take away women’s right to safe, legal abortion and birth control.
This week, as hundreds of asylum-seekers were being shuffled between chain-link pens underneath an overpass and parking lots in El Paso, Trump threatened to close the entire U.S.-Mexico border if numbers of asylum seekers don’t decrease—and his recent gutting of the Department of Homeland Security warns that he won’t stop till he gets his way. This is only the latest in an all-out assault on immigrants and immigrants’ rights that has been brewing for the last several years as comprehensive immigration reform has languished in Congress. The changes to immigration policy under Trump, however, have been staggering in both volume and cruelty, touching almost every aspect of immigration law in a broad attempt to decrease the number of both undocumented and documented immigrants entering the U.S.
Trump’s all-out assault on our immigration system seems to be not so much a symptom of his own views, but the result of his close collaboration with a number of immigration hardliners who have been quietly working for decades to change immigration policies, using many of the same tactics that anti-abortion crusaders used to slowly chip away at abortion access. And as recent events show, access to abortion hangs on a precipice, very possibly on the verge of collapse after decades of targeted litigation. Looking at the path anti-abortion activists took to attempt to tear down Roe v. Wade gives us an idea of what we can expect to happen as more immigrants’ rights cases end up in court.
One of the stories Trump most likes to reference when discussing immigration is the death of Kate Steinle, a case that ignited the anti-immigrant lobby and provides an example of how anti-immigrant cases may play out in court.
On July 15, 2015, Steinle was walking down a San Francisco pier with her father when a ricocheting bullet hit her in the back and killed her. Jose Ines Garcia Zarate, a homeless, undocumented immigrant, was charged with the death. As soon as news leaked that Garcia Zarate was undocumented, anti-immigration advocates rallied around the case, holding it up as an example of what can happen when cities like San Francisco are permitted to implement sanctuary city policies that limit local law enforcement’s corporation with federal immigration enforcement operations.
Garcia Zarate was acquitted of all charges except for the charge of being a felon in possession of a firearm. But the acquittal seemed to only further incite those who saw the accident as a symptom of a perceived increase in undocumented migrants in the United States. Anti-immigration advocates argued that San Francisco’s sanctuary city policies—which kept city officials from reporting Garcia Zarate to ICE after he was released from jail on a minor charge earlier in the year—were to blame for Steinle’s death.
In a move seemingly designed to catapult the case to the forefront of the immigration debate, attorneys for Steinle’s family filed a wrongful death lawsuit against Garcia Zarate and San Francisco, alleging that the city’s sanctuary city policy directly lead to Steinle’s death and asking for monetary damages from the city. The District Court and the 9th Circuit Court of Appeals both dismissed the case, finding that the city was entitled to create its sanctuary policy memo and that the city was not required to share Garcia Zarate’s jail release date with the federal government.
Despite the apparent failure of the case to change sanctuary city policies, it has remained a cultural touchstone of the current anti-immigrant sentiment adopted by conservatives, who seem hellbent on dismantling the already meager protections we grant noncitizens in the United States. This is not surprising when we look at how anti-abortion activists have used litigation to slowly shred abortion rights.
Roe v. Wade offered historic protection of a woman’s right to choose whether or not to have an abortion. In Roe, the Supreme Court found that abortions during the first trimester of pregnancy are protected by our constitutional rights to privacy, and must be left entirely to the pregnant person, but that the state may have a “compelling interest” in the pregnancy from approximately the end of the first trimester until a fetus is viable. This meant that states could enact legislation regarding the “preservation and protection of maternal health” during that period. The court found that once the fetus was viable, the state could enact abortion restrictions, including outlawing abortion, so long as there were adequate safeguards in place to preserve the life and health of the pregnant person. Looking at how anti-abortion litigation has played out since the seminal case gives us a clue as to what we can expect from the battle against immigrants’ rights.
To see the similarities between anti-abortion and anti-immigration battles in the court, it is necessary to look at the long game conservatives have been playing in courts across the country since Roe v. Wade, most of which hinge on state-level abortion restrictions that are then challenged in court and subsequently make their way through an appellate process that supporters hope will end in a new precedential decision that takes Roe off the books forever.
One such case, Casey v. Planned Parenthood, reaffirmed the essential underpinnings of Roe but tweaked the framework for determining if restrictions on abortion were legal, and in reality, allowed for new restrictions on abortion. The Court in Casey found that our constitutional right to privacy protects decisions about abortion and that states can’t ban abortions pre-viability. The court, however, rejected the trimester analysis they’d used in Roe — instead of drawing lines at trimesters, Casey drew the lines along the “more workable” concept of viability. Under Casey, states can not place an “undue burden” on women seeking an abortion before fetus viability. After viability, states can regulate and prohibit abortion except in cases where it is necessary to protect the life or health of the pregnant person. Under this new analysis, the Pennsylvania abortion restrictions that were in question in Casey were mostly upheld. So while Casey affirmed the idea of Roe, it actually paved the way for more restrictive abortion laws.
Since Roe and Casey, anti-abortion groups have been intent on keeping the issue in court, hoping to continue to narrow just what counts as an “undue burden,” or — even better — to overturn Roe entirely to pave the way to ban most abortions both pre- and post-viability.
The relentless litigation of abortion is a multi-decade chess game that we may soon lose. Last year, the Guttmacher Institute found that since Roe, states have passed 1,193 legislative restrictions on abortion. This year, there are at least 20 abortion-related cases that could end up in front of the Supreme Court, any one of which has the potential to destabilize our already tenuous right to obtain an abortion. And that is just what conservatives want.
Now, the same tactic is being applied to the nativist push for harsher immigration policies. A constant litany of states and municipalities, inspired by anti-immigrant hardliners, is following the playbook laid out by the fight against abortion access to push courts to delineate precisely how far they can go when it comes to implementing anti-immigrant policies.
In the case of Kate Steinle, for example, a successful wrongful death lawsuit against San Francisco may have all but forced the city to abandon its sanctuary policies at risk of being financially liable for injuries ostensibly caused by undocumented people. It also would have sent a more significant, and much more dehumanizing, message that undocumented people are something that must be regulated and controlled to keep citizens safe.
In addition to the Steinle litigation, states and municipalities are experimenting with their own local anti-immigrant policies (frequently under the direction of Kris Kobach, the former Kansas secretary of state and lawyer-cum-traveling salesman who peddles anti-immigration legislation as a salve for economic and safety problems in struggling areas). Much of this legislation seems designed to test, and ultimately curtail, the idea that immigration laws are generally only enforceable by the federal government, not state and local agencies.
In one of the most famous cases, Arizona’s SB 1070, an anti-immigrant bill that would have made it illegal to transport undocumented people or solicit day laborers, was largely gutted by the courts. But one crucial aspect was upheld, the “show me your papers provision,” which requires local police officers to attempt to ascertain someone’s immigration status if there is a “reasonable suspicion” the person in question is undocumented. Throughout the country, in places like Valley Park, Missouri, Farmer’s Branch, Texas, and Fremont, Nebraska, anti-immigrant groups supported restrictive local anti-immigrant policies, which inevitably wound up in court.
Most of these local restrictive ordinances have been gutted in federal courts, but as we can see from the history of anti-choice legislation and litigation, these types of advocacy court cases may be a matter of quantity over quality. The point is the continual march to the courts, where anti-immigrant groups like the Federation for American Immigration Reform and the Center For Immigration Studies hope that eventually when presented with the right circumstances, judges will loosen restrictions on anti-immigrant legislation, just as they did with limits on abortion care.
And the fight to weaken constitutional protections for immigrants might not take as long as the battle to dismantle abortion access—as of March 29, Trump has confirmed 92 new federal judges, pushing the courts to the right in the process. Now, it is merely a matter of anti-immigrant supporters continuing to follow the anti-choice litigation playbook. The more cases that make their way through the courts, the more bits and pieces of anti-immigrant legislation that may be upheld until anti-immigrant groups get what they wanted in the first place: the dismantling of most constitutional protections for non-citizens entirely.
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