Border checkpoints and substantive due process: abortion rights in the border zone.

• Author: Huddleston, Kate
• Position: Introduction through II. H.B. 2 as Undue Burden, p. 1744-1775

NOTE CONTENTS INTRODUCTION I. THE BORDER ZONE AND H.B. 2 A. Border Checkpoints: Spatially Selective Immigration Enforcement B. Reproductive Rights and Spatiality: H.B. 2 II. H.B. 2 AS UNDUE BURDEN A. Casey's Undue Burden Analysis B. Immigration Enforcement as Obstacle III. H.B. 2 AND BORDER CHECKPOINTS AS UNCONSTITUTIONAL CONDITION A. The Right B. The Benefit C. Conditioning D. Intentionality IV. CAUSATION AT CHECKPOINTS A. Doctrinal Causation B. Individual Rights: Federalism's Failure? CONCLUSION INTRODUCTION

United States Border Patrol checkpoints lace the interior of Texas and other southern border states, typically lying twenty-five to seventy-five miles from the border with Mexico. (1) Federal law permits immigration officers "to board and search for aliens ... any railway car, aircraft, conveyance, or vehicle" located "within a reasonable distance from any external boundary of the United States." (2) At the checkpoints, agents may, pursuant to the Supreme Court's holding in United States v. Martinez-Fuerte, "brief[ly] det[ain] ... travelers" and "require[] of the vehicle's occupants ... a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States." (3) For those within the "border zone"--the area of land between federal interior immigration checkpoints and the international border--travel to the rest of the country functionally requires an encounter with federal immigration enforcement. (4) As a result, unauthorized immigrants living within the border zone avoid such travel and find their world effectively circumscribed by the checkpoints. (5) State laws and regulations with spatially disparate effects, such as recently enacted Texas legislation that compels widespread closure of abortion clinics, therefore have particular significance for undocumented immigrants in the border zone. (6)

In 2013, the State of Texas enacted Texas House Bill 2 (H.B. 2), which regulates abortion providers and could result in the closure of all abortion clinics south and west of internal immigration checkpoints in the state. (7) H.B. 2 requires that all abortion clinics in Texas meet the facility requirements for ambulatory surgical centers and that all doctors performing abortions have hospital admitting privileges within thirty miles of their clinics. (8) The legislation has led to the closure of many clinics in the state (9) and has engendered both controversy and litigation. An as-applied challenge, focusing on the extent to which courts ought to probe legislatures' health-premised justifications for narrowing abortion availability, has reached the Supreme Court. (10) The abortion providers in Texas's border area are among those unable to meet H.B. 2's requirements: both the Whole Woman's Health Clinic in McAllen, a city in Texas's southern Rio Grande Valley, and the two clinics in El Paso, the metropolitan area at Texas's westernmost tip, have not been able to do so. (11)

Because of H.B. 2, undocumented immigrants living in southern and western Texas face the potential closures of the only three abortion clinics in the state that do not require travel through internal immigration checkpoints from the border area. Roughly 822,500 women live in the Rio Grande Valley and the nearby city of Laredo, within the border zone in the southern part of the state. (12) Roughly fifty thousand have neither citizenship nor legal immigration status and are of reproductive age. (13) Were the McAllen clinic to close, the border checkpoints would physically stand between these women and obtaining an abortion under medical care. The undocumented women in the area would not be able to obtain an abortion under medical care unless they were to risk deportation by traveling through the checkpoints, risk death by attempting to circumvent them, or successfully obtain lawful presence in the country before the point at which abortion becomes illegal. (14) In west Texas, roughly four hundred twenty-five thousand women live in the largest metropolitan area, in El Paso County. (15) Closure of the El Paso clinics would mean that the approximately twenty-four thousand undocumented women of reproductive age living in that area would also need to cross a border checkpoint in order to obtain an abortion in Texas. (16) However, these individuals can currently reach a clinic located south of border checkpoints in New Mexico. (17)

Whether H.B. 2 and the checkpoints create a constitutionally impermissible barrier to abortion access remains significant for this group of women three years after the statutory provisions became law. The Fifth Circuit has issued an injunction partially limiting the law's effect by preserving access to the McAllen clinic for undocumented immigrants living in some but not all of the counties within the border zone in South Texas. (18) However, the injunction terminates if a clinic opens closer to the Rio Grande Valley yet beyond the checkpoints and its enjoinment of the admitting privileges requirement extends only to a single, part-time doctor named in the opinion. (19) Because the injunction is underinclusive with respect to undocumented women in the border zone and may terminate, and because the limited relief may not prevent the closure of the McAllen clinic, the separate question of the checkpoints' import to H.B. 2's application to the clinics persists. If access to abortion rights must be evaluated within the confines of one's state, (20) then the El Paso clinic poses constitutional concerns as well. From a theoretical perspective, the broader question of how to think about potential barriers to vindication of substantive due process rights posed by the conjunction of federal immigration enforcement and state regulatory law remains open as well.

This Note identifies and explicates an overlooked constitutional problem with H.B. 2, as applied to the border-zone clinics: in light of the backdrop of federal immigration enforcement, the Texas law violates the reproductive rights of more than eighty thousand women. In evaluating the potential rights burden imposed on undocumented women in the border zone by H.B. 2, the Note applies two analytical frameworks of constitutional law: the undue burden analysis specific to substantive due process abortion jurisprudence and the unconstitutional-conditions doctrine. The Note determines that H.B. 2 violates the reproductive rights of undocumented immigrants in the Texas border area under either analysis. Part I characterizes the spatially selective immigration enforcement regime that forms the backdrop to state legislation and notes the omission of the spatially disparate effect of H.B. 2 from litigation challenging the law. Under the undue burden framework, Part II argues, H.B. 2 has the effect of deterring undocumented women from seeking an abortion. Under the unconstitutional-conditions framework, as Part III explicates, the law violates undocumented women's abortion rights by conditioning abortion access on exposure to immigration enforcement. The causal set that gives rise to the rights burden is unusual: it is comprised of federal immigration enforcement, state statutory provisions regulating abortion clinics, and unauthorized immigrants' (lack of) immigration status. Part IV addresses an important set of counterarguments: it argues that on either framework analysis, and notwithstanding the other elements of the causal set, the state legislation is causally responsible for the violation. This conclusion is both doctrinally accurate and most consonant with constitutional commitments to individual rights in the border zone.

This Note is the first work to analyze the implications of the confluence of state laws with spatially disparate effects and internal checkpoints for the fundamental rights of undocumented immigrants. This confluence highlights the way in which the area along the U.S.-Mexico border inverts federalism protections for a vulnerable minority group that can exercise neither exit nor voice. It also provides one example of the significance of the undertheorized relationship between substantive due process rights and political and physical space.

1. THE BORDER ZONE AND H.B. 2

   1. Border Checkpoints: Spatially Selective Immigration Enforcement

      The interior Border Patrol checkpoints create a system of spatially selective immigration enforcement within the United States. (21) Individuals driving north from the cities, towns, and ranches along the international border must, eventually, stop at a roadblock set up along the highway. (22) Implementing regulations interpret the "reasonable distance" contemplated in the federal statute authorizing immigration searches as "within too air miles from any external boundary of the United States or any shorter distance" determined by certain Department of Homeland Security officials. (23) At a checkpoint within this "reasonable distance," a Border Patrol agent asks all occupants of the vehicle if they are United States citizens. (24) The agent may then refer individuals to secondary screening for further questioning as to their legal status in the United States. (25) If the Border Patrol agent determines that there is probable cause, individuals may be searched, detained, and, eventually, either charged with a crime or entered into immigration removal proceedings. (26) The Supreme Court has upheld warrantless vehicle stops without particularized suspicion at Border Patrol checkpoints against a Fourth Amendment...