Judge Alito and Forced Abortions

A quick review of Judge Alito’s decisions suggests very few that have international law implications. One recent decision that merits significant attention is Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004). At issue is whether the fiancée of a woman who was forced to undergo an abortion in China is entitled to asylum.

Factually the case is extraordinarily sympathetic. A young Chinese couple in China become pregnant, want to marry, and do not want to abort their child. But China has two offensive policies: forced abortions and severe restrictions on the permissible age of marriage. Couples in China are prevented from getting married if they are not of marriageable age (25 for a man and 23 for a woman). Chen and his fiancée were 19 and 18 at the time they sought a marriage license. When they attempted to secure a marriage license they were refused. When his fiancée was finally found by Chinese authorities, she was forced to undergo an abortion in her eighth month of pregnancy.

A few key legal aspects of the case are important. First, our asylum law only affords protection for specific reasons: a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Second, these decisions are initially made by immigration judges, and federal courts grant Chevron deference to their decisions. Past immigration decisions recognize that a forced abortion is persecution on the basis of political opinion and that a woman and her spouse could secure asylum on that basis. But in Chen the agency held that a fiancée of a woman forced to abort did not enjoy such protection. Thus, marital status was the defining distinction that precluded Chen from securing asylum because his fiancée was forced to abort.

The Third Circuit, per Judge Alito, upheld the agency determination. Judge Alito found that there was a rational basis for the distinction. The immigration authorities use “marital status as a rough way of identifying a class of persons whose opportunities for reproduction and child-rearing were seriously impaired … as the result of the performance of a forced abortion or sterilization on another person.” The decision to adopt a bright-line rule and not extend this protection to unmarried partners was found to satisfy the requirements of Chevron deference. To conclude otherwise would force the agency to make difficult distinctions between unmarried persons who had a truly close relationship with the woman forced to abort and those persons who do not.

The most interesting section of the opinion was the question of whether China’s refusal to permit Chen to marry was itself persecution. Judge Alito opined that it was not.

[A]lthough minimum marriage ages of 23 and 25 are contrary to our traditions and international practice, we cannot go so far as to say that enforcement of these laws necessarily amounts to persecution. American constitutional law recognizes marriage as a fundamental right … but all states impose minimum marriage age requirements, and we assume that these laws are constitutional. Laws setting reasonable minimum marriage ages are also recognized as legitimate and desirable under international human rights law. It is certainly true that marriage laws in this country set the minimum age for marriage considerably below 23 or 25. Almost all states set 18 as the minimum age to marry without parental consent…. It is also true that the marriage laws of other countries generally set the minimum marriage age at 18 years or less, and it appears probable that no other country sets the minimum as high as does China. A law or practice, however, does not necessarily rise to the level of “persecution” simply because it does not satisfy American constitutional standards or diverges from the pattern followed by other countries. As we have noted, persecution is an “extreme” concept that “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Here, we cannot say that the BIA was bound to conclude that minimums of 23 and 25 amounted to persecution.

There are several interesting thoughts regarding the Chen decision. Admittedly this is not a constitutional case and therefore it provides little to no information on his views of abortion in that regard. In addition, it is very hard to draw firm conclusions regarding Judge Alito’s stance on key issues in a case that involves Chevron deference. The government rarely loses in a case involving such a deferential standard. If our immigration authorities had said yes it was persecution, he likely would have deferred to that decision as well. But Chen does provide insights on Alito’s decision-making.

First, it appears Judge Alito takes executive deference very seriously. This is a borderline case of an agency refusing to broaden a rule the spirit of which could encompass Chen’s situation. Second, Judge Alito appears to embrace cultural diversity in human rights. He is unwilling to presume that a practice that does not satisfy American standards and near uniform foreign practice necessarily constitutes persecution. Third, the decision is neither pro-life nor pro-choice. It is pro-deference. Forced abortions deny choice and deny life. But the question is not whether the practice is abhorrent, which he no doubt would agree. The question is whether a fiancée of someone who suffered such a terrible procedure is entitled to asylum based on a well-founded fear of persecution. Our immigration authorities said no, and Judge Alito was unwilling to find that conclusion to be wholly irrational.