Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework

*J.D., University of Virginia School of Law, 2023. Thank you to Professor Amanda Frost, Professor Kevin Cope, and Professor Naomi Cahn for their advice and insights throughout the research and writing process. Additionally, thank you to the editors of the Virginia Law Review, especially Emma McLaughlin, for their edits and suggestions.Show More

Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of or admitted to performing an illegal abortion. Because the standard of moral turpitude is one that evolves with society as societal values change, it is unclear that the BIA would still find performing an illegal abortion to be a crime involving moral turpitude today. In order for a conviction to constitute a crime involving moral turpitude, the statute the defendant was convicted under must require sufficient intent and criminalize reprehensible conduct. This Note looks to the history of moral turpitude and the current tests applied in immigration law to determine whether performing an illegal abortion could be considered a crime involving moral turpitude post-Dobbs v. Jackson Women’s Health Organization. After applying the relevant tests and comparing performing an illegal abortion to crimes that have previously been designated crimes involving moral turpitude, this Note reaches the conclusion that performing an illegal abortion should not be found to be a crime involving moral turpitude.

Introduction

In 1946, before Roe v. Wade or Planned Parenthood of Southeastern Pennsylvania v. Casey were decided,¹ 1.See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).Show More the Board of Immigration Appeals (“BIA”) determined that performing an illegal abortion was a crime involving moral turpitude (“CIMT”) in the immigration context.² 2.Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946).Show More As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of performing an illegal abortion.³ 3.The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii).Show More While there has not been an immigration case determining whether performing an illegal abortion is a CIMT post-Roe, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization⁴ 4.142 S. Ct. 2228 (2022).Show More creates the possibility that this may change. It is important for both criminal defense attorneys and immigration advocates to be aware of the implications of this reality.

This Note explores the history of moral turpitude and analyzes whether performing an illegal abortion would be considered a CIMT today. After the Supreme Court decided Dobbs, overturning Roe and Casey,⁵ 5.Id. at 2242.Show More the United States faced, and still faces, a period of uncertainty regarding abortion laws. At the time Dobbs was decided, some states had trigger laws in place that immediately outlawed virtually all abortion as soon as Roe was overturned,⁶ 6.See, e.g., La. Stat. Ann. § 40:1061 (2023).Show More while other states passed new abortion bans,⁷ 7.See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV].Show More the strictest of which criminalized abortion from the time of conception.⁸ 8.Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023).Show More These new laws conflict with previously existing statutes at times⁹ 9.Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC].Show More and create an unclear line between a legal abortion under federal law and a felony abortion under state law.¹⁰ 10.Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023).Show More Other states have since passed new statutes to protect an individual’s right to receive an abortion.¹¹ 11.As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY].Show More Immigration attorneys have recognized the danger these new abortion laws may present in immigration law.¹² 12.Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP].Show More

The term “crime . . . involving moral turpitude” first appeared in immigration law in the Immigration Act of 1891 as a ground for exclusion¹³ 13.Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084.Show More and was designated by Congress as a ground for removal in 1917.¹⁴ 14.Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874.Show More The term “crime involving moral turpitude” has never been defined by Congress¹⁵ 15.See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”).Show More and instead has largely been left to judicial interpretation. The result is a patchwork area of law, with circuit splits both as to what constitutes a CIMT and what the correct test is to apply to make that determination. The current definition put forth by the BIA is that a CIMT is “conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”¹⁶ 16.Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision).Show More

This Note will analyze total abortion bans enacted in the United States under the modern immigration CIMT framework and provide a basis for immigration advocates to argue that performing an illegal abortion is not a CIMT. Part I provides a brief history of CIMTs, both within and beyond immigration law. Part II provides an overview of the current frameworks used by the BIA and federal courts to determine if a conviction constitutes a CIMT. Part III analyzes how modern abortion bans are likely to fit within this framework, finding that these illegal abortions are unlikely to be considered CIMTs. Part IV discusses the potential implications were the BIA or a federal court to find that performing an abortion is a CIMT.

1.  See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). ↑
2.  Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946). ↑
3.  The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii). ↑
4.  142 S. Ct. 2228 (2022). ↑
5.  Id. at 2242. ↑
6.  See, e.g., La. Stat. Ann. § 40:1061 (2023). ↑
7.  See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV]. ↑
8.  Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023). ↑
9.  Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC]. ↑
10.  Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023). ↑
11.  As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,
    

    Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY]. ↑

12.  Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP]. ↑
13.  Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084. ↑
14.  Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874. ↑
15.  See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”). ↑

16.  Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision). ↑