Washington – Cai Luan Chen was 19 when he fell in love with Chen Gui.
Gui was just 18, and China’s oppressive population laws forbade them from marrying until they reached their 20s.
So Gui moved in with Chen and his parents and a year later discovered she was pregnant.
The Chinese government ordered Gui to have an abortion. Officials came to the house and beat Chen when he wouldn’t tell them where Gui was hiding.
Chen and Gui fled. She was hunted down and forced to abort the child in her eighth month of pregnancy. He made it to America, where he asked for political asylum, citing a U.S. law that protects couples fleeing China’s abortion policies.
Judge Samuel Alito turned him down.
Americans will hear a lot about abortion when the Senate begins hearings on the Alito nomination Monday. He has been named to replace retiring Justice Sandra Day O’Connor, whose key swing votes helped save Roe vs. Wade.
As Alito himself wrote, when applying for a top job in the Reagan administration, “I am particularly proud of my contributions in recent cases in which the government argued … that the Constitution does not protect a right to an abortion.”
The judge is a conservative Republican appointee from a Roman Catholic, Italian-American family. When a reporter asked Alito’s 90-year-old mother about her son’s position on abortion, she wasted no words. “Of course he’s against abortion,” Rose Alito replied.
But the Chen case illustrates that Alito’s defining characteristic may not be his politics or religion, but rather his deference to power.
In his professional career, Alito has had just one employer: the U.S. government. Before becoming a judge, he was a federal prosecutor and Justice Department attorney. Even in an abortion-related case like Chen vs. Ashcroft, he sees things through the prism of government authority.
“He rules in favor of institutional actors and defers to agency decisions in many settings while showing skepticism toward individual litigants’ claims,” a group of students and professors at his alma mater, Yale Law School, concluded after studying his career.
“He appears to support a narrow view of civil rights, prisoners’ rights and workers’ rights,” they found.
Chen filed his request for political asylum after arriving in the U.S. in 1996. By then, Gui had been compelled to have the abortion, and was living with Chen’s parents.
An immigration judge initially granted the asylum petition. There was no doubt about what the law said: “A person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted.”
But the U.S. Immigration and Naturalization Service really wanted Chen deported, and appealed to the Board of Immigration Appeals.
The appeals board sided with the INS. The U.S. statute covered only husbands and wives, it ruled, not unmarried couples like Gui and Chen.
So Chen appealed to the federal courts. He explained to Alito how he and Gui had been forbidden to marry under the same Chinese laws that compelled them to have an abortion. They had applied for a marriage license, but were turned away because of their ages.
Alito, writing for a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit in 2004, sided with the INS.
The Board of Immigration Appeals’ interpretation of the law “contributes to efficient administration and avoids difficult and problematic factual inquiries,” Alito concluded.
“A rule is not irrational just because it is underinclusive,” wrote Alito. And so it was “reasonable” to send Chen back to China.
The law is a tough business. Federal judges get paid big salaries to break people’s hearts; it’s part of the job. Perhaps the first immigration judge did get it wrong.
Yet anti-abortion and pro-choice senators alike should ask themselves whether they want someone with the inclinations of a lap dog or a watchdog. Especially at a moment when the White House is asserting new executive powers.
It’s a “reasonable” question. Senators get big salaries to break hearts, too.
John Aloysius Farrell’s column appears each Sunday in Perspective. Comment at the Washington and the West blog () or contact him at jfarrell@denverpost.com.
