Supreme Court Reviewing Appeals Court Rulings on Forced Abortion Asylum

International   |   Steven Ertelt   |   May 8, 2008   |   9:00AM   |   WASHINGTON, DC

Supreme Court Reviewing Appeals Court Rulings on Forced Abortion Asylum

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by Steven Ertelt Editor
May 8
, 2008

Washington, DC ( — The Supreme Court is reviewing decisions made at the appeals court level about forced abortion asylum for victims of the one-child policy in China. The dispute is over whether partners of the women who are victimized can qualify for asylum and interpreting the U.S. asylum law.

Last year, a ruling against asylum for the partner of one victim by the 2nd U.S. Circuit Court of Appeals put it at odds with the 9th Circuit, which supported it.

In the June 2007 decision, the 2nd Circuit ruled that spouses and unmarried partners of women who face inhumane treatment under rigid Chinese population control measures do not automatically qualify for asylum.

A month earlier, the 9th Circuit ruled that asylum protections include the women as well as their spouses or partners.

The Bush administration is taking the position that the 1996 asylum law doesn’t cover partners, even though the pro-life Congressman who wrote the law said it was intended to cover them.

Part of the difference in approach has to do with the distinction between traditional and legal marriage and how Chinese officials prohibit having children until couples are legally married even though some have traditional marriages.

According to an AP report, Solicitor General Paul Clement wrote that the distinction is important vis-a-vis U.S. law.

"An applicant who participates in a traditional marriage ceremony, but is not legally married, is not automatically deemed eligible for asylum if his partner is forced to undergo an abortion," he said.

But Rep. Chris Smith, who authored the law in dispute, says the Bush administration is wrong to blame the victim and should take a more expansive view of the law allowing all victims to seek asylum regardless of the kind of marriage they had.

"The Solicitor General is profoundly wrong and misguided in taking that view," he told AP.

"Not to include both when both are harmed irreparably would be a gross miscarriage of justice," Smith said. "These are bona fide marriages. But even if this were boyfriend-girlfriend, what would happen if the couple defended their unborn child? She gets asylum and he doesn’t?"

In the competing rulings, the 2nd Circuit court said section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 explicitly protects those 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."

However, the appeals court alleges the law is unambiguous about extending protection beyond that — such as helping spouses or partners of the victims.

But the 9th Circuit ruled unanimously the other way.

"Both forms of persecution have serious, ongoing effects," the panel wrote. "We see no way to distinguish between the victims of forced sterilization and the victims of forced abortion for withholding of removal eligibility purposes."

Writing for the 2nd Circuit, Judge Guido Calabresi acknowledged that his court is out of step with colleagues on most other circuits.