Undocumented Immigrant Teen Has Abortion Ending Weeks-Long Court Battle

By Ann E. Marimow and Maria Sacchetti, The Washington Post

25 October 17

n undocumented teen in federal custody ended her pregnancy Wednesday morning less than a day after a judge’s order forced the government to allow the 17-year-old to be promptly transferred to an abortion facility.

The announcement from the teenager’s attorneys puts an end to a case that raised difficult political questions and highlighted the Trump administration’s new policy of refusing to “facilitate” abortions for unaccompanied minors.

The teenager, identified only as Jane Doe in court papers, is being held in Texas for illegally entering the country and was nearly 16 weeks pregnant. Texas law bans most abortions after 20 weeks.

“Justice prevailed today for Jane Doe. But make no mistake about it, the administration’s efforts to interfere in women’s decisions won’t stop with Jane,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project which represented the teen.

The ACLU is continuing its broader challenge to the administration’s new policy on behalf of what the organization says are hundreds of undocumented pregnant teenagers in federal custody.

The teenager’s procedure Wednesday came after a weeks-long legal battle that moved swiftly through the courts, with judges issuing contradictory rulings.

On Tuesday, the full U.S. Court of Appeals for the D.C. Circuit took the unusual step of reversing a three-judge panel of the same court without first holding oral argument. The panel decision would have postponed the abortion.

Instead, the D.C. Circuit’s 6-3 ruling sent the case back to U.S. District Judge Tanya S. Chutkan, who hours later ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.

Lawyers for the Department of Justice had been considering whether to ask the Supreme Court to put the D.C. Circuit order on hold, which would have brought the volatile issue of abortion to the high court in a very personal and real-life challenge.

But they may have miscalculated how quickly the girl could receive an abortion. Texas law requires counseling from a doctor at least 24 hours in advance of an abortion, but the teen underwent counseling last week allowing her to go forward once Chutkan issued her order.

The government lawyers did not immediately ask for a hold on the D.C. Court opinion after the Tuesday ruling. By the time the Supreme Court opened Wednesday, it appears there was no issue left for the justices to decide.

In a statement provided Wednesday by the ACLU, the teenager spoke publicly for the first time. She said she knew immediately after learning of her pregnancy after her border crossing that she was “not ready to be a parent.”

Her statement said, “People I don’t even know are trying to make me change my mind. I made my decision and that is between me and God. Through all of this, I have never changed my mind.”

The teen’s case attracted attention from both sides of the abortion debate. Democratic lawmakers have demanded answers from HHS Acting Secretary Eric Hargan about why the Trump administration quietly changed federal policy to deny access to abortions for minors in custody.

The Department of Health and Human Services, which is responsible for caring for detained unaccompanied minors, has said “there is no constitutional right” for an immigrant minor to an elective abortion while in federal custody and that the government is trying to “promote child birth and fetal life.” Scott Lloyd, who directs the agency’s Office of Refugee Resettlement, has personally intervened to try to persuade unaccompanied minor girls not to have abortions, according to the HHS.

The D.C. Circuit’s ruling on Tuesday was opposed by the court’s three active judges nominated to the bench by Republican presidents. Judge Brett M. Kavanaugh said the majority had “badly erred” and created a new right for undocumented immigrant minors in custody to “immediate abortion on demand.”

Judge Karen LeCraft Henderson went further in a separate dissent finding the undocumented teenager had no constitutional right to an elective abortion. “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country,” she wrote.

Lawyers for the undocumented teenager asked the full appeals court to rehear her case after a divided panel gave the Department of Health and Human Services until Oct. 31 to find a sponsor to take custody of the girl.

Lawyers for the teenager argued the government was violating the girl’s constitutional right to obtain an abortion. The teenager has already received permission from a Texas judge to bypass the state’s parental consent requirement and terminate her pregnancy.

“Her capacity to make the decision about what is in her best interests by herself was approved by a Texas court,” Judge Patricia A. Millett wrote Tuesday.

Millett and five other judges nominated to the bench by Democratic presidents voted to reinstate the lower court’s initial order allowing the abortion. Judge Cornelia T. L. Pillard was recused. Her spouse is the ACLU’s legal director.

In last week’s 2-1 decision, Kavanaugh and Henderson gave HHS until next week to find a sponsor to take custody of the girl. That would have allowed her to be released and to seek the abortion without government involvement.

Government lawyers had said prospective sponsors have inquired about the teenager. But the girl’s lawyers on Sunday filed a sworn statement from the former ORR director during the Obama administration who described the lengthy process of vetting sponsors.

In his dissent Tuesday, Kavanaugh said the government should be able to “expeditiously transfer” the teenager to a sponsor — typically a relative or friend — who could help her make a major life decision. The government, Kavanaugh wrote, “is merely seeking to place the minor in a better place when deciding whether to have an abortion.”

Millett disputed the idea that the sponsorship process would have gone quickly.

“There is nothing expeditious about the prolonged and complete barrier to [the teenager’s] exercise of her right to terminate her pregnancy that the panel order allowed the government to perpetuate.”