In a concurring opinion, Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit writes that the teenager has satisfied all the requirements under Texas law to obtain an abortion. She also says, "The government has bulldozed over ...
“It is the perfect storm between abortion and immigration, and the Trump administration has shown absolute hostility to both of those issues,” said Brigitte Amiri, the lead lawyer on the case for the American Civil Liberties Union, which is representing Jane Doe.
Devin M. O’Malley, a Justice Department spokesman, said on Tuesday that the agency was reviewing the order and had no immediate comment.
Throughout the case, the clock has been ticking: Jane Doe is nearly 16 weeks pregnant and Texas prohibits abortions after 20 weeks, unless a medical emergency exists. That fast pace only accelerated after the decision on Tuesday from the United States Court of Appeals for the District of Columbia Circuit. Her lawyers were attempting to get Jane Doe seen on Tuesday by an abortion provider for state-mandated counseling that must be given by the same doctor who will perform the procedure. They said she could undergo an abortion as early as Wednesday.
Jane Doe’s lawyers say federal officials had been effectively “holding her hostage” – preventing her from receiving an abortion and requiring her to have a sonogram against her will and to undergo counseling at a religiously affiliated “crisis pregnancy center” that urged her to continue the pregnancy. They also accuse the federal officials responsible for her care of violating a state court’s order.
Under Texas law, a minor who wants to end her pregnancy must either obtain her parents’ permission or receive permission from a judge. Jane Doe, with the assistance of Jane’s Due Process, a nonprofit group that provides legal services for pregnant minors, received a judicial order when she was 11 weeks pregnant, meaning that she could undergo an abortion without notifying her parents.
But Jane Doe and her lawyers say federal officials violated that order by telling her mother about her pregnancy and plans for an abortion. Jane Doe has told her lawyers that she did not want her parents to know, because they beat an older sister who was pregnant so she would have a miscarriage.
Abortion is banned in Jane Doe’s home country in Central America, which has not been identified.
Lawyers for the Justice Department have not disputed that Jane Doe has the right to an abortion. But they have argued that the government is not required to facilitate access to abortions, putting the teenager in a precarious position since she is in federal custody.
Because Jane Doe chooses to not return to her home country, Justice Department lawyers have effectively argued that she is bringing this ordeal upon herself. Jane Doe “may elect voluntary departure to end her federal custody, which would eliminate the alleged ‘restriction’ or ‘obstacle’ of which she complains,” the Justice Department wrote in court documents.
On Oct. 18, Judge Tanya S. Chutkan, of the United States District Court in Washington, ordered the government to allow the teenager to get an abortion.
But last Friday, a three-judge panel of the appeals court gave federal officials until Oct. 31 to find a sponsor who could take custody of the girl. Undocumented minors are often placed with sponsors while the government considers whether they can stay in the United States permanently, and a sponsor would be able to take the girl to have the abortion without the government “facilitating” it.
The A.C.L.U. called it “far-fetched” to expect the government to find and vet a sponsor so quickly. Given the stage of the pregnancy, the A.C.L.U. asked the full appeals court to hear the case. On Tuesday, the full court, in a 6-3 decision, agreed with the A.C.L.U.
“Remember, we are talking about a child here,” wrote Judge Patricia Millett, an Obama administration appointee who voted with the majority. “She did everything that Texas law requires to obtain an abortion. That has been undisputed in this case.”
In a dissent, Judge Brett M. Kavanaugh, a George W. Bush appointee, said the sponsor plan might not be ideal, but it was not unconstitutional.
“After all, the Supreme Court has repeatedly said that the government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the government does not impose an undue burden on the abortion decision,” he wrote.
In a separate dissent, Judge Karen LeCraft Henderson, who was appointed by the first President Bush, made an argument the government itself did not make. She wrote that an undocumented minor does not have the same right to an abortion that a citizen has. “Under today’s decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip” to the United States, she wrote.
In a sign of the polarizing nature of the case, eight states with Republican attorneys general, led by Texas, filed a brief supporting the government, while 13 states with Democratic attorneys general, along with the District of Columbia, backed Jane Doe.
Unaccompanied pregnant minors have attempted to illegally cross the border for decades, and a number of them have had abortions while in federal custody. But fights over their access to abortions predate the Trump administration. Last year, a federal lawsuit, which is ongoing, faulted the government for placing a number of minors in the care of religiously-affiliated organizations that would not let them obtain abortions and birth control.
But A.C.L.U. lawyers said that in March, the Trump administration went further, enacting a policy that requires the director of the Office of Refugee Resettlement, the health department division that oversees the care of unaccompanied minors, to personally approve any abortion.
Advocates for abortion rights have accused the director, Scott Lloyd, of pushing anti-abortion beliefs onto the young women in federal custody.
In emails that were made public as part of the case filed last year, Mr. Lloyd appears to have personally met with undocumented pregnant teens in shelters and spoken with them about their pregnancies. After traveling to San Antonio in March and visiting with one minor, he wrote to some his staff that if things “get dicey” with the minor’s adult sponsor, “I know a few good families with a heart for these situations who would take her in in a heartbeat and see her through her pregnancy and beyond.”
A spokesman for the health department said Tuesday that the office was deciding whether to respond.
In a declaration Jane Doe made earlier this month, she accused federal officials of forcing her to have a baby.
“Defendants have been talking to me about my pregnancy – I feel like they are trying to coerce me to carry my pregnancy to term,” she wrote.
Illegal Immigration,Abortion,Decisions and Verdicts,American Civil Liberties Union,Texas