An undocumented teen is pregnant and in custody. Can the U.S. stop her from getting an abortion?
Appeals court delays abortion for undocumented teen
Adapted from a story by The Washington Post’s Maria Sacchetti and Ann E. Marimow.
An undocumented teenager learned she was pregnant following a medical examination after she was taken into federal custody, her lawyer said.
The 17-year-old is being held at a Texas shelter near the Mexican border that is overseen by the U.S. Department of Health and Human Services, which is responsible for undocumented minors caught crossing the border without family.
But when the teenager requested an abortion in late September, she ran into complications. A state judge gave her permission to have an abortion, but she says federal officials refuse to transport her to a clinic.
Now, she and her lawyers are embroiled in a legal battle to end her pregnancy. The teen is being represented by the American Civil Liberties Union.
On Friday, a D.C. appeals court panel declined to order the federal government to immediately allow an abortion for the teenager. Instead, the court is giving HHS 11 days to find a sponsor to take custody of the girl.
If the government does not find a sponsor, such as an adult relative in the United States who can care for the girl, the case would revert to a lower court judge who ruled Wednesday that the government should facilitate an abortion for the teenager “without delay.”
The court’s 2–1 decision allows the Trump administration to maintain its policy of not facilitating abortions for the undocumented minors in its custody.
It also increases the risk that she will run out of time to have the procedure. She’s in her 15th week of pregnancy. Texas bans most abortions after 20 weeks.
How the case unfolded
Federal officials denied her request to terminate the pregnancy on Sept. 27, citing the Trump administration’s policy of “refusing to facilitate abortions” for undocumented minors, a departure from the Obama administration, which allowed them.
The government says the 17-year-old, who entered this country in September, could solve the problem herself by voluntarily leaving or finding a sponsor in the United States to take custody of her.
“The Administration stands ready to expedite her return to her home country,” the White House said in a statement.
But the ACLU says she is entitled to have an abortion, which she would pay for, under the 1973 Supreme Court ruling in Roe v. Wade.
They say the teen, who is from Central America, was abused by her parents and cannot easily return home. And although she has relatives in the United States, she may not find a sponsor in time to terminate her pregnancy. Abortion is illegal in the girl’s homeland. The ACLU has not released her nationality to preserve her privacy.
The Office of Refugee Resettlement, which is under the HHS umbrella, has been at the center of the case as well.
Court records show that on March 30, Scott Lloyd — the office’s director — said in an email that federally funded shelters “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
There are about 5,000 unaccompanied minors in the office’s custody.
The lower court ruling
On Wednesday, the ACLU urged U.S. District Judge Tanya S. Chutkan to rule in their favor.
“They are holding her hostage to ensure that she does not have an abortion, but rather continues the pregnancy, and has a baby, against her will,” the ACLU said in a legal brief. “Entirely shutting off a person’s access to abortion services is the greatest conceivable ‘undue burden’ on a person’s constitutional right to an abortion — it prohibits her from exercising her rights at all.”
Chutkan ended up siding with the ACLU and ordered the government to swiftly allow the teenager to meet with a doctor for counseling that Texas requires at least 24 hours before an abortion.
The ACLU also asked the lower court judge to extend any protections offered to the 17-year-old to other unaccompanied, undocumented minors who are pregnant and in U.S. custody.
But the Justice Department appealed, which led to Friday’s ruling.
Appeals court decision
The appellate ruling by judges Karen LeCraft Henderson and Brett M. Kavanaugh, both nominated by Republican presidents, allows the judges to avoid issuing a hasty decision in a case that involves complex areas of immigration and abortion law.
Judge Patricia A. Millett issued a sharply worded dissent to the decision, calling the majority’s ruling “wrong” and “unconstitutional.”
“There are no winners in cases like these. But there sure are losers,” Millett wrote. “Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”
The panel’s decision noted that government lawyers acknowledged that the girl, who is in the United States illegally, “possesses a constitutional right to obtain an abortion in the United States.”
During oral arguments, the judges questioned the government’s stance, noting that undocumented immigrants in other types of federal custody — including adults in immigration detention and federal prisons — may seek elective abortions at their own expense.
“Even if she has that right, we don’t have to facilitate it,” said Catherine H. Dorsey, the government lawyer representing HHS in the case.
“We’re not putting an obstacle in her path,” Dorsey told the judges Friday. “We’re declining to facilitate an abortion.”
Dorsey told the appeals court that the government had over the past month identified two potential sponsors — both relatives — but they had fallen through. The government performs background checks on potential sponsors, a process that could take weeks or months.
