Splitting 2-to-1, a federal appeals court on Friday temporarily barred a Central American teenaged girl, in the country illegally, from getting an abortion in a Texas clinic. It imposed an 11-day delay in her case, to give government officials time to try to line up a sponsor who could then arrange for her to end her pregnancy.
The case of the 17-year-old, identified in court papers only as “Jane Doe,” raised a potentially profound constitutional question: do undocumented females who enter the U.S. illegally and are or become pregnant have a right to abortion? It is an issue the Supreme Court has never confronted directly in the 44 years since it first recognized a woman’s constitutional right to end a pregnancy.
However, in its ruling issued hours after holding a lengthy hearing, the majority of the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did not attempt to decide that constitutional issue. It noted that the Trump Administration, in refusing to “facilitate” an abortion, was not raising that issue but was simply assuming – for purposes of this case – that the young woman had that right.
The majority – Circuit Judges Karen LeCraft Henderson and Brett M. Kavanaugh – did not explain in full why they had ruled against the teenager’s plea for an immediate abortion, but said only that they were giving the government time – if it acted “expeditiously” – to find a sponsor to take on the responsibility of dealing with her decision.
Circuit Judge Patricia A. Millett dissented and, in a strongly worded, nine-page opinion, argued that the Trump Administration was engaging in “an astonishing power grab” that assumes it can override a state law under which the teenager has been given permission to have an abortion, and can carry out a veto of an abortion that the woman has a right to have.
The Administration position, the dissenting judge wrote, “flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice about whether to continue a pregnancy at this early stage.” The young woman is in the 15th week of pregnancy, and if she is unable to have an abortion within a matter of only a few weeks, the pregnancy may become too advanced for her to be eligible under Texas law and abortion clinic practices to have the procedure.
Judge Millett said that the majority’s ruling will mean that the young woman must continue with the pregnancy “for multiple more weeks,” because of the somewhat complex procedure that federal immigration policies require for getting a sponsor for an undocumented foreign national being held in custody.
While the Trump Administration has been resisting the teenager’s request to be released from a detention center long enough to have an abortion, arguing that it is entitled to take steps in favor of childbirth and protection of the fetus involved, it has conceded that the appointment of an acceptable sponsor would clear the way for her temporary release to obtain an abortion.
The order approved by the two-judge majority specified that those judges agreed with the government position that it would not impose an unconstitutional burden on her right to seek an abortion to require her to have an approved sponsor before she is allowed to be released from custody for that purpose. But the judges said they agreed with that position only if the process of arranging a sponsor is done quickly.
The majority declared that, if the government has not found a sponsor and the teenager is not temporarily released from the detention center by October 31, then the federal trial judge who earlier this week ordered her release for the procedure would be free to reimpose that duty on the government. That judge’s release order was overturned, at least for the next 11 days.
Even if the trial judge does again order release for an order, however, the court’s order noted that the government would have the right to challenge that in an “immediate” appeal to the Circuit Court. Only two days passed between the time that the trial judge had ordered the release and the abortion and the Circuit Court decided what to do in reaction to the government’s swift appeal.
The panel of judges (with one taking part by teleconference) was scheduled to hold the Friday hearing for 30 minutes, but the judges were so active in their questioning that the hearing actually continued for 91 minutes.
Although the government lawyer who argued the case told the court, in answer to questions, that she did not have authority from her superiors to take a position on whether an undocumented immigrant who is pregnant had a constitutional right to abortion, the state of Texas and seven other states were allowed to file a brief in the case explicitly arguing that no such right exists.
The majority did not react to that brief, but Judge Millett disputed its point at considerable length, contending that past Supreme Court rulings do provide constitutional protection for immigrants who have entered the country without legal permission.
The teenager in the case is from an unidentified Central American nation who has told her lawyers that she fled to the U.S. because of abuse by her parents. Although the government has told her lawyers that she can leave the country voluntarily to go back to her home country, the government lawyer told the court on Friday that her home country does not permit abortions, at least for minors.
While the agency that is responsible for the teenager while she is in a detention center in Texas, the Department of Health and Human Services, the government’s key immigration enforcement agency follows a policy that allows an adult woman who is in custody after entering the U.S. illegally to obtain an abortion if she becomes pregnant. A number of questions from the judges on the panel Friday questioned why two agencies of the same government would follow such different policies.