Acting in the face of the reality that the Supreme Court might soon take away her power to act, a federal judge in Washington, D.C., on Friday ordered the Trump Administration to stop interfering with the right of pregnant teenagers being held in immigration detention centers to make their own decisions whether to seek an abortion.
U.S. District Judge Tanya S. Chutkan found that at least one hundred – and probably several hundred – teenaged women who enter the country illegally have become pregnant before arrival or while being detained, and they confront the prospect of an “absolute veto” by officials over their choice about continuing or ending pregnancy.
The judge’s new ruling seeks to protect a right of choice for all of those teenagers, because the judge decided to create a class of such young women, made up of all pregnant, undocumented immigrant minors who are now or will later be held in custody by the federal agency that controls resettlement of refugees. The constitutional challenge to government policy will continue with that class representing the individuals now or in the future affected by the policy.
The judge then went on to temporarily bar that agency from taking any steps to interfere with those minors’ reproductive choices, while the case moves forward in the judge’s court.
The head of the refugee agency, E. Scott Lloyd, has the sole authority to control those choices, the judge declared, and routinely uses it to veto every choice to seek an abortion because of his personal ideological belief that abortions always involve “violence against another human being.” An official memo cited by the judge showed that Lloyd would oppose an abortion even when the pregnancy had resulted from rape.
Lawyers for Lloyd have sought to defend the policy as a refusal to “facilitate” abortion, but Judge Chutkan said that a detained minor needs no assistance from the agency to have an abortion because private supporters will pay for the procedure and make all arrangements. The agency policy is so sweeping, the judge declared, that it “appear to be divorced” from common sense and is “at odds with reality.”
One of the individual cases in which the judge had earlier ordered an abortion for a teenager over the objections of the agency has been awaiting action on a Trump Administration appeal at the Supreme Court since January. The Justices have scheduled that case for private discussion ten separate times, with no action yet. It was most recently set for consideration at a private conference last Thursday. Action could come as early as Monday.
The Administration appeal asked the Court to dismiss that one case because the individual involved has had an abortion, but it also went further and asked for an order barring any further claims by any other teenager affected by the policy. Its main argument is that prior rulings by the Justices give government officials the option of choosing not to “facilitate” abortion, even though a right to abortion does exist under the Constitution.
Judge Chutkan’s new ruling changes considerably the legal status of the controversy, because her approval of an ongoing case on behalf of a class of detained pregnant minors overcomes any problem that there is no longer a genuine legal controversy. The separate part of her ruling, a temporary ban on any interference with abortion choices by any detained teenager, now or in the future, also invokes new authority beyond what is at issue in the case before the Supreme Court.
Because the controversy is now being actively reviewed by the Justices, one or both sides in the dispute would be expected to notify the Court about Judge Chutkan’s decision on Friday. If so, that could make a difference in how or when the Justices decide the government’s pending appeal. It seems likely now that the controversy is not near its end.
While Administration lawyers have been basing their defense of the policy on the refusal to “facilitate” abortion, and not on an argument that the teenagers have no right to make the choice, a group of states that have entered the case have argued that foreign nationals who enter the country illegally do not have any such right.
Although there may be adult women in detention centers who are or will become pregnant, the Administration has not disputed that they have a constitutional right to choose to have an abortion. It did not appeal, for example, when one of the young women involved in the case before Judge Chutkan reached her 18th birthday and was released to another agency, permitting her to make the choice.
Throughout the several cases that Judge Chutkan has been reviewing, she has proceeded on the assumption that, once a teenager has reached American soil, she has a right to seek an abortion if that is found to be in her “best interests.” The relief agency’s policy has contended that abortion never served the “best interests” of any pregnant teenager in its custody.
In the one case before Judge Chutkan that went to a federal appeals court in a challenge by the Administration resulted in a decision upholding the judge and, at least temporarily, supporting the existence of a right to choose for pregnant teenagers in immigration detention centers.
Those centers are scattered across the country, and teenagers who arrive in the country illegally are held until decisions can be made about whether to deport them or to release them in the U.S. if a sponsor can be found. The refugee agency takes the position that its policy against aiding abortions does not impose a burden on any teenager, because each has the option to return to her home country or to seek a sponsor in the U.S. who could allow an abortion. Judge Chutkan ruled again Friday that those are not realistic options for a teenager regarding her pregnancy: she may not be able to get an abortion in her own country, and the sponsorship prospect involves a lengthy process that might continue beyond a pregnancy’s term.