The Supreme Court and a federal appeals court are now moving simultaneously to sort out a major constitutional controversy over a right to abortion for undocumented teenaged girls being held in federal immigration centers and who are now or will become pregnant.
After more than five months of giving some thought – off and on — to that dispute, the Supreme Court is scheduled to take up at a private conference on Friday what its options now are, in the wake of a new maneuver in lower courts by the Trump Administration to end the controversy abruptly, without a final constitutional answer.
In short, the nature of the dispute has changed markedly since the Administration first asked the Justices to get involved, early last November. A federal trial judge in Washington, D.C., has moved the fight from the specifics of individual pregnant teenagers’ cases to a broad new challenge to the federal government’s power to pursue its policy of firm resistance to abortions for scores of teenaged girls who enter the U.S. illegally and are placed in detention centers.
This week, Administration lawyers asked the U.S. Court of Appeals for the District of Columbia Court of Appeals to block that new challenge, and to take steps to return full control to federal officials over management of the health of the teenagers whom they now have in custody, or will have in the future.
The apparent inability or unwillingness of the Supreme Court to take definitive action so far has temporarily left an opening for the trial judge, U.S. District Judge Tanya S. Chutkan, to keep moving the case forward – and, in fact, significantly broadening it — despite the efforts of the Administration to shut it down.
When the Administration asked the Justices to get involved early in November, the dispute was focused only on a single teenager being held at a center somewhere in Texas – identified in court papers only as “Jane Doe.” And, as matters then stood, the teenager had already had an abortion, with the permission of the D.C. Circuit Court.
The Circuit Court had ruled that, in the specific circumstances of that individual case, “Jane Doe” had a right to choose to end her pregnancy. But it was clear even then that this single case was not likely to be the end of the dispute, because the lawyers for “Jane Doe” were preparing to seek the same choice for other detained undocumented girls.
The Administration argued in its appeal to the Supreme Court that the case was over when “Jane Doe” actually had an abortion, aside from a separate question of whether her lawyers had misled government lawyers in order to make sure that the abortion would not be thwarted. The government asked the Justices to take disciplinary action against the teen’s lawyers. Nothing has come of that separate request so far, and the basic government request to end the case remains unanswered by the Justices.
The main point of the appeal always has been to get the Justices to shut down all of the continuing activity in Judge Chutkan’s court, and to bar all claims that might be made on behalf of other teenaged girls in detention, now or later.
The Justices repeatedly scheduled discussions of that appeal, but those talks – whether detailed or perfunctory – led to no definitive action on the Administration’s requests. The Justices did order the Circuit Court to send up the full record of the “Jane Doe” case as it had unfolded in the trial court and in the Circuit Court. That was a clear sign that at least some of the Justices were interested in the specific facts of the dispute, as well as in the way the two sides’ lawyers had argued over the controversy. Still, that record arrived at the Court but no action was taken on the dispute itself.
In the meantime, Judge Chutkan on March 30 issued an opinion that dramatically altered the controversy. To keep the case going, she approved the creation of a legal “class” – that is, a group of individuals with the same legal claims – to represent all undocumented teenaged girls who were in or might later be placed in detention centers. Then, with the case thus revitalized, the judge issued a nationwide order barring immigration officials from interfering in any way with the right of detained teenaged girls to choose an abortion if they were or did become pregnant.
It is was clear at the time that the judge acted that neither of those orders would have been possible if the Supreme Court had done what the Administration has been seeking in the “Jane Doe” case.
The judge ruled that the Administration simply lacked the power to interfere with a detained teenager’s choice about her pregnancy, even though the office that supervises such detention has taken the position that the Constitution gives the government the right to refuse to “facilitate” abortion in any way.
At no point has the government made the argument that undocumented teenagers who enter the country illegally do not have any right to an abortion because of their illegal entry or their status as non-citizens. A group of states that have entered the case has been making that constitutional argument, but the Administration’s focus has remained solely on its authority to refuse to “facilitate” abortion as part of a firm government policy to protect fetal life.
Judge Chutkan’s broad new order was based on her finding that four teenagers who previously had been or currently were in detention could function as representatives of all such teenagers in or entering detention, so that there continued to be a real-world, live controversy.
The Administration promptly appealed to the D.C. Circuit, asking that court to block Judge Chutkan’s order. Only one of the four teenagers designated by the judge as representatives of the class was still in detention, government lawyers argued, and, they added, no single teenager could be a representative of others because the question of the health needs is a matter special to each individual in custody. Not all teenaged girls who enter a detention center and are or become pregnant will all seek abortions, and the facts will vary with each of them, the government attorneys contended.
The D.C. Circuit on Wednesday ordered lawyers for the teenaged girls to file by next Thursday their written argument against the Administration plea to block Judge Chutkan’s orders. The Administration will then have a week after that to file a reply.
Meanwhile, if the Supreme Court decides to take some action on the appeal pending there after the Justices’ private conference this Friday, that could upstage what has been happening in the lower courts, or it could simply put the Justices on the sidelines until the controversy returns to the Justices’ docket. The Justices have been made aware of Judge Chutkan’s new orders, with copies submitted to them by lawyers for the teenaged girls involved.
If the Justices opt to do something now, that could be announced as early as Friday afternoon, or perhaps next Monday morning. Nothing is expected in the D.C. Circuit until the further legal briefing is completed.