The US Court of Appeals for the DC Circuit issued an order Friday further delaying an undocumented teenager’s request to obtain an abortion, while in custody in a government-funded shelter South Texas.
The case involves a pregnant 17-year-old, identified as “Jane Doe” in court documents, who is currently 15 weeks pregnant and has so far been barred from release to terminate her pregnancy. While the shelter itself has no qualms with allowing the procedure, according to court documents, Trump administration officials have declined to give shelter officials the necessary permission to release Doe for the appointment.
A state judge previously ruled that the teenager could get an abortion without the parental permission required by Texas law, but she and her lawyers say federal officials have refused to allow her to travel to a clinic. Doe’s lawyers are not asking the government to pay for the procedure or arrange the transportation.
The appeals court, in an unsigned order to which one of the three judges dissented, stated in an order Friday that the best way to resolve the case would be to order an expedited search for a US “sponsor” for Doe — meaning a guardian able to make medical decisions for her — who would then enable her to get the abortion. Both the government’s lawyer and the lawyer defending Doe had agreed during arguments Friday that the process to find a sponsor would be lengthy, requiring background checks and house visits that could possibly take months.
But the court ruled Friday that HHS must attempt to find Doe a sponsor by Oct. 31.
Earlier this week, a district court judge ordered the Trump administration to allow Doe to obtain an abortion by Oct. 21, which the administration quickly appealed. The newest order from the court of appeal specifies that if HHS does not approve and release Doe to a sponsor by the end of the month, the district court’s order will be reinstated, and the government would be able to appeal that order again, starting the whole court process over and causing more delays.
The attorneys for Doe argue that she was running out of time; in Texas, it is illegal to obtain an abortion after 20 weeks of pregnancy, and abortions later in pregnancy can pose additional health risks.
Texas law also requires that the doctor who gives the consultation be the doctor performing the abortion. The teenager went to the consultation on Thursday, but her lawyer, Brigitte Amiri of the American Civil Liberties Union, told the court that the doctor who gave the consultation is only available to perform the procedure until Saturday, and that the doctor who will replace him would require yet another 24-hour waiting period and only performs abortions up until 15.6 weeks.
During Friday's hearing, lawyers for the Trump administration skirted around how fully undocumented immigrants are protected by the US Constitution.
Judge Brett Kavanaugh opened the hearing by saying that the court did not want to be “pushed in 24 hours to make a sweeping constitutional ruling,” but would rather “look to resolving the dispute.” Whether or not that will be possible as the case moves forward remains to be seen. This is the second hearing this case has seen in the district, and the third total.
Friday's order did not mention any of the constitutional questions brought up during the hearing.
Kavanaugh, along with Judges Karen Henderson and Patricia Millett, spent most of Friday’s hearing trying to understand the government’s logic in denying Doe the ability to leave the shelter to have an abortion.
Catherine Dorsey, the Department of Justice lawyer, argued that the government is not “blocking” Doe from having the procedure, but that the Trump administration just doesn’t want to be “complicit in facilitating” the minor’s abortion. Dorsey said that in doing so, the government is fulfilling its duty to “act in the best interest” of the minor.
Pressed to take a stance on whether undocumented immigrants have a right to protection under the Constitution, Dorsey said the government “hasn’t taken a position.”
“How could you not take a position on that?” Kavanaugh asked.
Under the Constitution, as established by Roe v. Wade, the government is not permitted to place “undue burden” upon women seeking abortions. The qualification means the government is not allowed to prevent women from obtaining abortions for reasons that are not in the best interest of the woman, while another decision stipulated the government is not allowed to instate penalties on women for choosing to have an abortion.
Amiri argued that the government had already prevented Doe from obtaining an abortion for three weeks, into her second trimester, which was clarified in the 2016 Supreme Court decision Whole Woman’s Health v. Hellerstedt as an “undue burden.” She also argued that telling Doe the way to obtain an abortion was to leave the country is, in essence, penalizing her.
The lawyer also took issue with the government’s argument that it is acting in Doe’s “best interest.”
“The harm caused to [Doe] is irreparable,” she said. “Already they have pushed her into the second trimester … if she is forced to carry to term,” even more of a danger will be imposed to her health, she argued, as childbirth is much more dangerous than abortion.
When Dorsey was asked by the judges whether or not the government considers Doe “a person, subject to due process of law,” Dorsey again responded that the government had not taken a position on this.
“Don’t you take the position that, in other cases, children who come here are persons?” Millett asked, to no response.
The judges also repeatedly asked Dorsey about the other cases in which the government “facilitates” women’s access to abortion, and what the difference between their cases and Doe’s could be. Kavanaugh cited cases where adult women in federal prisons and undocumented women in ICE detention centers are not prevented by the government from getting abortions, and are even transported to their appointments.
In March, the Office of Refugee Resettlement, the wing of HHS charged with helping undocumented, unaccompanied children and newly arrived refugees, enacted a new policy that prohibits all federally funded shelters housing unaccompanied minors from "any action that facilitates" abortion access, including counseling, without "direction and approval" from the director of the ORR.
The ORR is now led by E. Scott Lloyd, a conservative anti–abortion rights lawyer who has written many articles criticizing the procedure. In her argument, Amiri claimed that in one case Lloyd personally visited an undocumented young pregnant woman to talk her out of getting an abortion.
The ACLU is challenging this policy in another case, but in the case heard Friday the organization is asking for an emergency order to allow Doe, and “similarly situated” young women,” to obtain an abortion.