A federal appeals court in Washington, DC, on Tuesday ruled that an undocumented 17-year-old can get an abortion, over the objections of Trump administration officials.
A majority of the active judges on the US Court of Appeals for the DC Circuit reinstated a lower court judge’s order from last week requiring the government to allow the teen to leave a federally funded shelter in Texas where she’s been held since crossing the US–Mexico border last month.
The court vacated an order issued Friday by a divided three-judge DC Circuit panel that would have delayed the abortion. If the Justice Department wants to challenge the new order from the full DC Circuit, the next step would be to petition the US Supreme Court. A DOJ spokesperson said in an email that they are reviewing the order and had no other comment.
The teenager, represented by the American Civil Liberties Union and referred to in court papers as “Jane Doe,” is approximately 15 weeks pregnant.
“Every step of the way, the Trump administration has shown their true colors in this case. It’s clear that their anti-woman, anti-abortion, anti-immigration agenda is unchecked by basic decency or even the bounds of the law,” Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, said in a statement. “No one should have to go to court to get a safe, legal abortion.”
US District Judge Tanya Chutkan on Oct. 18 ordered the Trump administration to allow Jane Doe to get the abortion. The judge had been incredulous at a hearing earlier in the day, at one point saying she was "astounded" by the government's argument that the teen's only options were to leave the United States or carry the pregnancy to term.
“Just because she’s here illegally doesn’t mean she doesn’t have constitutional rights,” Chutkan said at the time.
The US Department of Justice immediately challenged Chutkan's order, and a three-judge panel of the DC Circuit heard arguments two days later, on Oct. 20. The appeals court issued an order several hours later that delayed the abortion. In a 2–1 order, the court gave the Department of Health and Human Services until Oct. 30 to try to find a sponsor who could take custody of Jane Doe, at which point she would be free to get the abortion.
DC Circuit judges Brett Kavanaugh and Karen LeCraft Henderson voted for the delay order. Judge Patricia Millett dissented, writing, "The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.”
On Oct. 22, the ACLU filed an emergency motion asking all of the court's active judges to reconsider the panel's decision, known as a rehearing "en banc." A coalition of Democratic state attorneys general filed a brief backing the ACLU's stance.
The court moved quickly on the ACLU's request, giving the government until the morning of Oct. 23 to file a response. The Justice Department filed papers opposing immediate intervention by the full court.
"Even if, in this particular case, facilitation does not require the government to pay for and transport Ms. Doe for an abortion, that does not alter the analysis; her argument would nevertheless require the federal government to be complicit in her abortion, which the government has a significant and legitimate interest in refusing to do," the government's lawyers wrote.
A majority of the nine active judges on the DC Circuit who considered the case voted to reinstate Chutkan's Oct. 18 decision, according to Tuesday’s order. Three judges dissented: Kavanaugh, Henderson, and Judge Thomas Griffith.
DC Circuit Judge Nina Pillard did not participate in the case. Her husband, David Cole, is the national legal director for the ACLU.
The majority of the court did not issue an opinion as a whole, but indicated in the order that they were voting "substantially for the reasons" outlined in Millett's dissenting opinion from Friday. Millett wrote in a new opinion on Tuesday that the government had "bulldozed over constitutional lines."
"It is unclear why undocumented status should change everything. Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby," Millett wrote. "The bedrock protections of the Fifth Amendment’s Due Process Clause cannot be that shallow."
Henderson and Kavanaugh each wrote their own dissenting opinions. Henderson wrote that she would find that Jane Doe, as an undocumented immigrant in custody, did not have a constitutional right to an elective abortion.
Kavanaugh wrote that the majority’s decision was “based on a constitutional principle as novel as it is wrong” — that undocumented immigrant minors in government custody have a right to an immediate abortion, before the government can place them with a sponsor to help them consider their decision. According to Jane Doe’s lawyers at a hearing last week, efforts to find a sponsor had been unsuccessful so far.
“The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision,” Kavanaugh wrote. “Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision?”
There is one vacancy on the DC Circuit. President Donald Trump's nominee for the seat, White House lawyer Greg Katsas, had his confirmation hearing before the Senate Judiciary Committee last week.
Ema O’Connor contributed to this report. This story is developing. Check back for updates.