A federal district judge on Monday ruled — for the second time this year — that the Trump administration cannot block pregnant, undocumented teens in US custody from having abortions.
US District Judge Tanya Chutkan ordered the federal government to allow two undocumented teens, referred to in filings as Jane Roe and Jane Poe, to have abortions. However, the judge put her ruling on hold for 24 hours to give the government an opportunity to appeal.
By Monday night, the Justice Department had done so — asking both the US Court of Appeals for the DC Circuit and the Supreme Court to put Chutkan's order on hold with respect to Jane Roe. The DC Circuit late Monday agreed to do so until the evening of Dec. 20 to give the court time to consider the Justice Department's challenge.
According to court papers, Jane Roe learned that she was pregnant on Nov. 21, and is now approximately 10 weeks pregnant. The other young woman, Jane Poe, is in her second trimester and approaching a point in her pregnancy when she can longer get an abortion in the state where she is held. Neither side has identified where the two young women are, but the government did confirm on Monday that they're not in Texas.
Chutkan wrote that the teens were likely to succeed on their claims that the government was violating their constitutional rights. Absent immediate intervention by the court, the judge said, the young women "will both suffer irreparable injury in the form of, at a minimum, increased risk to their health, and perhaps the permanent inability to obtain a desired abortion to which they are legally entitled."
The Department of Health and Human Services' Administration for Children and Families released a statement saying officials were "deeply disappointed" in Chutkan's order.
"A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor. HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions," the office said.
The Justice Department filed notice that it is appealing Chutkan's order shortly after it was published. During the first round of litigation this fall over the Trump administration's ability to stop undocumented teens from getting abortions, the Justice Department planned to petition the US Supreme Court after losing in the US Court of Appeals for the DC Circuit, according to its court papers. But the teen at the center of that fight, known as Jane Doe, had the abortion before DOJ submitted papers to the high court.
If Chutkan's order is ultimately upheld, it would require the federal government to allow the young women to be transported to a facility to have an abortion and block federal officials from retaliating against the teens or from forcing them to reveal their pregnancies to anyone.
Chutkan heard arguments Monday morning on the American Civil Liberties Union's request for a temporary restraining order that would force the Trump administration to allow the teens to get abortions if they chose to do so.
When the case was originally filed in October on behalf of Jane Doe, Chutkan had been incredulous at the government's arguments. “Just because she’s here illegally doesn’t mean she doesn’t have constitutional rights,” Chutkan said at an Oct. 24 hearing.
Chutkan ruled that month that the Trump administration couldn't stop Jane Doe from getting an abortion, and the full sitting of the US Court of Appeals for the DC Circuit reinstated Chutkan's order after a divided three-judge appeals panel sided with the government. Jane Doe obtained the abortion on Oct. 25.
The ACLU had filed the lawsuit as a potential class action, but the judge hasn't ruled yet on the request to certify it as such. In the meantime, the ACLU added Jane Roe and Jane Poe individually to the case.
On Monday, the judge again expressed frustration with the government's position that it had the authority to prevent Jane Poe and Jane Roe from getting abortions. Justice Department attorney August Flentje told the judge that the Office of Refugee Resettlement, which is managing the teens' detention, reached a decision late Sunday night that it was not in Jane Poe's "best interest" to allow her to have an abortion. Chutkan asked how that finding could overcome Jane Poe's constitutional rights and how the office could have more rights than a parent would in this type of situation.
Flentje replied that the government wasn't arguing to entirely get rid of Jane Poe's constitutional rights, but maintained that the resettlement office had the power to decide what would be in the teen's best interest.
Flentje said Jane Poe struggled with the decision to have the abortion, characterizing it as a "difficult situation." Chutkan replied that it would be "cavalier" not to recognize that every decision to end a pregnancy was a difficult one, but that should not negate a woman's decision to do so.
The Trump administration's position has been that the teens do have options for getting an abortion — they can leave the United States, or find a sponsor to take custody. According to the Justice Department's filings, the government had identified a potential sponsor for Jane Roe, and estimated that vetting could take about two weeks. Chutkan expressed skepticism at giving the government a two-week window to figure out the sponsorship situation for Jane Roe; she noted that the government previously didn't meet its estimated timeline for finding a sponsor for Jane Doe.
ACLU lawyer Brigitte Amiri told Chutkan on Monday that staff at the shelters where the teens are being held had said that they were not allowed to communicate with the ACLU without going through the Justice Department. When Chutkan asked Flentje about this, he replied that he was looking into it. Shelter staff had been told that ACLU requests to contact clients should not go through DOJ, he said, but that DOJ did want to be involved in any case-related communications between shelter staff and the teens' attorneys.
Updated with information about the Justice Department's notice of appeal.
Updated with information about the Justice Department's requests for stays from appellate courts.
Updated with information about the DC Circuit order temporarily staying the case.