The Trump administration is once again in a legal battle over an undocumented minor’s desire to get an abortion — but this time, the court says it isn’t clear whether the 14-year-old wants the procedure. Finding that lawyers for the Trump administration and lawyers for the young woman presented “conflicting narratives,” a federal appeals court has ordered her to come before a judge and say what she wants to do.
The ruling on Thursday from the US Court of Appeals for the 5th Circuit comes in the midst of a months-long legal fight over the Trump administration’s efforts to stop undocumented, pregnant young women in US custody from obtaining abortions.
Since October, four other undocumented teenagers have joined a separate, high-profile case against the Trump administration brought by the American Civil Liberties Union, accusing the Office of Refugee Resettlement (ORR) of unlawfully blocking the teenagers from obtaining abortions. Since than, all of the young women in that case have been able to obtain abortions, either through court orders or other means.
The teenager whose pregnancy is at issue in this latest case, referred to as Jane Doe, was six weeks pregnant as of mid-January, according to court papers. The 5th Circuit’s opinion did not indicate exactly how far along she is now, but she is being held in Texas, where it is illegal to get an abortion after 20 weeks.
Jane Doe originally told lawyers she wanted an abortion, according to the court, but ORR later presented handwritten notes from Jane Doe saying she changed her mind and no longer wanted the procedure. When Jane Doe’s lawyers attempted to meet with her, the government refused them access.
Much of the case has been under seal, but the Justice Department provided BuzzFeed News with a copy of one of the government’s filings from proceedings in the US District Court for the Southern District of Texas. The filing, which was first reported by Fox News and distributed by the anti-abortion advocacy group Susan B. Anthony List, stated that Doe did not want the abortion, per her handwritten statements. The Justice Department also said Doe had indicated she was “made” to sign a form agreeing to representation by certain attorneys, and no longer wanted them to represent her.
Jane Doe’s case led to disagreement among the 5th Circuit judges about the intentions of the lawyers representing her. Judge Edith Jones wrote that Doe’s lawyers were pursuing a pro-abortion agenda, and weren’t “truly neutral” as guardians for her. The other judges in the case called Jones’ accusations against Doe’s lawyers “needless judicial spin.”
The three-judge 5th Circuit panel concluded that the best course of action was to have the teen come before a judge and speak for herself. If she wanted to carry the pregnancy to term, that would end the case. If she did want the abortion, however, the 5th Circuit ordered the lower court judge to “instruct the government to cooperate” with Jane Doe’s current lawyers or with another guardian the judge wanted to appoint instead.
The Justice Department declined a request for comment, and ORR, which is a part of the Department of Health and Human Services, did not immediately respond.
If Jane Doe does want the abortion, the 5th Circuit’s ruling may not be the end of the legal wrangling. The Justice Department could still try to challenge an order that ORR allow Jane Doe to receive an abortion. In other cases involving pregnant, undocumented teens seeking abortions in recent months, the Justice Department has attempted to appeal such orders, but the young women at issue so far have either been released from US custody or obtained abortions.
While the ACLU is not yet directly involved in Jane Doe’s case in Texas, the lead ACLU lawyer in the case on behalf of the other teenagers, Brigitte Amiri, told BuzzFeed News that if Doe does want an abortion, the ACLU “will consider all avenues to make sure she can effectuate her decision.” The ACLU’s case in the US District Court for the District of Columbia is pending.
Amiri added that she found it “deeply troubling” that the ORR prevented the attorneys from meeting with Doe. “This raises concern about how far the ORR is going in circumstances where a minor is considering an abortion.”
A deposition and series of emails between ORR director Scott Lloyd, his direct reports, and staff at government-funded shelters for undocumented minors released by the ACLU Wednesday show that in March 2017, Lloyd instructed shelter staff in an email that a minor requesting an abortion “should not be meeting with an attorney regarding her termination or otherwise pursuing a judicial bypass” to obtain an abortion without the consent of her guardian. In the deposition, Lloyd denied that he was blocking access to attorneys, and instead suggested that he was preventing undocumented minors from having “unnecessary meetings with attorneys.”
According to the 5th Circuit, Jane Doe expressed a desire to get an abortion in late January. She was referred to a nonprofit that connected her with Myles Garza and Rochelle Garza, who practice at the firm Garza & Garza Law LLC.
Based on Jane Doe’s representations that she wanted an abortion, the Garzas went to a Texas state court to ask for a judicial bypass, a process that allows minors in the state who are pregnant to obtain abortions without parental consent. The court scheduled a hearing for Feb. 8, but ORR did not bring Jane Doe to the hearing. ORR presented the handwritten notes from Jane Doe saying that she no longer wanted an abortion.
The Garzas tried to meet with Jane Doe, but ORR refused access, according to court papers. At the same time, the state court certified Rochelle Garza as Jane Doe’s guardian ad litem, which would require ORR to give Garza access to Jane Doe as well as to records about her. The Garzas did not immediately respond to BuzzFeed News' request for comment.
The Justice Department then attempted to move the case from state court to the US District Court for the Southern District of Texas. The federal district judge in Texas denied that request, and ordered the case sent back to state court. The Justice Department then took the case to the 5th Circuit.
Thursday’s opinion revealed infighting among the three judges who considered the case — Patrick Higginbotham, Edith Jones, and Gregg Costa. Jones wrote a separate opinion agreeing with the decision to have Jane Doe appear before a judge, but disagreeing that the Garzas should be allowed to continue representing Jane Doe if she did want an abortion.
Jones accused the other judges of “arbitrarily” restricting ORR’s legal responsibility and encouraging “third parties with an avowed advocacy agenda to usurp decisions that federal law commits to ORR as legal custodian.” She noted that Rochelle Garza was a plaintiff in the ACLU litigation in DC over the abortion rights of undocumented minors.
“The Garzas have demonstrated by word and deed that their goal is to foster abortions. Were it not so, they would not have objected to the appointment of a truly neutral guardian. The record offers no assurance that the Garzas can fulfill the neutral role that Supreme Court and Texas law envision with respect to Doe’s best interests. They should be displaced,” Jones wrote.
Jones wrote that in the fight over the Trump administration’s ability to block undocumented young women from getting an abortion — she described it as a “war for its statutory responsibility” — the government would need to confront the question of where a constitutional right to an abortion existed for undocumented, unaccompanied minors.
Jones’ dissent spurred a response from the other judges on the panel, who referred to Jones’ writings as “needless judicial spin.” The main opinion was issued per curiam, which means it reflected, at a minimum, the majority of the three-judge panel, but without one judge taking credit for writing it.
Higginbotham and Costa came to the Garzas’ defense, writing that Jones had characterized the Garzas as “wading through a sea of pregnant unaccompanied alien minors with a net,” ignoring statements that the Garzas submitted “as officers of the court subject to its rules of candor” about how a nonprofit had referred Jane Doe to them.
The judges also criticized Jones for delving into the constitutional question, which wasn’t briefed or argued in Jane Doe’s case. The judges did note that the US Court of Appeals for the DC Circuit had previously found that the US Supreme Court recognized that undocumented immigrants have due process rights.
“There are no battles or wars here, only straight-forward fact issues. The resolution of this case, as framed by counsel, does not present constitutional questions,” the judges wrote.