A federal judge on Wednesday ordered the Trump administration to allow a pregnant, undocumented teenager to obtain an abortion.
The government, the judge wrote, must "promptly and without delay" allow the 17-year-old to be transported to an abortion provider closest to the shelter where she is being held. The judge wrote that federal officials are "restrained from interfering with or obstructing [the teen's] access to abortion counseling or an abortion."
The pregnant teenager, who is being held in a federally funded shelter in South Texas, has been fighting to obtain an abortion since she was apprehended at the US–Mexico border on Sept. 11. Trump administration officials had blocked the shelter from permitting her to travel to a provider, according to court filings.
At arguments earlier on Wednesday, US District Judge Tanya Chutkan appeared likely to order that the government must allow the young woman, referred to in court papers as “Jane Doe,” to get an abortion. The judge was incredulous as she questioned the lawyer for the government, at one point saying she was “astounded” at the government’s apparent position that the teen’s only options were to either carry the pregnancy to term or go back to her home country.
“Just because she’s here illegally doesn’t mean she doesn’t have constitutional rights,” Chutkan said.
Chutkan's order is limited to Jane Doe's case and will expire after 14 days. The judge wrote that Jane Doe must be allowed to obtain the pre-procedure counseling required by Texas law on Oct. 19, and then to have the procedure done on either Oct. 20 or 21. According to the judge's order, federal officials are barred from forcing Jane Doe to reveal her decision to anyone else or from retaliating against her or the contractor that runs the shelter.
Now 15 weeks pregnant, her attorneys had argued that Doe 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. State laws in Texas also mandate two trips to obtain an abortion, with a waiting period in between, as well as an ultrasound before a woman can get the procedure.
Chutkan also ordered that if transporting Jane Doe to the nearest abortion provider requires going past a border patrol checkpoint, federal officials are "restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so." The judge's order largely tracked with the language proposed by Doe's lawyers, but she added in bold the phrase "promptly and without delay."
A Justice Department spokesperson did not immediately return a request for comment. The government is appealing the decision, and late Wednesday Justice Department lawyers filed an emergency motion asking the US Court of Appeals for the DC Circuit to delay Chutkan's order from taking effect.
Brigitte Amiri, the American Civil Liberties Union lawyer who argued for Jane Doe, said in a statement that Doe's "courage and perseverance are incredible, but no one should have to go to court to get a safe, legal abortion. And no one should be held hostage to the extreme anti-abortion views of a handful of government officials.”
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.
Chutkan noted during Wednesday's hearing that despite the government’s contention that allowing the teenager to leave the shelter would pose a burden on the government, officials allowed her to be taken to a counseling session at what the ACLU described in court papers as a religious “crisis pregnancy center” aimed at dissuading her from the abortion.
“The government certainly had no problem taking her against her will to receive pregnancy counseling,” Chutkan said during the hearing earlier Wednesday.
Doe is one of thousands of unaccompanied minors who have crossed the border illegally. The ACLU, citing information about similar cases obtained through Freedom of Information Act requests, alleges she is not the first to be prevented from obtaining an abortion.
The ACLU had sought an immediate order from the court to allow Doe to get the procedure, as well as a broader injunction that would apply to other young women in a similar situation. The judge granted the temporary restraining order for Doe, but has not ruled yet on the more far-reaching injunction request.
The ACLU argues that Doe is not alone. In 2015, the government reported that 33,726 unaccompanied, immigrant minors were referred to the ORR. Border Patrol agents detained 3,000 children in August alone. The ACLU says in the Doe lawsuit that many of these minors are young women and a high number were sexually assaulted right before or during their journey to the US.
US Department of Justice lawyer Scott Stewart argued before the court Wednesday that Doe is in the United States illegally and disputed that she was entitled to have an abortion. Chutkan asked Stewart if he would agree that Doe still had constitutional rights. When Stewart pushed back, saying he wasn’t going to make a concession on that, Chutkan shook her head and laughed.
“That is remarkable,” the judge said.
Stewart argued that Doe has other options for obtaining an abortion — she can leave the United States, or she can seek to be released into the custody of a US sponsor. To date, Doe hasn’t been able to find a sponsor but is still looking, according to her lawyers.
In March, the Office of Refugee Resettlement, the wing of the Department of Health and Human Services 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 lawyer who has written many articles criticizing the procedure. In its lawsuit, the ACLU references a case in which Lloyd personally visited a young, undocumented, pregnant woman to talk her out of getting an abortion.
Last month, HHS also released a draft “strategic plan” for the next four years, which stated that the agency’s mission was to serve and protect “America at every stage of life, beginning at conception,” a major shift from the agency’s language under the Obama administration.
The teenager’s lawyers previously tried to challenge the government's decision in an existing case in federal court in San Francisco over detention conditions. At an emergency hearing in that case last week, a judge concluded that the government cannot block the young woman from getting an abortion, but would not force the government to allow her to leave the facility in order to get the procedure, saying that her lawyers had filed the challenge in the wrong court. The ACLU then filed the new lawsuit in the US District Court for the District of Columbia.
Amiri previously said staff at the child immigrant facility refused to take her to a doctor or let her "walk out the door and get into a car with her attorney or guardian to go to her appointments."
The teenager has already had to cancel two appointments because of what her advocates say are unconstitutional measures taken by state and US officials to prevent her from having an abortion.
"It's insane," Amiri said, arguing that the federal government is essentially “holding her hostage.”
“I feel like they are trying to coerce me to carry my pregnancy to term,” Doe said in a declaration filed in federal court.
ORR told BuzzFeed News in a statement prior to Wednesday's ruling that it was acting according to protocol and “providing excellent care to the adolescent girl and her unborn child, who remain under our care until the mother’s release.”
When an undocumented minor is placed in ORR’s custody, ORR said, its “paramount concern ... is to provide food, shelter and care to her under federal statute.”
"There is no constitutional right for a pregnant minor to illegally cross the U.S. border and get an elective abortion while in federal custody," the agency said after the hearing. "Federal law is very clear on giving the director of the Office of Refugee Resettlement the legal responsibility to care for the health and well-being of a minor in the unaccompanied alien children program and, in this case, her unborn baby. We cannot cede our responsibility to care for minors and their babies by releasing them to ideological advocacy groups."
Texas Attorney General Ken Paxton also jumped in to defend the shelter's actions. He, along with the attorneys general of six other states, argued in a brief that enabling Doe to have the procedure would give undocumented immigrants unfettered constitutional rights, which "would have "far-reaching and dire consequences."
Anti-abortion groups like Susan B. Anthony List also defended HHS’s decision not to enable the teenager to get an abortion, saying that any other decision would turn Texas into a “sanctuary state for abortion.”
“This lawsuit is a nothing more than a ploy by the ACLU to turn the Lone Star State — one of the most pro-life states in the country — into a sanctuary state for abortion,” SBA List President Marjorie Dannenfelser said in a statement Friday. “This young girl deserves compassion and quality health care. Abortion is not health care.”