The Trump administration was back in court Wednesday arguing that the government should have the power to stop pregnant, undocumented teenagers in US custody from getting abortions.
A federal judge in late March entered an injunction that prohibits officials from interfering with access to abortion or information about abortion for pregnant teens in immigration detention. The order also blocks the administration from telling anyone, including a parent, about a teen’s pregnancy or decision to terminate the pregnancy against the teen’s wishes.
Arguing before the US Court of Appeals for the DC Circuit on Wednesday, Justice Department attorney August Flentje said that the judge’s order, which also approved the case as a class action covering all pregnant teens in immigration custody, not just those who asked for an abortion or expressed interest, would require government agencies and officials to act “inconsistent with their profound respect for life.”
“This is an unprecedented expansion of abortion jurisprudence,” Flentje argued.
Flentje was grilled by the three-judge panel for nearly an hour and 20 minutes, far beyond the 20 minutes the court said each side would have to argue. Judge Sri Srinivasan led the questioning and pressed Flentje about how, under the government’s preferred policy, the only way a teen could exercise the right to abortion that exists in the United States was to either be released to a sponsor — which might not be possible — or to leave the United States.
Once the teen left the country, Srinivasan said, “the right is gone.”
Flentje argued that the government was allowed to place restrictions on individuals who crossed the border illegally, which meant they couldn’t exercise constitutional rights in the same way as individuals who weren’t in custody. Srinivasan asked if the government could apply that same logic to deny adult women in immigration custody the ability to get an abortion, and Flentje said he thought that was correct. (Immigration and Customs Enforcement has a policy of allowing adult women in its custody to get abortions.)
Flentje argued Wednesday that the government didn’t have a policy of prohibiting teens in custody from getting abortions — it was a case-by-case decision, he said. Judge Robert Wilkins asked if there was any instance where officials had granted an abortion request. Flentje said no.
ACLU lawyer Brigitte Amiri pointed out that the district judge concluded ORR’s practices were almost entirely rooted in an ideological opposition to abortion, which undercut the government’s argument that these were case-by-case determinations.
Separate from the merits of the injunction, the DC Circuit will also consider the government’s arguments that the class certified by the judge is too broad, and that the case is moot because the teens who were originally named as plaintiffs are no longer seeking abortions. Wilkins and Judge Laurence Silberman both suggested they had concerns the case was now moot and expressed concerns that the judge’s decision to include all pregnant teens, and not just those seeking abortion or who expressed interest in abortion, in the class.
The court has a number of options for what kind of order it can fashion. In addition to all-or-nothing opinions in favor of one side, the judges could issue an order, for instance, that the lower court judge narrow the scope of the class, in a way that leaves the injunction in place.
The case has a complicated history in the federal courts. It began with claims filed in October 2017 by a single pregnant teen in US custody, referred to by the pseudonym Jane Doe, who sued in order to obtain an abortion. The trial judge handling the case, US District Judge Tanya Chutkan, entered a temporary restraining order in Jane Doe’s favor, which the government immediately appealed.
The DC Circuit ultimately sided with Jane Doe, and she obtained an abortion before the government was able to petition the US Supreme Court to intervene; Judge Brett Kavanaugh wrote a dissent to that decision, which has become a flashpoint in the fight over his pending nomination to the Supreme Court.
The case nevertheless did go before the justices, who issued an order in June vacating the DC Circuit’s opinion. The Supreme Court’s order didn’t end the case — it just meant that the DC Circuit’s earlier opinion was not binding precedent as the case went forward in the lower courts.
Early on in the case, Jane Doe’s lawyers at the American Civil Liberties Union had asked the judge to certify the case as a class action, and to have the case cover all pregnant teenagers in the custody of the Office of Refugee Resettlement, which manages the care of undocumented minors. The judge didn’t rule on that request for months, and in the meantime, the court fielded more emergency claims filed by the ACLU on behalf of individual pregnant teens.
Wilkins asked Flentje Wednesday if the government could deprive undocumented immigrants of other constitutional rights, such as the right to counsel or a jury trial in criminal cases, by saying that immigrants could leave the country if they didn’t want that kind of trial. Flentje said that would be unconstitutional, and that cases involving abortion access were unique — the Supreme Court made clear that the government didn’t have to commit resources to facilitate abortion, and that principle was “closely linked” to the decision to block undocumented teens from getting access to abortion, he said. The government has argued that allowing teens to get abortions is facilitation, even in cases where the government isn’t paying for the procedure or to transport the teen.
Flentje also argued that Chutkan’s order made it impossible for the government to have any policy about how to handle teens seeking abortions, including setting guidelines for how much time the government could have to try to find a sponsor. Srinivasan and Wilkins questioned whether it was the appeals court’s role to step in and say what an acceptable time frame would be.
Srinivasan asked if the government could make a teen who asked for an abortion early in her pregnancy wait longer than a teen who was getting close to the time when an abortion wouldn’t be possible. Flentje said those were factors that would be considered.
On the class issue, Wilkins pressed Amiri on how a teen who wanted to carry her pregnancy to term had been injured by the government’s policies, which seemed aimed at teens who asked for an abortion or expressed interest. Amiri said that the government had restricted teens from getting “neutral” information about pregnancy options, and that narrowing the class would unfairly place the burden on teens — who may not speak English or be aware of their options — to make an affirmative decision in order to get the court’s protections.
There was also a potential issue for all pregnant teens with respect to a parent being notified about their pregnancy against their wishes, Amiri said, although she acknowledged they didn’t have concrete information about how that was being handled because they hadn’t gotten to the phase of the case where they’d be entitled to evidence from the government.
On whether the case was moot, Amiri argued that the unknowns in these types of cases — including how long a teen would be in custody and when she could no longer get an abortion — meant the case was “transitory” and that the court should keep the case live even if the claims no longer applied to the original plaintiffs. She also argued that voluntary departure wasn’t a cure-all, saying that it could still take several weeks or even months for a minor to be removed from the United States.
Amiri said that since the March 30 order, the ACLU was anecdotally aware of at least 12 pregnant teens in immigration detention who had asked for an abortion or expressed interest in an abortion or initiating state proceedings to bypass parental consent laws. There continued to be minors in custody who would be harmed if the judge’s injunction were lifted, she said.
“This is a blanket ban on abortion for anyone while they’re in government custody,” she said.