The Trump Administration Can’t Block Undocumented Teens From Getting Abortions, A Federal Appeals Court Ruled

“We cannot accept the suggestion that minors in ORR custody should be compelled to carry pregnancies to term against their wishes ... so that others will be deterred from desiring to come here.”

WASHINGTON — The Trump administration cannot block pregnant, undocumented teenagers held in government custody from getting abortions, a federal appeals court ruled Friday.

In an 81-page opinion, the court concluded that it was “rejecting the government’s position that its denial of abortion access can be squared with Supreme Court precedent.”

“The Supreme Court ‘has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose,’” the judges wrote, quoting earlier decisions. “And we are not free to dilute a constitutional right recognized by controlling Supreme Court precedent — a right the government affirmatively assumes unaccompanied minors here have — so that others will be dissuaded from seeking a better life in this country.”

The ruling, which comes nearly nine months after it was argued before the US Court of Appeals for the DC Circuit, potentially reopens the legal fight over the power of the Trump administration to limit abortion access to immigrant teenagers in its care — the government could ask the full DC Circuit to reconsider Friday’s decision, or ask the US Supreme Court to weigh in.

A Justice Department spokesperson declined to comment. ACLU attorney Brigitte Amiri, who has served as the lead attorney for the immigrant teenagers at every stage of the litigation, said in a statement that they were “relieved.”

“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion was a blatant abuse of power,” Amiri said. “We are relieved that today’s ruling continues to prevent the policy from taking effect while the case proceeds, and allows the case to proceed as a class action as we continue this fight.”

Starting in 2017, the Trump administration instituted a policy that prohibited undocumented, unaccompanied minors from obtaining abortions while in US custody. The Office of Refugee Resettlement, an arm of the Department of Health and Human Services, manages care for unaccompanied immigrant children and teenagers. Adult immigrants being held by immigration authorities are allowed to have the procedure.

According to court filings, in fiscal year 2017 — the most recent data available — 18 pregnant teenagers being held by ORR asked for an abortion.

The case began in October 2017, when a pregnant teen in US custody, referred to as Jane Doe, sued in order to obtain an abortion. US District Judge Tanya Chutkan ultimately entered a preliminary injunction prohibiting the government from blocking abortion access for teens like Jane Doe. The case went up to the Supreme Court last year, and although the justices vacated an earlier DC Circuit opinion that sided with Jane Doe, they didn’t issue a binding opinion about the merits of the legal fight. Other teens filed individual claims until the judge entered an order approving the case as a class action.

In Friday’s opinion, the judges concluded that the Trump administration’s policy amounted to a complete ban that violated US Supreme Court precedent by imposing an “undue burden” on a woman’s right to choose to have an abortion. The court noted that the ban applied even if the teenager met the requirements for an abortion under state law where they were being held and secured their own funding and transportation; it also applied if the teenager had been raped.

The Justice Department agreed in the case that the overarching principle that women have a constitutional right to choose an abortion applied to the immigrant teenagers in its care. But the Trump administration argued these minors weren’t being completely blocked from getting the procedure — if they agreed to leave the country, they could get the abortion in their home country, the government said.

The court found that the government’s argument was “misguided.” The Supreme Court in the past hadn’t upheld state abortion laws on the grounds that women could just travel to another state, so that logic wasn’t persuasive, the judges wrote. And an undocumented immigrant’s ability to voluntarily leave the United States depended on getting the government’s approval — they weren’t free to go at any time, and they had to give up other rights, such as the ability to seek asylum, the judges noted; a teenager’s home country also might not allow abortions.

“A state could not ban abortions outright on the theory that pregnant women can just go elsewhere. And the federal government has no greater leeway to ban abortions on the theory that pregnant women can go elsewhere via voluntary departure,” the judges wrote.

The government argued that minors placed with a sponsor would have the option of obtaining an abortion, but the judges wrote that there was no guarantee that would happen or how long the placement process would take.

The government also argued it was being forced to “facilitate” abortions, which it wasn’t required to do. But the court found that ORR was denying abortion access even when the young women used other sources of funding to pay for the procedure and secured their own transportation. The fact that ORR had to give shelters direction about how to handle these situations did not reach the level of government involvement that would allow them to stop teenagers from getting the procedure altogether, the court held.

The court noted that the government, “as a last resort,” argued that striking down the ban would encourage “abortion tourism” for teenagers who can’t obtain the procedure in their home country. The judges wrote that minors attempted to travel to the United States for many reasons, and it was unlikely the US government would argue, for instance, that they couldn’t practice a religion of their choice because it was banned in their home country.

“And correspondingly, we cannot accept the suggestion that minors in ORR custody should be compelled to carry pregnancies to term against their wishes — even in cases of rape — so that others will be deterred from desiring to come here,” the judges wrote.

The court disagreed with the government that the case was moot because the original group of teenagers who sued and represented the class had received abortions. The case fell under an exception for “inherently transitory” legal issues — claims that could end quickly — given the fact that women can only obtain abortions up until a certain point in their pregnancy, and even those timelines vary by state.

The court also found that the lower court judge was correct to certify the case as a class action, as opposed to requiring individual lawsuits each time a problem with access arose.

The court did not resolve whether the lower court judge could prohibit the government from telling a pregnant teenager’s parents or other individuals about their pregnancy and abortion. The judges instead sent it back to the district court to add more information to the record before the appeals court could weigh in.

The court issued Friday’s opinion “per curiam,” which means no single judge was listed as the author. Two judges, Sri Srinivasan and Robert Wilkins, joined the full majority opinion that largely rejected the administration’s arguments. Judge Laurence Silberman also sat on the panel — the opinion noted that he agreed the administration could not block teens from accessing abortions altogether, but he wrote a dissenting opinion that broke with his colleagues on a number of other issues.

Silberman wrote that he disagreed with certifying a class in the case, and would have also found the case moot. Finally, Silberman wrote that he would give the government more leeway to try to find sponsors first, which would delay when pregnant immigrant teenagers in its care could obtain abortions. He added, however, that “in no event could the process come close to viability.”

“I am afraid the majority’s refusal to consider narrowing the scope of the district court’s order justifies Judge Kavanaugh’s accusation that the court is endorsing abortion on demand — at least as far as the federal Government is concerned,” Silberman wrote.

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