By Dave Andrusko
Editor’s note. This is, as they say, a developing story that might be updated as the day progresses.
This morning a three-judge panel of the DC Court of Appeals heard oral arguments in the case of a pregnant undocumented 17 year old from Mexico whom the ACLU says should be allowed to leave federal custody to have an abortion.
On Wednesday, U.S. District Judge Tanya S. Chutkan, an Obama nominee, ordered the government to allow the teenager known as “Jane Doe” to proceed to have an abortion. The government appealed and on Thursday the DC Court of Appeals stayed the ruling in order to hear oral arguments on the merits of the case.
Scheduled for 30 minutes, oral arguments went on for 90 minutes as Judges Karen LeCraft Henderson, Brett M. Kavanaugh, and Patricia A. Millett asked a series of questions of both sides. For only the second time, the Court of Appeals for the District of Columbia allowed the arguments to be livestreamed.
In addition to the life of this one unborn child, it is critically important to realize, as the ACLU told the Los Angeles Times, “there are hundreds of pregnant unaccompanied minors in federal custody, all potential Jane Does.” Many-to-most of those girls are likely in Texas. So when Texas Attorney General Ken Paxton said, “Texas must not become a sanctuary state for abortions,” he was not overstating the situation.
As the Washington Post wrote, when it appealed Judge Chutkan’s decision, the Trump Administration said “it is not obligated to facilitate an abortion in part because the U.S. government has an interest in ‘promoting child birth and fetal life.’ Lawyers for the government say they are not denying the teenager the right to abortion guaranteed by the 1973 Supreme Court ruling Roe v. Wade, because the girl could voluntarily leave the United States and try to seek an abortion elsewhere or find a sponsor to live with in this country.” [In a statement, the White House said, “The Administration stands ready to expedite her return to her home country.”]
In oral arguments this morning, the ACLU said they were having trouble finding a sponsor quickly and, according to Chuck Lindell, writing for the [Texas] Statesman,
“They [governmental officials] are supplanting their decision about what JD should do with her pregnancy, and that is not acting in her best interest,” said Brigitte Amiri, a lawyer with the American Civil Liberties Union.
“Really, what we are talking about is a ban on abortion for JD, which the court has said you cannot — no matter how much of an interest the government has in potential life — you cannot act on that interest to ban abortion for anyone,” she said.
Amiri was channeling Judge Chutkan conclusion that Jane Doe’s legal status was “irrelevant” and that “despite the fact that she’s in this country illegally, she still has constitutional rights.”
The government responded, Lindell reported,
The government’s interest in promoting childbirth over abortion allows federal officials to avoid any actions that would allow a 17-year-old immigrant, in federal custody in Texas after crossing the Mexico border illegally, to have an abortion, Trump administration lawyers told a federal appeals court Friday.
“The government is refusing to facilitate an abortion, which it permitted to do,” Catherine Dorsey, a lawyer for the Department of Justice, told a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia.
The girl is approximately 15 weeks pregnant. The appeals court judges “promised to rule quickly on whether Doe can have an abortion while in government custody.” They had allowed Jane Doe to undergo counseling on Thursday, which is required under Texas law.
As NRL News Today reported Wednesday, the Administration for Children and Families at HHS defended its care of the teenager and its decision.
“There is no constitutional right for a pregnant minor to illegally cross the US border and get an elective abortion while in federal custody,” it said in a statement.
“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,” the statement continued. “We cannot cede our responsibility to care for minors and their babies by releasing them to ideological advocacy groups.”
Last Friday, the ACLU filed a class action lawsuit against the U.S. Department of Health and Human Services and the heads of two divisions within the department: the Administration for Children and Families and the Office of Refugee Resettlement.
As NRL News Today reported, the Attorneys General of Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma and South Carolina joined Texas in an amicus brief filed by Texas Attorney General Ken Paxton in response to the ACLU, defending “the federal government’s refusal to comply with an unlawfully-present minor alien’s request to have an abortion in Texas,” according to a news release sent out by Paxton’s office.
“An unlawfully-present alien with no substantial ties to this country has no constitutional right to abortion on demand,” Paxton said. “Texas has a legitimate and substantial interest in preserving and promoting fetal life. Texas must not become a sanctuary state for abortions.”
Jane Doe is currently in the custody of the Office of Refugee Resettlement (ORR), a federal office responsible for refugees and unaccompanied undocumented minors, in Brownsville, Texas.
The ACLU is trying to piggyback the case to a current lawsuit it has against the federal government “for allegedly allowing some religiously affiliated shelters to impose their religion on minors by prohibiting their access to abortion,” the Texas Tribune reported.