By Dave Andrusko
The 17-year-old undocumented teenager, the center of a month-long legal battle, aborted her 16 week-old baby this morning, according to a tweet from the ACLU.
Her abortion came a day after the full D.C. Circuit Court of Appeals overturned a prior decision by a three-judge panel of the same court that had given the federal government until October 31 to find a sponsor for “Jane Doe.”
The effect of the D.C. Circuit’s 6-3 ruling was to send the case back to U.S. District Judge Tanya Chutkan. Within hours, Judge Chutkan ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.
Ken Paxton, the Texas attorney general who had led a group of attorneys general from Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma and South Carolina in filing an amicus brief supporting the government’s position, said, “Today’s loss of innocent human life is tragic.”
“This ruling not only cost a life, it could pave the way for anyone outside the United States to unlawfully enter and obtain an abortion. Life and the Constitution are sacred. We lost some of both today.”
Jane Doe’s case is the wedge the ACLU is trying to use to overturn the government’s policy under President Trump on undocumented pregnant teens.
(The ACLU previously 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 Attorney General Paxton said, “Texas must not become a sanctuary state for abortions,” he was not overstating the situation.)
This was confirmed in the Texas Tribune story that ran today:
Obtaining an abortion is a victory for Doe and her attorneys, but they say the fight isn’t over yet. The court order Tuesday was on an emergency motion to allow Doe to get an abortion before she runs out of time under Texas’ 20-week ban. But it does not change the federal policy that blocked Doe’s procedure. A pending class-action lawsuit, with Doe as the lead plaintiff, challenges the broader policy, said Susan Hays, the legal director and cofounder of Jane’s Due Process, a state nonprofit that helped Doe secure her court order last month. That litigation was on hold as Doe’s advocates focused on getting her an abortion before it was too late.
The “broader policy” began as of this March when the Office of Refugee Resettlement (ORR), a federal office responsible for refugees and unaccompanied undocumented minors, was ordered not to “facilitate” abortion in any way without express permission.
Two of the three dissenters in the 6-3 decision questioned virtually every aspect of the justifications offered by the majority.
For example, Judge Karen Henderson began by asking
Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion? …. [A]t least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country. …
J.D. [“Jane Doe”] is not a U.S. citizen. She is not a permanent resident, legal or otherwise. According to the record, she has no connection to the United States, let alone “substantial” connections. Despite her physical presence in the United States, J.D. has never entered the United States as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders. Accordingly, under a correct interpretation of the law, J.D. has virtually no likelihood of success on the merits and the TRO issued by the district court should remain stayed.
After systemically explaining where and how the majority’s decision went awry, Judge Henderson concluded.
Far from faithfully applying the Supreme Court’s abortion cases, this result contradicts them, along with a host of immigration and due-process cases the Court declines even to acknowledge.
Garza v. Hargan today takes its place in the pantheon of abortion-exceptionalism cases.
Judge Brett Kavanaugh observed
The en banc majority has badly erred in this case. The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.
The dissenter among the three-judge panel, Judge Patricia Millett, focused on the need for an “expeditious” decision and questioned whether it was possible to find a sponsor by October 31. But Judge Kavanaugh wrote
a declaration we just received from the Government states: “while difficult, it is possible to complete a sponsorship process for J.D. by 5 P.M. Eastern on October 31, 2017.” The declaration also lists several ongoing efforts regarding the sponsorship process. The declaration adds that all components of the U.S. Government “are willing to assist in helping expedite the process.”
One other important aspect of Judge Kavanaugh’s dissent: why it was important to transfer the young girl to a sponsor.
The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor – ordinarily a family member, relative, or friend – before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion. I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched. After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.