Dispute over abortion for undocumented minor reaches Supreme Court

By Dave Andrusko

The dispute over whether undocumented, unaccompanied pregnant minors may abort has now reached the Supreme Court, according to POLITICO.

Josh Gerstein and Renuka Rayasam reported in story updated this morning

The Trump administration asked the Supreme Court on Monday to block an abortion for a teenage girl in immigration custody, even as federal officials gave up their fight to prevent another undocumented immigrant teen from terminating her pregnancy.

The moves came just hours after a federal judge ordered the Trump administration to permit abortions as soon as Tuesday evening for both pregnant 17-year-old girls being held in federally funded shelters in different states.

The Justice Department did not provide a detailed explanation of its decision to acquiesce in one girl’s decision while continuing to seek to block the other teen from getting an abortion, but simply cited “differing circumstances.”

The two girls, identified as Jane Roe and Jane Poe, were 10 and 22 weeks pregnant, respectively. Jane Poe was the minor who received the abortion this morning.

This battle between the Trump administration and the ACLU is a continuation of the legal dispute, the first round of which the ACLU prevailed in October. In that instance, a 17-year-old undocumented, unaccompanied girl (Jane Doe) aborted her 16-week-old baby after securing permission from U.S. District Court Judge Tanya Chutkan.

Her case had reached the DC Circuit Court of Appeals where a three judge panel initially gave the federal government additional time to find the girl a sponsor only to be overturned by the full court.

Round two began when the same judge, Tanya Chutkan, “ordered the Trump administration to permit abortions as soon as Tuesday evening for both pregnant 17-year-old girls being held in federally funded shelters in different states,” according to POLITICO. Last night Solicitor General Noel Francisco filed a stay application with the Supreme Court, saying

the other girl “is only about 10 weeks pregnant” and efforts to find a sponsor who could take her out of federal custody could be completed within two weeks.

“A stay here would preserve the status quo pending further adjudication…and would ensure that this Court need not choose ‘between justice on the fly’ and ‘participation in what may be an idle ceremony,'” Francisco added.

The two girls are part of a larger campaign by the ACLU to expedite abortions for all pregnant undocumented teens who seek them. According to Gerstein and Rayasam, “Chutkan has yet to weigh in on the ACLU’s request to convert the case to a class action in order to provide relief to other pregnant undocumented teens being held in federally funded shelters and denied access to abortion. The administration had said there is no ‘class’ because other minors in shelters weren’t requesting abortions.”

The Trump administration has steadfastly insisted the government will not “facilitate” these abortions. Ken Paxton, the attorney general of Texas, filed an amicus brief on behalf of Texas and a coalition of other states arguing that illegal aliens detained at the border have no constitutional right to an abortion. Likewise “Steven Wagner, the acting assistant secretary for Administration for Children and Families, and Scott Lloyd, the director of the Office of Refugee Resettlement — both of whom were sued in their individual capacities — filed a separate brief arguing that unadmitted aliens, such as Roe and Poe, do not have a constitutional right to abortion,” POLITICO reported.

Just how above board the ACLU was in the case of Jane Doe back in October is a matter of considerable dispute. The ACLU insists it did everything appropriately while the Justice Department maintained the ACLU had speed-walked the 17-year-old’s abortion.

Writing at the Washington Examiner Margot Cleveland goes much further.

Two months ago, attorneys for the ACLU gamed the judicial system to secure an expedited decision from the full D.C. Circuit Court of Appeals that unaccompanied minors illegally present in the United States have a constitutional right to an abortion. The ACLU’s client in that case, Garza v. Hargan, was a 17-year-old girl from Central America, identified only as Jane Doe. She was 15 weeks pregnant.

Following its victory on appeal, the ACLU informed Department of Justice attorneys that Doe would not be able to obtain an abortion for two days. In turn, the DOJ told the ACLU it would seek a stay of the D.C. Circuit’s order, pending appeal to the Supreme Court, the following morning. Rather than risk the Supreme Court ruling Doe did not have a right to an abortion, the ACLU pushed Doe’s abortion up a day and into the early morning hours — well before government attorneys had an opportunity to file the motion for a stay with the Supreme Court.

Because of the ACLU’s alleged behavior, the Department of Justice has asked the Supreme Court to vacate the D.C. Circuit Court of Appeal’s decision .