By Dave Andrusko
As part of an ongoing challenge, the ACLU said today that it has asked the U.S. District Court for the District of Columbia for a temporary restraining order so a 17-year-old undocumented woman identified as “Jane Moe” can obtain an abortion.
If she succeeds, she would be the fourth undocumented pregnant teenager in federal custody to have a court overrule the policy of the Trump administration not to “facilitate” abortions of unaccompanied minors. According to the ACLU, Jane Moe requested an abortion about two weeks ago but “has been prevented from getting one by the Office of Refugee Resettlement (ORR), an office within the Department of Health and Human Services,” the Washington Post’s Ann E. Marimow reported.
According to the ACLU, Jane Moe “is in her second trimester of pregnancy.” In its lawsuit, Garza v. Hargan, the ACLU argues that “abortion is a fundamental constitutional right. And that right does not depend on immigration status.”
Veteran Supreme Court reporter Lyle Denniston reported last month that the Supreme has decided to “move ahead on the dispute over teen abortions.”
In the first three cases of undocumented, unaccompanied minors, all the women aborted after U.S. District Court Judge Tanya Chutkan agreed that must be allowed to abort. In response to cases two and three—“Jane Doe” and “Jane Poe”–the government said
“We are deeply disappointed in the decision [by Judge Chutkan] to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary,” spokesperson for the Department of Health and Human Services told POLITICO. “A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor. HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions.”
That has been the Trump administration’s position from the beginning: the government is not obliged to “facilitate” these abortions. (As Denniston noted, “Since the Supreme Court has ruled that women in general have a constitutional right to choose to have an abortion, and that government may not impose an ‘undue burden’ on that right, the Trump legal team takes the view that failing to facilitate an abortion does not impose any such burden.”)
The Department of Justice argues that these pregnant teenagers may either go back to their home country of origin or “identify a suitable sponsor” but not simply be released on their own recognizance. (The Washington Post noted in its story today, “There were 420 pregnant girls in custody during fiscal 2017, according to court records.”)
A number of state attorneys general have gone further. “Texas and 10 other states have made repeated efforts to get three federal courts to rule that, as illegal entrants to the U.S. with no more tie to this country than the fact that they are detained by the government, the young immigrants have no constitutional rights, including no right to an abortion,” Denniston writes. They want the Supreme Court to rule explicitly that “unlawfully-present aliens with virtually no connections to the United States have no constitutional right to an elective abortion.”
The Justice Department is also addressing the specifics of the first undocumented teenager (“Jane Doe”) who did abort in late October after a split DC Circuit Court of Appeals agreed with Judge Chutkan.
As NRL News Today has discussed in previous stories, the Justice Department is challenging the behavior of the ACLU lawyers.
In November the Justice Department filed a 29 page petition, arguing that “the ACLU misled the United States as to the timing of Jane Doe’s abortion,” according to Justice Department spokesman Devin O’Malley. “After informing Justice Department attorney the procedure would occur on October 26th, Jane Doe’s attorneys scheduled the abortion for the early morning hours of October 25th, thereby thwarting Supreme Court review.” The Justice Department seeks some unspecified form of punishment.
Denniston writes, “The more important part of that appeal, though, is the Administration’s request for the Justices to answer this question: should lower courts be ordered to dismiss all claims for release from detention regarding minors who entered the country alone and are or were found to be pregnant?” As noted, these teenagers are currently being held in HHS- funded shelters in different states.
Dennison concluded that the first issue the Supreme Court justices will confront “is whether to grant review. If they do accept the case, it could be decided before the end of the current term, probably in late June.”
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