By Dave Andrusko
The Trump administration and the ACLU were back in court Wednesday, the latest page in a lengthy story over whether the federal government must “facilitate” the abortions of unaccompanied minors who entered the country illegally and are currently in the custody of the Health and Human Services Department’s Office of Refugee Resettlement (ORR).
The case at hand began in 2017 when U.S. District Judge Tanya Chutkan said the legal status of “Jane Doe” was “irrelevant” and that “despite the fact that she’s in this country illegally, she still has constitutional rights,” as the AP described the decision. Judge Chutkan ordered the Trump administration to allow the 16-year-old teenager to have an abortion which she did on October 25, after a series of court battles.
In March 2018, Judge Chutkan adopted the ACLU’s position, “certifying a class action for all pregnant immigrant juveniles in government custody and ordering they be granted unfettered rights to abortion,” according to Stephan Dinan of the Washington Times.
“This is an unprecedented expansion of abortion jurisprudence,” August Flentje, arguing the case for the Justice Department, told the panel yesterday.
Dinan summarized the government’s position in his lead. “Pregnant immigrants caught trying to cross the border illegally can leave the U.S. rather than force the federal government to facilitate an abortion, the Trump administration argued to a federal appeals court Wednesday.”
Contrary to Judge Chutkan and the ACLU, “The government is not imposing a burden. The child can leave custody by going back,” said Flentje. The administration, Dinan added,” is asking the appeals court to cancel the judge’s class certification and to curtail her broad order applying to every immigrant teen in ORR custody — including the vast majority the government said aren’t seeking abortions.”
Ann E. Marimow of the Washington Post expanded, writing that the government was “ask[ing] the appeals court for leeway to consider the individual circumstances of each teen in custody instead of allowing the case to move forward as an official class or group of litigants.”
The injunction, the government said, runs counter to its interest in “preserving life” and having minors make abortion decisions in consultation with relatives – rather than while in government custody.
The government “doesn’t have to commit any resources to terminate a pregnancy,” Flentje told the court.
At least one judge was skeptical of the government’s argument, according to the Post’s Marimow. Judge Sri Srinivasan said “abortion is a right the teen has, and going back to their home country strips them of that right they gained once entering the U.S. ‘If you leave the country, the right is gone,’ he said.”
The ACLU’s argued “Judge Chutkan got it right in issuing a broad ban on the government interfering in any way with pregnant immigrant teens who entered the U.S. illegally.”
Dinan wrote, “At issue are perhaps dozens of immigrant teens who attempted to sneak into the U.S. illegally and unaccompanied by their parents, and who are now in custody of the Health and Human Services Department’s Office of Refugee Resettlement. The government says it’s searching for sponsors to take the children, but in the meantime, it is acting instead of their parents, has an interest in helping the teens make the best choices possible regarding abortion and has a general policy against facilitating the procedure.”