Supreme Court battle still looms as Justice Department drops effort to block undocumented woman from aborting

“Jane Roe” was not a minor, birth certificate shows

By Dave Andrusko

Last night, after learning that an undocumented, unaccompanied girl was 19, not 17, lawyers for the Trump administration moved to dismiss an appeal to prevent “Jane Roe” from having an abortion.

According to POLITICO’s Josh Gerstein and Renuka Rayasam, a birth certificate for Jane Roe showed she had lied about her age. In the document filed with the D.C. Circuit Court of Appeals, lawyers for the government explained that HHS’s Office of Refugee Resettlement (ORR) “obtained a copy of Ms. Roe’s certificate of birth from her home country. Accordingly, ORR is currently transferring custody of Ms. Roe to the Department of Homeland Security [“DHS”] as an adult.”

The significant of the age difference is, as Gerstein and Rayasam explained, “because Immigration and Customs Enforcement, which is responsible for adults in immigration detention, tends to have fewer restrictions on pregnant women seeking to obtain abortions while in custody.”

As a result Jane Roe was released on her own recognizance and was free to have the abortion if she still wanted to.

The second undocumented girl the ACLU sought to have her abortion had already been released, presumably because she was 22 weeks pregnant. “Jane Poe” aborted her baby on Tuesday.

But these tragic turns of event don’t change what is an impending clash before the Supreme Court. The Department of Justice has asked the High Court to vacate the decision reached by the DC Court of Appeals which allowed a different undocumented pregnant girl to abort her 16 week old baby back in October.

As a basis, 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.”

That is separate from the overall battle of which these three girls are the public face. POLITICO reported

The American Civil Liberties Union has requested class-action status for the suit it has used to demand access to abortion for the detained teens. The Justice Department has argued that HHS’ policy is lawful because a federal statute gives the agency a duty to act in the best interest of the minors and because they have the option to end their detention by returning to their home countries.

In other words, the ACLU is seeking a declaration that all undocumented girls and women have a constitutional “right” to abortion.

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 going further, 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.

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