WASHINGTON ― A federal appeals court has allowed the Trump administration to continue to prevent an undocumented teen from obtaining an abortion, potentially prolonging an unwanted pregnancy for 11 days or more.
A split decision from the U.S. Court of Appeals for the District of Columbia Circuit ordered the government to secure a sponsor for the teen by 5 p.m. on Oct. 31 and said the teen, referred to as Jane Doe, would be able to get an abortion when in the sponsor’s custody. The court said the process would not “unduly burden the minor’s right under Supreme Court precedent to an abortion” provided that “the process of securing a sponsor to whom the minor is released occurs expeditiously.”
If a sponsor isn’t secured by that date, a lower court could issue a temporary restraining order or preliminary injunction, the appeals court said. The ruling noted that the government had “assumed, for purposes of this case, that [Jane Doe] ― an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States ― possesses a constitutional right to obtain an abortion in the United States.”
The American Civil Liberties Union, which is representing the teen, called the ruling a “dangerous decision” that allowed for further delay. The 17-year-old has already been in government custody for weeks without finding a sponsor and was granted permission to obtain an abortion by a Texas state judge on Sept. 25.
U.S. Circuit Judge Brett Kavanaugh, a George W. Bush appointee who was on Trump’s shortlist for the Supreme Court and appears to have been behind the order, repeatedly said during Friday’s oral arguments that it might be the best-case scenario if she could just be released to a sponsor. But finding a sponsor is neither simple nor quick. The government already ruled out two potential sponsors for the teenager, which is why she has been detained for so long.
The teenager entered the U.S. without authorization and unaccompanied by parents in early September. Since then, she has been in the custody of the Office of Refugee Resettlement, which under President Donald Trump implemented a policy barring most minors in its care from obtaining abortions.
The government allowed Jane Doe to leave a Texas shelter to go to a “crisis pregnancy center,” where she was urged against an abortion, but it has refused to allow her to go to a clinic to terminate her pregnancy, even though she received permission to do so from a Texas state judge.
Here, what we’re talking about is [the government] standing in the way. All they need to do is get out of the way. Brigitte Amiri, senior staff attorney at the ACLU's Reproductive Freedom Project
A U.S. district judge ruled on Wednesday that Jane Doe should be allowed to go to pre-abortion counseling on Thursday. She was then planning to undergo the procedure on Friday or Saturday, but the D.C. Circuit Court of Appeals halted that part of the ruling so it could hear arguments.
A Department of Justice attorney argued on Friday morning that the government was not preventing Jane Doe from getting an abortion, because she had the option of voluntarily departing the U.S. or finding a sponsor to live with. The attorney, Catherine Dorsey, also said the government should not be forced to “facilitate” an abortion by signing off on it or by providing her care afterward.
The ACLU argued that the Office of Refugee Resettlement is violating the girl’s right to an abortion and essentially holding her hostage, which could lead to her being unable to terminate the pregnancy at all. The teenager is currently 15 weeks pregnant, and at 20 weeks will no longer be allowed to get an abortion in Texas.
Neither of the options the government presented to Jane Doe are reasonable ones, Brigitte Amiri, a senior staff attorney at the ACLU’s Reproductive Freedom Project, argued on Friday.
Telling the teenager she could have an abortion only if she leaves the U.S. amounts to a penalty, Amiri said. Jane Doe has not yet begun deportation proceedings, so it’s not clear whether she has legal avenues to remain in the country, but if she took the Trump administration’s suggestion, she wouldn’t even be able to try.
The shelter where Jane Doe resides is contracted by the government to provide her direct care, and she has arranged transportation to the clinic and to pay for the procedures, so the Office of Refugee Resettlement’s direct involvement would be minimal. Amiri argued that the office only needed to make a phone call.
“Here, what we’re talking about is them standing in the way,” Amiri said. “All they need to do is get out of the way.”
Prior to the Trump administration, the office’s leadership did not make decisions about abortions at all, unless it was over whether they could receive government funding for the procedure in cases of rape or incest or if the life of the mother were at risk. The office is now run by director Scott Lloyd, a former attorney for the Knights of Columbus who opposes abortion.
Even if Jane Doe is released to a sponsor before Oct. 31 and is allowed to have an abortion, other pregnant girls in Office of Refugee Resettlement custody are likely to be in her same position, if not now then in the future.
The government argued that even if a minor were seeking asylum, she would still be blocked from going to abortion appointments and told she could go to her home country if she wanted to terminate a pregnancy.
Ultimately, the court may not have to decide whether the government must allow this particular Jane Doe to leave a shelter for an abortion. But finding her a sponsor won’t solve the problem for other girls like her.