WASHINGTON ― A federal judge ordered the Trump administration to allow an undocumented immigrant teenager in its custody to get an abortion, which officials have obstructed for weeks while instead sending her to a religious crisis pregnancy center to dissuade her from terminating the pregnancy.
On Wednesday, U.S. District Judge Tanya Chutkan ruled that government officials must “promptly and without delay” allow the 17-year-old girl, referred to in the lawsuit as Jane Doe, to temporarily leave custody to obtain an abortion. The Department of Justice filed an appeal to the judge’s ruling later on Wednesday.
The teenager is in the custody of the Office of Refugee Resettlement, which handles unaccompanied minors who are apprehended at the U.S.-Mexico border. In March, the office changed its policies to discourage and block minors from getting abortions, a medical service they were previously allowed to access, although the government paid for it only in cases of rape, incest and if a woman’s life was at risk. Under the current policy, it is unclear whether ORR is allowing any minors, including rape victims, to obtain abortions.
Jane Doe, who is being represented by the American Civil Liberties Union, has already jumped through hoops required by the state of Texas in order to receive an abortion. She received permission from a state judge to have the procedure and made plans to pay for it herself and get transport to her appointments.
But the government has not allowed her to leave custody to obtain an abortion, and officials argued they were under no legal obligation to do so. They also claimed they were not blocking her from getting an abortion because she could get one elsewhere if she agreed to leave the country.
“Just because she’s here illegally doesn’t mean she doesn’t have constitutional rights,” Chutkan said.
Her courage and perseverance are incredible, but no one should have to go to court to get a safe, legal abortion. And no one should be held hostage to the extreme anti-abortion views of a handful of government officials. Brigitte Amiri, senior staff attorney with the ACLU
In her ruling, Chutkan said the government must allow Jane Doe to go to pre-abortion counseling required by Texas law on Oct. 19 and then undergo the procedure on Oct. 20 and/or Oct. 21, depending on medical requirements and availability. Jane Doe’s lawyers requested swift action because she is 15 weeks pregnant, and Texas law allows elective abortion until up to 20 weeks of pregnancy.
The judge temporarily blocked the government from forcing the teen to reveal her decision about her abortion to anyone or reveal it themselves, after officials previously told Jane Doe’s mother without her consent. Chutkan also temporarily blocked the government from retaliating against either Jane Doe or any shelter where she resides based on her abortion decision.
“At last, our client will be able to get the care she needs without federal officials standing in the way,” Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, said in a statement. “Her courage and perseverance are incredible, but no one should have to go to court to get a safe, legal abortion. And no one should be held hostage to the extreme anti-abortion views of a handful of government officials.”
In an emailed statement, a spokesperson for the Administration for Children and Families at the U.S. Department of Health and Human Services called the court’s decision “a troubling ruling that exceeds the U.S. Constitution and sets a dangerous precedent by opening our borders to any illegal children seeking taxpayer-supported, elective abortions. We are disheartened the ruling rewards ideologically motivated lawsuits filed in multiple courts by the ACLU and abortion advocates.”
The statement went on: “Though the order overrides the policies and procedures of the Office of Refugee Resettlement designed to protect children and their babies who have illegally crossed the border, we will continue to provide them with excellent health care and protect their well-being in all our facilities. We will consider our next steps to ensure our country does not become an open sanctuary for taxpayer-supported abortions by minors crossing the border illegally.”
Amiri called the government’s decision later Wednesday to appeal and continue to fight to block Jane Doe’s abortion “shocking.”
“We should all be horrified that the federal government is doing everything imaginable to stop a young woman from getting an abortion. Even from this administration, it is shocking,” she said in a statement on Thursday. “We are not backing away from this fight.”
DOJ did not immediately respond to a request for comment on the appeal.
Abortions for undocumented minors are rarely paid for with taxpayer money ― and only in the exceptions outlined above in cases of rape, incest or where the health of the mother is involved. The operation for Jane Doe would be privately funded.
Asked about the claim of “taxpayer-supported abortions,” an HHS spokesman said “the mother and unborn baby are in a federally-funded government program.”
The ACLU lawsuit also exposed broader anti-abortion practices at ORR, which is headed by Scott Lloyd, a former attorney at the Catholic organization Knights of Columbus who opposes abortion. Lloyd reportedly has said he would allow pregnant minors to be released only for “pregnancy services and life-affirming options counseling.” He has also made the highly unusual move of visiting minors directly to discourage them from obtaining an abortion.
Earlier this month, a U.S. magistrate in California said that ORR policy to obstruct abortions appeared to be illegal. Women in the U.S. have a constitutional right to abortion even if they are undocumented and/or are in government custody, U.S. Magistrate Laurel Beeler said, although she ultimately did not officially rule on the policy.
“The government may not want to facilitate abortion, but it cannot block it,” Beeler said in court earlier this month, according to the San Francisco Chronicle. “It is doing that here.”
The emergency order issued Wednesday by Chutkan applies to Jane Doe’s case specifically, but the ACLU is also seeking to block ORR’s broader policies preventing abortion access to minors in custody. At any given time, there are several hundred to 1,000 pregnant minors in ORR custody, according to the ACLU.
The Department of Justice, which represents the government in court, declined to comment on the ruling.
This story has been updated to include the administration’s reaction and to note the Justice Department’s appeal of the ruling.
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