WASHINGTON (CN) – Saying the government’s unconstitutional conduct requires direct intervention, attorneys for a minor trying to get an abortion asked the D.C. Circuit late Sunday to hold an en banc rehearing.
“While this litigation proceeds, a seventeen-year-old pregnant woman waits to hear whether she will be able to have the abortion she desires or whether instead the government will be allowed to force her to continue the pregnancy and have a baby against her will,” the American Civil Liberties Union said in a 14-page emergency petition. “Our government has held her in this unlawful position for almost a month; this court should not allow this injustice to continue any longer.”
The ACLU’s challenge erupted last month when authorities apprehended the girl, identified in the court record only as Jane Doe or J.D., for a purportedly illegal border crossing.
Doe’s country of origin is under seal by the court, but the ACLU notes that “she is approximately 15-1⁄2 weeks pregnant, and she strongly desires an abortion.”
As is its practice with unaccompanied minors from Central America apprehended at the border, the government turned Doe over to a private shelter run by a company contracted by the U.S. Department of Health and Human Services.
Doe was still in the first trimester of her pregnancy at the time. The ACLU notes that her court-appointed guardian is standing ready to transport her to an abortion clinic, but the government has refused to let them make an appointment.
Though a federal judge ordered the government to stand aside, the D.C. Circuit vacated that ruling Friday, saying the government should instead secure a sponsor for Doe who can arrange for her medical care.
Attorneys for Doe call this unacceptable, pointing out that the practical result of the court’s Oct. 31 deadline is that Doe will be unable to get an abortion until November, “pushing her closer to the point at which abortion is barred under Texas law.”
“The Supreme Court has never countenanced government action that forces a woman to delay her abortion for anywhere approaching this length of time,” the petition states.
While the ACLU is fighting for more immediate relief, the government is after a further delay, asking the court to stay the Oct. 20 order pending appeal.
In its petition the ACLU calls the government’s conduct “blatantly unconstitutional, violating forty years of Supreme Court precedent.”
“The health center stands ready to provide the care; and private funds have been provided to pay for the procedure,” the petition states. “All defendants must do is to step aside and stop blocking the door.”
Unwilling to hang its hopes on the selection of a sponsor, meanwhile, the ACLU called this delay “an exercise in futility that serves no purpose other than to keep J.D. pregnant longer.”
“The government has been under a statutory obligation to attempt to find an appropriate sponsor for more than six weeks and thus far none has been found,” the petition states.
Robert Carey, a former director of the Office of Refugee Resettlement at HHS, testified to the government’s complicated sponsorship protocol in a declaration submitted with Sunday’s petition.
“The ORR policies outlined herein are in place for good reason — they are vitally important to ensuring the safety of all unaccompanied minors and preventing exploitation and human trafficking,” Carey wrote. “Accordingly, it is my opinion that weakening any of these procedures to expedite the release of a pregnant minor to a sponsor who is neither the minor’s parent, legal guardian or close family relative would risk setting a dangerous precedent.”
Another opinion included with the petition is the dissent filed Friday by U.S. Circuit Judge Patricia Millet.
“As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks,” Millet wrote. “Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.”
The government has said Doe could get the abortion she seeks by leaving the United States, but the ACLU noted that the girl should not have to forfeit her immigration chances for her health.
“Indeed, as detailed in the declaration of J.D.’s state-appointed attorney ad litem, J.D. has a substantial claim for special immigrant juvenile status, a status that can eventually lead to becoming a legal permanent resident, based on the abuse she has suffered at the hands of her parents and the danger she faces if she returns home,” the petition states.
Millet calls the government’s position here one “that is wrong and that is unconstitutional.”
“The government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights,” her dissent states. “The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution. The Statue of Liberty’s promise to those ‘homeless’ ‘yearning to breathe free’ is not a lie.”
Appointed to the court by President Barack Obama, Millet closes her 10-page dissent with a biting slap at the government’s conduct.
“J.D. came to the United States without legal documentation,” she wrote. “That is not disputed. But the government cannot make a forced pregnancy the sanction for that action. J.D. retains her basic rights to personhood. After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. When they, consistent with legal process, decide to continue their pregnancies, that decision should be supported. When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.”
In addition to Doe’s case, the ACLU has a separate challenge pending in California over the obstruction faced by minors in the custody of religious-affiliated government contractors who seek abortions or birth control.
ACLU attorney Brigitte Amiri noted Friday that there is no religious affiliation at the shelter where the government sent Doe.