All-Male Circuit Panel Weighs Immigrant Abortion Battle

WASHINGTON (CN) – Defending its authority to keep underage immigrants from getting abortions, the government urged the D.C. Circuit on Wednesday to vacate a nationwide injunction.

U.S. District Judge Tanya Chutkan issued the injunction here in late March on behalf of pregnant minors who find themselves in the custody of the Office of Refugee Resettlement after entering the United States illegally.

While the government cited a policy of “refusing to facilitate” abortions for so-called unaccompanied minors, Chutkan found that such practices put an undue burden on reproductive rights.

Justice Department attorney August Flentje told the D.C. Circuit today meanwhile that the decision went too far. Calling the injunction “an unprecedented expansion of abortion jurisprudence,” Flentje argued that Chutkan could have struck down the policy and ordered ORR to go back to the drawing board, rather than tying its hands.

“That can’t be correct and is not required by the due process clause,” Flentje said this morning during a hearing that ran for roughly 2 1/2 hours.

Arguing before a three-judge, all-male panel, Flentje appeared to have the court’s ear today with his claim that the class Chutkan certified was overly broad.

While the judges questioned whether the class could be limited only to those pregnant unaccompanied minors who want abortions, American Civil Liberties Union attorney Brigitte Amiri pushed pack.

Defending the broad nature of the class, Amiri said the government could otherwise deprive these teens of the ability to make an informed decision about continuing their pregnancies.

U.S. Circuit Judge Robert Wilkins, an Obama appointee, emphasized that courts issue injunctions only when an unconstitutional policy exists.

“My problem is that we don’t impose injunctions to keep something from happening,” he said.

Wilkins, along with U.S. Circuit Judges Sri Srinivasan and Laurence Silberman, seemed inclined to remand the class certification issue to Chutkan, but Amiri said in an interview after the hearing that could end up harming some pregnant immigrant teens.

“Certainly what we don’t want is for the injunction to be lifted if there is going to be a remand to the district court because the government will just go back to their old ways and coerce minors to carry their pregnancies to term,” Amiri said. “And when that fails, block them. And we might not know about those minors.”

Amiri said the ACLU knows of 12 unaccompanied teens in federal custody who either requested an abortion, information about abortion or a judicial bypass allowing them to get an abortion.

The ACLU Foundation first sued the government in October after discovering that the Trump administration was blocking a 17-year-old girl, identified only as Jane Doe, from getting an abortion.

Amiri said the government is working to block teens who may not immediately know whether they want to terminate or continue their pregnancies from accessing neutral information about abortion.

Such efforts to influence their decision are unconstitutional, Amiri said.

Silberman, a Reagan appointee, pushed back on that assertion.

“Hinder and influence are not the same thing,” he said.

“I don’t think they can influence with improper means,” Amiri responded. If the government forces a pregnant minor to go to religious counseling, for example, Amiri said that crosses the line into coercion.

Flentje disputed that the government is creating an undue burden, saying the unaccompanied minors do that themselves when they choose to cross the border.

Because the minors have the option to voluntarily depart and return to their home countries, the government can’t impose an undue burden on their right to access abortion, Flentje said.

But attorney Amiri said the Constitution does not allow that type of veto over whether an unaccompanied minor can access abortion care.

“This is a blanket ban on abortion for any minor in government custody, and it is blatantly unconstitutional,” Amiri argued in court.

Outside the courtroom, Amiri called the government’s voluntary departure argument “wrong for so many reasons.”

“What this means is that the government could just say ‘if you don’t like the fact that we are violating your constitutional rights you can go back to the country where you came from,'” Amiri said in an interview.

Amiri said such a policy would punish some immigrant teens seeking asylum, or those who may have some other legal right to stay in the country.

The voluntary-departure process can also take weeks, if not months.

“Some minors would be forced to carry their pregnancies to term in the meantime,” Amiri added.

She also noted that many unaccompanied minors arrive at the U.S.-Mexico border from countries where abortion is illegal.

“So saying you can go back to your home country means nothing if you can’t access abortion there,” Amiri said.

The D.C. Circuit panel said at the close of Wednesday’s hearing that they had taken the matter under advisement, but did not say when they would issue an opinion in the case.

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