WASHINGTON (CN) – An undocumented teen held in federal custody who had sought to obtain an abortion has had the procedure, a day after the D.C. Circuit ruled the government could not stop her from doing so.
The American Civil Liberties Union said on Twitter that the 17-year-old had the procedure early Wednesday. Susan Hays, legal director for the Texas group Jane’s Due Process, confirmed the teen had the abortion.
The D.C. Circuit ruled Tuesday by a 6-3 vote that the government cannot block an undocumented 17-year-old from having an abortion.
The decision by the en banc appellate court supplants a divided ruling issued by a three-judge panel of the court on Friday. That ruling cleared the way for the teen to get the procedure, but with significant delay. The court gave the government until Oct. 31 to find a sponsor to release her to, and left the door open to further appeals.
Tuesday’s ruling remands the matter to U.S. District Judge Tanya Chutkan, who issued an injunction on Oct. 18, requiring the government to allow the teen to have the abortion after the American Civil Liberties Union sued on the young woman’s behalf earlier this month.
“The district court is best suited to promptly determine in the first instance the appropriate dates for compliance with the injunction,” the unsigned order states.
The 17-year-old, identified as Jane Doe, has been fighting for access to an abortion since shortly after she was detained at the U.S. border in Texas last month. Described by her attorneys as being in her second trimester, Doe had received an order from a Texas state judge that said she could have the procedure without parental consent.
However the U.S. Department of Health and Human Services has refused to allow the teen to leave the shelter to have the procedure done, delaying the abortion by about a month.
The Office of Refugee Resettlement said Tuesday it had no comment on the ruling.
During oral arguments before a three-judge panel of the D.C. Circuit on Friday, the ACLU argued that Doe is constitutionally entitled to an abortion, meanwhile the government declined to say whether it believes the teen has that right.
In a dissent from Tuesday’s order, U.S. Circuit Judge Karen LeCraft Henderson called the government wrongheaded for not taking a position, concluding that Doe does not have that right.
“The government has inexplicably and wrongheadedly failed to take a position on that antecedent question,” the dissent states. “I say wrongheadedly because at least to me the answer is plainly — and easily — no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”
Henderson also criticized the panel majority for bestowing the right to an abortion on an undocumented minor with no substantial connections to the U.S., saying that the decision “plows new and potentially dangerous ground.”
During oral arguments Friday, U.S. Circuit Judge Brett Kavanaugh tried to avoid deciding the constitutional question, pushing the court to give the government enough time to find a suitable sponsor without creating an undue delay for Doe. The Department of Health and Human Services had said it would not object to releasing the teen to a sponsor, who could then take her to have the procedure.
But the ACLU filed an emergency petition on Sunday for rehearing en banc, which the D.C. Circuit granted. The full court’s Tuesday ruling, Kavanaugh said, broke new constitutional ground by authorizing abortion on demand for undocumented minors.
In a concurring opinion, U.S. Circuit Judge Patricia Millet rejected that assertion, writing that the government has conceded that her immigration status has no bearing on her constitutional right to have an abortion.
Millet called the government’s position “constitutionally untenable.”
“The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention by either (i) 2 surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor — effectively, a foster parent — willing to take custody of her and to not interfere in any practical way with her abortion decision,” she wrote. “That is constitutionally untenable, as the en banc court agrees.”
ACLU attorney Brigitte Amiri with the Reproductive Freedom Project said in a statement that the Trump administration has shown its true colors at each phase of the case.
“It’s clear that their anti-woman, anti-abortion, anti-immigration agenda is unchecked by basic decency or even the bounds of the law,” Amiri said. “No one should have to go to court to get a safe, legal abortion.”