WASHINGTON (CN) – Clearing the way for doctors to perform an abortion on a 17-year-old who entered the United States illegally last month, the D.C. Circuit ordered the government Friday to release the minor into the custody of a sponsor.
The unsigned order came hours after the federal appeals court held oral arguments on the fate of a girl identified only as Jane Doe. Described by her attorneys as about 15 weeks pregnant, Doe has been blocked by the U.S. Department of Human Health and Services from getting an abortion since she crossed the U.S.-Mexico border unaccompanied three weeks ago.
When the United States apprehends unaccompanied minors from Central America at its border, it generally turns them over to facilities run by private HHS contractors. Many such facilities are affiliated with religious organizations that oppose abortion.
The D.C. Circuit says HHS should be given until the end of business hours on Oct. 31 to secure a sponsor for Doe and release her into that individual’s custody.
“If a sponsor is secured and J.D. is released from HHS custody to the sponsor, HHS agrees that J.D. then will be lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law,” the order states, abbreviating Jane Doe. “If a sponsor is not secured and J.D. is not released to the sponsor by that time, the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the government or J.D. may, if they choose, immediately appeal. We note that the government has assumed, for purposes of this case, that J.D. — 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.”
Reacting to the order late Friday, the Administration for Children and Families at the U.S. Department of Health and Human Services touted its respect for human dignity.
“For however much time we are given, the Office of Refugee Resettlement and HHS will protect the well-being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care,” the agency said in an email.
American Civil Liberties Union attorney Brigitte Amiri argued before the three-judge panel Friday that the government has put an unconstitutional undue burden on Doe’s right to have an abortion.
“The government may not ban abortion for anyone,” Amiri said.
Amiri argued that the government is entitled to take actions in the teen’s best interests, but that here it is acting against her wishes to have the procedure.
“What they are actually doing is supplanting their decision about what J.D. should do with her pregnancy,” Amiri said, abbreviating Jane Doe. “And that is not acting in her best interest. And that is actually a veto power over J.D.’s decision.”
Before the ACLU sued in Washington on the teen’s behalf last week, it tried to add Doe to a 2016 case in California where the group is fighting to keep religiously affiliated shelters from imposing their anti-abortion stance on minors.
U.S. Magistrate Judge Laurel Beeler rejected that maneuver on Oct. 11, finding that Doe lacked legal standing to join the case because she is in Texas.
Meanwhile in Washington, U.S. District Judge Tanya Chutkan set the stage for appellate oral arguments Friday with an order for HHS not to prevent Doe from getting an abortion.
Though the D.C. Circuit put Chutkan’s order on hold Thursday pending its resolution of the case, Amiri and Dorsey confirmed that Doe underwent pre-abortion counseling the same day, as required by Texas law.
Catherine Dorsey with the Justice Department argued at this morning’s hearing that nothing has been done to prevent or block Doe’s pursuit of an abortion.
“The government has not put any obstacle in her path,” Dorsey said. “Rather the government is refusing to facilitate an abortion, which it is permitted to do in furtherance of its legitimate and significant interests in promoting childbirth.”
Dodging the issue of the teen’s constitutional rights, Dorsey argued that the girl could be released to a sponsor or could voluntary return to her home country, the name of which has been sealed by the court.
U.S. Circuit Judge Brett Kavanaugh focused much of his questioning Friday on whether Doe could be released to a sponsor, thereby resolving the matter without tackling the constitutional issues at stake. Though he probed both attorneys on the process for sponsorship, neither could provide a specific timeframe for how long that would take.
Grappling with his own hypothetical, Kavanaugh questioned whether the intercession of a sponsor would support the government’s argument that it is not blocking the teen’s access to an abortion. He also questioned whether the time it would take to find a sponsor is “analytically akin” to the time it might take to get parental consent.
Amiri quoted Supreme Court precedent in response, saying alternative mechanisms for minors to act on their choice to have an abortion must be quick.
That requires safeguards to ensure there are no delays and that the minor can quickly access an abortion anonymously, and without parental consent, Amiri said.
Amiri played down Kavanaugh’s concern about Doe’s opportunities to consult with an adult before undergoing a major, life-changing decision such as getting an abortion.
“She has a bypass from a court that has found her mature enough to make the decision,” Amiri said.
U.S. Circuit Judge Patricia Millet meanwhile noted that Doe has a court-appointed guardian ad litem to protect her interests.
“She’s already got the adult, so now we’re talking about guardianship squared,” Millet said.
Amiri echoed this point.
“So she has two adults that are working with her, acting in her best interests, and that she is confiding in,” Amiri said. “They have been with her every step of the way. They went with her yesterday to the counseling appointment.”
Amiri noted that Doe just entered the second trimester of her pregnancy this week. Although Doe had the mandatory pre-abortion counseling on Thursday, Texas law requires that counseling must be done with the same doctor performing the abortion.
The doctor who counseled the teen on Thursday will only be on duty through Saturday, Amiri said. After that, Doe will have to start the process over.
Amiri also expressed concerns about other time constraints facing her client.
Texas law prohibits abortions after 20 weeks. Once she has been pregnant for 17 weeks and six days, Doe will have to travel to another clinic farther away, Amiri said, requiring two round trips of several hundred miles – one for the counseling and another for the procedure.
Speaking to reporters after the hearing, Amiri called the government’s position “blatantly unconstitutional.”
“They are holding her hostage and preventing her from having an abortion,” Amiri said.
Quoting the Supreme Court again, Amiri said its precedent makes clear that Fifth Amendment due process rights cover anyone present in the U.S.
“The fact that they are unwilling to acknowledge basic Supreme Court precedent in that regard is almost as shocking as denying Jane Doe her very well-settled constitutional right to an abortion,” she said.
All the government needs to do, Amiri said, is call the shelter and tell them to let her go to have the procedure.
“That is not being complicit in the abortion,” she said. “That is getting out of her way.”
After Doe won a temporary restraining order from Judge Chutkan on Wednesday, a representative for the Administration for Children and Families said the agency was troubled that the court would set “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 administration said in its statement. “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.”