DC Circuit Removes Trump Hurdle to Immigrant Abortions

Activists with Planned Parenthood demonstrate in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion, outside of the Department of Health and Human Services in Washington on Oct. 20, 2017. The Office of Refugee Resettlement at the U.S. Department of Health and Human Services lost its appeal Friday to reinstate its policy of refusing to let teens in its care obtain abortions. (AP Photo/J. Scott Applewhite File)

WASHINGTON (CN) — Striking down the abortion ban 2-1, the D.C. Circuit ruled Friday that the Trump administration cannot force underage immigrants to carry their pregnancies to term.

“To be sure, the ‘right to an abortion’ is viewed to have a ‘controversial nature,’ as to which people ‘sincerely hold directly opposing views,’” the unsigned 81-page decision states. “But the Supreme Court ‘has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose.’ And we are not free to dilute a constitutional right recognized by controlling Supreme Court precedent — a right the government affirmatively assumes unaccompanied minors here have — so that others will be dissuaded from seeking a better life in this country.”

The Office of Refugee Resettlement, a division of Health and Human Services that takes custody of minors who cross the U.S. border unaccompanied by an adult, adopted the policy move in 2017. Regardless of whether a pregnant immigrant met the legal requirements for an abortion in the state where she was being held, ORR refused to these girls obtain abortions, even in cases of rape.

Last year, four unaccompanied minors in ORR custody whose requests for abortion were denied under the new policy brought a class action in Washington. Their suit ended with an injunction, and the Justice Department made myriad claims on appeal to overturn that relief.

Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, lauded the court for meticulously rejecting each of the government’s defenses of the unconstitutional policy.

“This case is part and parcel to the hostility the Trump administration has toward immigrants and particularly immigrant minors,” Amiri said in a phone interview Friday. “The fact that they have come to this country without documentation does not change their constitutional right to an abortion.”

Former President Barack Obama appointed both members of the court who ruled for the ACLU today, U.S. Circuit Judges Sri Srinivasan and Robert Wilkins.

Senior U.S. Circuit Judge Laurence Silberman argued in dissent that the government should be permitted to delay detained minors from obtaining abortions until such time that they are released into the custody of a suitable sponsor.

“The majority suggests that the government’s real interest in sponsorship is nothing more than avoiding facilitation of abortion,” wrote Silberman, a Regan appointee. “This is unfair. It seems to me irrelevant as to what the ‘record’ reveals of ORR’s ‘thinking’ – whatever that means – about the benefits of adult guidance for a pregnant minor. Contrary to the assertions of the majority, in this litigation, the government has argued that sponsorship does provide that benefit to a pregnant minor.”

Quoting an opinion that the Supreme Court’s newest judge wrote during his time with the D.C. Circuit, Silberman said he is “afraid the majority’s refusal to consider narrowing the scope of the district court’s order justifies Judge Kavanaugh’s accusation that the court is endorsing abortion on demand – at least as far as the federal government is concerned.”

In the lead opinion meanwhile, the majority emphasized that for many detainees, including one of the lead plaintiffs, suitable sponsors are never found.

“Everyone agrees that sponsorship benefits UACs: that is why the government seeks release to a sponsor for all UACs, pregnant or not,” the opinion states, abbreviating the term unaccompanied alien children. “The salient question, though, is whether … the ban on abortion access is adequately aimed to (or operates to) realize those benefits of sponsorship for unaccompanied minors, even though it denies them abortion access without regard to the prospects of their release to a suitable sponsor. For the reasons explained, we think the answer is no.”

Representatives for the Administration for Children and Families at the U.S. Department of Health and Human Services did not immediately respond to request for comment on Friday.

A Health Department spokesman said in 2017 that if the courts fail to uphold the Trump administration’s policy it will set a dangerous precedent and draw “illegal children” seeking abortions across the U.S. border.

“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,” the rep said at the time.

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