WASHINGTON (CN) – A federal judge rejected the government's argument Monday that it can delay, or prevent entirely, abortions for two unaccompanied immigrant teenagers in federal custody.
U.S. District Judge Tanya Chutkan granted the American Civil Liberty Union's motion for a temporary restraining order late Monday afternoon, instructing the government to step aside.
Chutkan was critical of the government during oral arguments Monday morning for standing in the way of the immigrant teens getting abortions after it lost a similar case two months ago.
“All right, here we are again,” Chutkan said this morning at the start of the hearing for a pair of pregnant 17-year-olds identified in the court record only as Jane Roe and Jane Poe.
Two months ago it was another 17-year-old immigrant known as Jane Doe who was fighting for access to an abortion after she was apprehended at the Mexico-Texas border.
Because Doe was unaccompanied by an adult, the government turned her over to a facility run by a private contractor for the U.S. Department of Health and Human Services.
Many such facilities are affiliated with religious organizations that oppose abortion, and the government fought unsuccessfully to keep Doe from getting an abortion until a sponsor for her could be secured.
Attorneys for Doe at the American Civil Liberties Union countered meanwhile that the sponsorship process could take months, at which point Doe’s pregnancy would be too far along to terminate.
At Monday’s hearing on the Roe and Poe case, August Flentje, special counsel in the Office of Immigration Litigation, denied Doe’s case created precedent against any government delay on minor immigrants accessing abortion services.
When the en banc D.C. Circuit cleared the way for Doe to have an abortion in October, the court ruled the government could take 11 days to secure a sponsor for Doe.
Flentje said the government wants two weeks to get Roe a sponsor who is both a family member and a U.S. citizen. Such an individual has already submitted application materials, Flentje added.
In addition to arguing that a sponsorship-imposed delay is not per se unconstitutional, Flentje argued in an opposition brief that the government has “constitutionally legitimate interests in promoting its interest in life, in refusing to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody.”
In her order, Chutkan said the Office of Refugee Resettlement's policy had not changed since October.
"ORR continues to claim – and in the case of J.P., has actually exercised – ultimate authority to unilaterally veto the reproductive choices of the unaccompanied minors in its custody," the 5-page order states, abbreviating the Office of Refugee Resettlement. "With regard to the undue burden that veto represents, ORR maintains substantially the same positions that were considered in October by this court and by the D.C. Circuit sitting en banc."
Flentje also argued Monday that there has been no judicial determination that Roe and Poe are mature enough to choose to have abortions.
Chutkan pushed back on that argument, noting the states where the girls are being held do not require a judicial bypass of parental consent like Texas did for Doe.