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.
When no judicial bypass is required, it can be assumed the girls are free to make their own decision, Chutkan said.
Brigitte Amiri, an attorney for the American Civil Liberties Union who represented Doe, is representing Roe and Poe as well. She told Judge Chutkan on Monday that the new matter is “absolutely deja vu,” saying the government’s interference amounts to an unconstitutional ban on abortion.
“It’s not the government’s decision to make,” Amiri said Monday.
Amiri was pleased with the court’s order.
“The judge’s decision is a reminder that both the law and justice are on our side. We’ve already seen the courts rule in favor of Jane Doe, and today justice prevailed for two more young women like her,” she said in a statement. “Unfortunately, the Trump administration has shown no indication that they’ll abandon their cruel and dystopian crusade to block abortion access for some of the most marginalized people in our country. We’re prepared to keep fighting for as long as we need to.”
According to the government’s opposition brief, Roe is about 10 weeks pregnant, while Poe is roughly 22 weeks into her pregnancy and quickly approaching the cut-off for an abortion in the state where she is being held.
Their locations are both under seal by the court.
Flentje said that because Roe is not far into her pregnancy, she has time to spare to allow the Office of Refugee Resettlement to secure her sponsor. When pressed by Chutkan, Flentje acknowledged the proposed time frame would require all aspects of the sponsorship process to go smoothly.
In her order granting the temporary restraining order, Chutkan pointed to the government’s acknowledgment in court that the sponsor controls the timing of the sponsorship approval process. Being able to complete it within two weeks, as the government admitted in court, depends on the absence of any problems surfacing with the required background check and home visit.
Amiri had called the push to secure a sponsor “absurd,” and in court called the government’s claim that it can complete the process in two weeks “illusory.”
Flentje also said the Department of Health and Human Services has determined it’s not in Poe’s best interest to have an abortion. The attorney claimed Poe spoke as recently as Dec. 4 about wanting to carry her pregnancy to term, only to change her mind last week.
Amiri said she does not know whether that assertion is true.
“A member of my team met twice with her on Friday and she was adamant in her decision [to have an abortion],” Amiri said in an interview after the hearing.
Chutkan skewered Flentje for focusing on Poe’s lack of sponsorship.
“So she has no sponsor but a decision has been made that she can’t terminate her pregnancy,” Chutkan said.
“How does that overcome her constitutional right?”
A representative for the Department of Health and Human Services declined to shed light about how it determined Poe’s suitability to undergo an abortion.
Flentje said he believes Poe has seen a doctor, but indicated those facts are not yet in the record.
Chutkan ordered the government to provide those details by 3 p.m. Monday and issued her order around 6 p.m.
The ACLU had fought in Doe’s case to strike down the U.S. policy of refusing to facilitate abortions for unaccompanied minors. At Monday’s hearing, Amiri urged Chutkan to certify a class of affected individuals.
The attorney said in an interview after the hearing the government’s policy is developing into a pattern.
“We saw that with Jane Doe, who was the first one and we knew that there were more,” Amiri said. “And that’s why we filed a class action and are trying to get the policy struck down. So now these two additional minors have come forward, and so we know that there are likely more to come as well.”
Locating these minors is difficult, Amiri added.
“We found out about these minors very recently,” she said. “We had to move very quickly. And so it’s not something that we have a lot of advance notice about.”
A representative at the Health and Human Services Administration for Children and Families expressed disappointment with the order.
“We are deeply disappointed in the decision to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary. A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor,” the representative said in an email. “HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions.”
The ACLU has rejected the option of voluntary departure, saying minors should not have to forfeit their immigration chances to get medical care. The group noted that Doe for example had a substantial claim for special immigrant juvenile status “based on the abuse she has suffered at the hands of her parents and the danger she faces if she returns home.”
Chutkan stayed her order for 24 hours to allow the government to seek emergency relief from the D.C. Circuit.