The case of a 17-year-old migrant held in federal detention and blocked from having an abortion reached a federal appeals court Friday, with skeptical judges probing the Trump administration’s positions on the constitutional rights of undocumented immigrants.
The young woman, called Jane Doe to protect her identity, has been detained in a shelter in Texas since she crossed the border illegally in September. She is now 15 weeks pregnant and wants to get an abortion, but the Office of Refugee Resettlement, now headed by a lifelong anti-abortion activist, is blocking her from getting one.
In a class-action suit that could become a significant test of abortion rights, the ACLU says that the office’s policy is an unconstitutional infringement of the young woman’s rights.
The administration argues that it has no obligation to help her get an abortion while she is in detention, saying she could get out of the facility if she were willing to leave the country. Lawyers conceded, however, that Doe’s home country, which has not been identified, does not allow abortions.
Brigitte Amiri, a senior staff attorney for the ACLU, said the young woman should not be forced to give up her rights to an immigration hearing in order to obtain an abortion. “What they are actually doing is supplanting J.D.’s decision that an abortion is in her best interest,” she said. “We’re talking about whether the government can veto the decision.”
Earlier this week, a federal judge in Washington ordered that officials allow the woman to go to an abortion clinic, but the D.C. Circuit Court of Appeals issued a stay to hear arguments.
The case has become a flashpoint in the wars over abortion. On Friday morning, activists with Planned Parenthood demonstrated outside the Health and Human Services building, waving signs saying, “I am Jane Doe” and “Justicia por Jane Doe.”
The Texas Catholic Conference of Bishops issued a statement supporting the administration’s position: “No one — the government, private individuals or organizations — should be forced to be complicit in abortion,” the statement says.
The resettlement office takes custody of undocumented minors who cross the border illegally and places them with a network of shelters run by churches and social organizations. The Catholic Church is the biggest provider in the network. The 17-year-old, however, is not in a church-affiliated shelter.
The new director of the refugee office, Republican lawyer E. Scott Lloyd, has spent most of his professional career advocating for restrictions on abortion and contraception. In March, the office instructed shelters that women were not permitted to get abortions without the director’s written permission. Since then, he has personally tried to convince teenagers in the shelters to not get abortions, court papers show.
Under questioning by both a Republican and Democrat on the three-judge panel, a Justice Department lawyer acknowledged inconsistencies in U.S. policy, which allows access to abortions for adult women in both federal prison and immigration detention.
Judge Brett M. Kavanaugh, appointed by President George W. Bush, pointed out that if Doe had crossed the border and been jailed for a crime, she’d be permitted to get an abortion.
The lawyer, Catherine Dorsey, tried to avoid taking a position on whether undocumented immigrants are covered by the Constitution’s guarantee of a woman’s right to abortion, eventually surrendering the point.
“Is there any way it’s not relevant?” asked Judge Patricia Millett, an appointee of President Obama.
Even if Doe has those rights, “she can file a request for voluntary departure at any time,” Dorsey said.
Judges on the panel made it clear that they hoped to avoid making a decision in a case that could have significant ramifications on abortion law. Kavanaugh repeatedly pressed both lawyers on whether the conflict could be solved by moving the young woman from the shelter to the custody of a family member or other sponsor.
“We’re being pushed in the span of 24 hours to make a sweeping constitutional ruling,” he said. The third judge on the panel, Karen Henderson, also is a Republican appointee.
But lawyers said the sponsor-screening process can be long, and time is running short: Texas bans abortions after 20 weeks.