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, Friday, Oct. 20, 2017. (AP Photo/J. Scott Applewhite)
Chuck Lindell, Austin American-Statesman
A sharply divided federal appeals court, acting with uncommon speed, cleared the way Tuesday for a teenage immigrant to have an abortion while in federal custody in Texas.
The 6-3 decision by the U.S. Circuit Court of Appeals for the District of Columbia, made without hearing oral arguments and only two days after an appeal by lawyers for the 17-year-old immigrant, reversed a ruling from Friday that would have delayed an abortion until at least next week.
The decision returned the case to U.S. District Judge Tanya Chutkan, who issued an order directing federal officials to “promptly and without delay” allow the teenager to have the abortion she has been seeking for about a month.
Abortion opponents quickly pressed the Trump administration to appeal the ruling in hopes of protecting a policy that denies access to abortion for minors in federal custody after illegally crossing the southern border without a parent.
Lawyers for the Central American teen, identified only as Jane Doe or JD, praised the ruling but criticized the need to rely on the courts to protect her right to an abortion.
“Every step of the way, the Trump administration has shown their true colors in this case,” said Doe’s lead lawyer, Brigitte Amiri with the American Civil Liberties Union. “It’s clear that their anti-woman, anti-abortion, anti-immigration agenda is unchecked by basic decency or even the bounds of the law.”
Tuesday’s decision by the full appeals court overturned Friday’s ruling by a three-judge panel of the court. That ruling had given Trump administration officials until Oct. 31 to find an adult sponsor to take custody of the teen, a move that presumably would have allowed her to have an abortion without violating a Trump administration rule requiring childbirth to be promoted over abortion for minors in federal custody.
Doe’s lawyers had argued that the delay unnecessarily put her physical and mental health at risk for no viable reason because it was highly unlikely that an appropriate sponsor could be identified, investigated and approved before the Oct. 31 deadline.
Tuesday’s ruling was split along partisan lines. All six of the judges who favored Doe had been appointed by Democratic presidents, while the three dissenting judges were named by Republicans.
All three judges on the original panel issued statements accompanying the ruling.
Writing in dissent, Justice Karen LeCraft Henderson said the court majority “plows new and potentially dangerous ground” by mistakenly concluding that Doe, as a minor in the country illegally, had a constitutional right to an abortion.
“Under my colleagues’ decision, it is difficult to imagine an alien minor anywhere in the world who will not have a constitutional right to an abortion in this country,” Henderson wrote.
Justice Brett Kavanaugh, in a dissent joined by Henderson and Thomas Griffith, said the majority erroneously found “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
“The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence,” Kavanaugh wrote, arguing that the delay to find a sponsor to take custody of Doe represented the best way to resolve the controversy.
Justice Patricia Millett, who had opposed the delay to find a sponsor, scoffed at the arguments.
“It is unclear why undocumented status should change everything,” she wrote. “Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby.”
Doe’s case was closely watched for its potential effect on two contentious issues — access to abortion and immigration policy — and much of the legal fight focused on who is to blame for the situation.
Lawyers for Doe blamed Trump administration officials for keeping her in a state of forced pregnancy by refusing to let her travel to clinic appointments — in essence, holding the 17-year-old hostage to their belief that abortion is wrong.
By advancing a policy that forbids any action that helps in-custody minors get an abortion, administration officials are placing an improper obstacle to a constitutionally protected procedure, the ACLU lawyers argued.
U.S. Department of Justice lawyers say Doe is to blame for any obstacles in her path.
The teen, they argued, is in federal custody because she entered the United States illegally — a situation that she is free to end by voluntarily returning to her home country, ending her custody and any restrictions or obstacles it brings. By choosing to remain in custody, Doe also remains subject to Trump administration policies that promote childbirth over abortion, the lawyers said.
“Any alleged ‘obstacle’ to Ms. Doe’s ability to obtain an abortion is by her own choice,” government lawyers told the appeals court.