Whether an undocumented teen in Texas can get a scheduled abortion remains up in the air after the U.S. Court of Appeals heard oral arguments Friday morning from the federal government and the American Civil Liberties Union in Washington, D.C. The three-judge panel has agreed to consider the Trump administration's request to stay a Wednesday ruling that allowed the teen to access abortion services.
The pregnant undocumented teen, known in court filings as Jane Doe, is at the center of a legal dispute over whether unaccompanied immigrant minors have the right to an abortion in the United States.
According to the American Civil Liberties Union, the Trump administration is forcing Doe to continue carrying her pregnancy against her will and time is running out. Doe is 15 weeks pregnant, and under Texas law she cannot terminate her pregnancy after 20 weeks.
In Friday's hearing, the federal government lawyer said that the Trump administration is not denying Doe's constitutional right to an abortion.
"We are not taking a position on that," said attorney Catherine Dorsey, who went on to argue that what is actually blocking Jane Doe's abortion is her status as a minor under federal custody and that the government is not required to facilitate her abortion.
"What's happening here is the government refusing to facilitate the abortion and that is not an undue burden," said Dorsey.
Though Doe's home country was not revealed, lawyers at the hearing spoke as if legal access to an abortion was not available there.
“We are not putting an obstacle in her path,” Dorsey said. “We are declining to facilitate an abortion.”
Meanwhile, the plaintiffs argued that the federal government is effectively vetoing Doe's constitutional rights, given that she is entitled to an abortion in the United States regardless of her immigration status.
"There's no reason why her immigration status should diminish her constitutional rights," said Brigitte Amiri, the ACLU's attorney, adding that, under previous Supreme Court rulings, "the government may not ban abortion for anyone."
Following the hearing, the three-judge panel will decide if Jane Doe can have the abortion she has scheduled for Friday afternoon. Judge Brett Kavanaugh said the judges would announce their decision “soon enough,” and remarked that the court was being pushed to quickly "make a sweeping constitutional ruling one way or another."
The teenager completed her pre-abortion counseling appointment required by Texas law on Thursday, according to Susan Hays – legal director of Jane's Due Process, a nonprofit that provides legal representation for pregnant minors in Texas – who is working on the case. That appointment came after a federal judge in Washington, D.C., ruled Wednesday that Doe had the right to access abortion services and that she should be transported to her abortion appointments "promptly and without delay."
The federal government followed by appealing to the U.S. Court of Appeals in a motion that argued "the district court abused its discretion in granting such so-called temporary relief." The attorneys said that Doe "still has a number of weeks in which she could legally and safely obtain an abortion" and asked for more time for her claim to be adjudicated before the abortion makes the decision irreversible.
Doe already has the court authorization required for the procedure itself. Under Texas law, minors need their parents' permission or a court order to get an abortion.
But the federal Department of Health and Human Services is not allowing Jane Doe to leave the shelter where she is living under federal custody in order to get the abortion. The Office of Refugee Resettlement – a sub-division of HHS which oversees the shelter – was also refusing to transport the minor themselves. "They are effectively holding her hostage," said ACLU attorney Brigitte Amiri in an interview with The Texas Tribune.
The judges at Friday's hearing seemed especially interested in exploring the option of finding a qualified sponsor for Doe who could then address the issue of whether she should get an abortion. Kavanaugh said he was “concerned” this option had not been explored more.
“We should avoid constitutional issues if possible,” Judge Karen Henderson said.
Both parties mentioned that more than one attempt to find a sponsor have already fallen through. Lawyers with the ACLU stressed that the sponsorship process takes too much time given the tight timeline for Doe to get the requested abortion.
The panel of judges also questioned why Doe's situation as a minor should be handled differently than that of an adult women who, if detained by Immigrations and Customs Enforcement, would be able to access abortion services.
Ahead of Friday's hearing, Texas Attorney General Ken Paxton filed an amicus brief with the D.C. Circuit – his third in the case – in support of "a federal government policy that prevents unaccompanied unlawfully-present minor aliens from having abortions," according to a news release issued by his office Thursday.
"The D.C. Circuit made the right decision to temporarily stay the district court’s order, which contradicts U.S. Supreme Court precedent and harms the public interest because it effectively creates a right to abortion for anyone who entered the U.S. illegally, no matter how briefly,” Attorney General Paxton told the court, according to the release. “Texas must not become a sanctuary state for abortions.”
Attorneys general of Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma and South Carolina joined Texas in the brief.
The ACLU is hopeful the judge's ruling will address not just Doe's situation but the right of all undocumented minors to obtain an abortion under the constitution.
“This is much bigger than Jane Doe," Amiri told reporters following the hearing.
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