On Wednesday afternoon, a federal judge ordered the Trump administration to let an undocumented teenager being held in a federally funded Texas shelter terminate her pregnancy. By Wednesday evening, the Department of Justice had appealed the ruling to the U.S. Court of Appeals for the District of Columbia, urging the court to block the abortion. The DOJ argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to allow the minor to go to an abortion clinic. A panel of judges from the D.C. Circuit will hear arguments in the case on Friday morning.
The Trump administration has taken a keen interest in the reproductive capacities of undocumented, unaccompanied minors. Thousands of these young women are currently being held in federal shelters overseen by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that these shelters could no longer take “any action that facilitates” abortion for unaccompanied minors—including “scheduling appointments, transportation, or other arrangement”—without “direction and approval” from Scott Lloyd, the agency’s director.
Lloyd, a Trump appointee, is a longtime anti-abortion activist who has consistently refused to allow minors to terminate their pregnancies. Instead, he has ordered shelters to take these young women to “crisis pregnancy centers” where they are “counseled” out of their decisions. In at least one case, Lloyd personally called a pregnant minor to convince her that she should not get abortion. If these interventions fail and the minor still wants to terminate her pregnancy, ORR directs shelters to refuse to let them attend their appointments.
That’s what happened to Jane Doe, the plaintiff in the case at hand. An unaccompanied, undocumented minor, Doe discovered that she was pregnant after arriving in the U.S. She asked for an abortion but was taken to a crisis pregnancy center, where she was forced to undergo an ultrasound and listen as counselors tried to talk her out of her decision. Doe didn’t change her mind, but she faced another hurdle: In Texas, a minor cannot get an abortion without her parents’ consent, or the approval of a judge. So Doe went before a judge and acquired the necessary judicial bypass. The judge also assigned her an attorney and guardian ad litem.
Doe then scheduled a counseling appointment at an actual health care center, which Texas requires before a woman terminates her pregnancy. Her shelter declined to let her go to the scheduled appointment. Instead, a staff member called Doe’s mother and told her Doe was pregnant. Her attorneys, along with the American Civil Liberties Union, sued in a district court in Washington, D.C. (The venue is appropriate since Doe’s shelter was following rules promulgated by federal agencies located in the District.) U.S. District Judge Tanya Chutkan issued a temporary restraining order compelling Doe’s shelter to let her attend the required counseling session and obtain the procedure. The DOJ appealed, and the D.C. Circuit has temporarily stayed Chutkan’s ruling “pending further order of this court.”
As it did in district court, the Justice Department argues that undocumented immigrants do not have a constitutional right to access abortion. The agency asserts that only individuals with established connections to the United States receive the rights guaranteed by the liberty component of the Due Process Clause. An undocumented immigrant like Doe, the Justice Department claims, is undeserving of these constitutional protections. In district court, a DOJ attorney declined to say whether, in the government’s view, undocumented immigrants have any constitutional rights while residing in the U.S. (They do, including the right to an abortion.)
The Justice Department also argues that, even if Doe and others like her have a constitutional right to abortion access, the administration is not imposing an unconstitutional “undue burden” on that right. It claims that Doe has two ways to terminate her pregnancy: She can find “a suitable sponsor in the U.S. who is willing to take temporary custody” of her, or she can “voluntary depar[t] back to her home country.” There is likely no “suitable sponsor” for Doe; these sponsors are almost always family members, and none of Doe’s family lives in the U.S. So the government is essentially informing her that, in order to obtain an abortion, she must self-deport.
The panel of judges that will decide Doe’s fate on Friday includes one progressive judge, one severely conservative judge, and one moderate. If they reverse the lower court’s restraining order, Doe will presumably appeal to the Supreme Court, which will have to act quickly. She is currently 15 weeks pregnant, and Texas bans abortion after 20 weeks of pregnancy. Her time is running out.