On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, ruled 6–3 that Jane Doe, an undocumented unaccompanied minor in federal custody, must be allowed to obtain an abortion.
The Trump administration has prevented Jane Doe from terminating her pregnancy for more than a month. Doe is being held in a federally funded shelter in Texas, and the administration has decreed that these shelters may not allow undocumented minors to obtain abortions. Instead, the administration has decreed that these minors must be taken to “crisis pregnancy centers” to be counseled out of their decisions. Doe sued with the help of the American Civil Liberties Union, alleging a violation of her constitutional rights. The Department of Justice has made the incoherent assertion that Doe’s rights are not being violated because, if she really wants an abortion, she can simply self-deport—despite the fact that her home country bans abortion.
A district court ruled in Doe’s favor, but a panel of judges for the D.C. Circuit reversed. The full D.C. Circuit has now vacated the panel’s decision and remanded the case to the district court, with orders to protect Doe’s access to abortion. Because of the government’s dilatory tactics, Doe is now nearly 16 weeks pregnant; Texas bans abortion after 20 weeks, and few doctors perform abortions in the state. At oral arguments on Friday, her attorney indicated she could undergo the procedure on Thursday.
In its order, the D.C. Circuit explained that it agreed with Judge Patricia Millett’s dissent from the original panel decision crafted by Judges Brett Kavanaugh and Karen L. Henderson. Millett penned a sharp concurrence to Tuesday’s order, responding to the dissenters and reiterating the egregiously unconstitutional nature of the government’s actions. “Fortunately, today’s decision rights a grave constitutional wrong by the government,” Millett wrote:
Remember, we are talking about a child here. A child who is alone in a foreign land. A child who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant. J.D. then made a considered decision, presumably in light of her dire circumstances, to terminate that pregnancy. … The government bulldozed over constitutional lines ... [and] identified no constitutionally sufficient justification for asserting a veto right over J.D. and Texas law. ... The court today correctly recognizes that J.D.’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her.
Both Kavanaugh and Henderson dissented from Tuesday’s order, for different reasons. Henderson wrote that an undocumented minor like Doe “is not a person in the eyes of our Constitution,” meaning she has no rights, let alone the right to an abortion. This argument strongly echoes that made in the notorious Dred Scott decision. Kavanaugh, joined by Henderson and Judge Thomas B. Griffith, complained that “the majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.” He wrote that the majority had shortchanged the government’s interest in forcing Doe to continue carrying her unwanted pregnancy.
The Justice Department has not yet stated whether it will appeal Tuesday’s decision to the Supreme Court.