Federal court: Trump can’t stop undocumented teen from getting abortion

An appeals court ruled Tuesday that an undocumented teenager held in Texas who was blocked from getting an abortion can have the procedure.

The U.S. Court of Appeals for the District of Columbia overruled a previous decision by a three-judge panel on the court that had prevented the 17-year-old from getting the abortion until a she has a sponsor.

In the previous ruling from Friday, the court gave the Department of Health and Human Services until 5 p.m. on Oct. 31 to find a sponsor. 

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Attorneys with the American Civil Liberties Union then sought to extend the appeal to the full D.C. Circuit.

The teenager, known in court documents only as Jane Doe, was estimated to be 15 weeks pregnant. Abortions are banned in Texas after 20 weeks.

The Trump administration had argued that federal policy does not require it to help “facilitate” an abortion, but Jane Doe’s lawyers argued the abortion would not be paid for by the government.

The court had previously said it agreed with the government’s argument that it does not violate Jane Doe’s right to an abortion under the Supreme Court’s precedent to transfer her to a sponsor, which would allow her to obtain an abortion, so long as it’s done expeditiously.

“If a sponsor is secured and J.D. is released from HHS custody to the sponsor, HHS agrees that J.D. then will be lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law,” the court said in the two-page order on Friday.

In the 6-3 ruling Tuesday, the court said it based its ruling on Judge Patricia Millett’s dissent in the court’s previous decision, in which she said forcing Jane Doe to continue an unwanted pregnancy in the hopes of finding a sponsor “sacrifices” her “constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”

Judges Brett Kavanaugh, Karen LeCraft Henderson and Thomas Giffith dissented from the court’s decision. 

In a statement, Kavanaugh said the court’s decision creates  “a new right” for unlawful immigrant minors who are being federally detained in the U.S. to get an “immediate abortion on demand,” an approach he said is “radically inconsistent with 40 years of Supreme Court precedent.”

“The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion,” he said. “But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor – ordinarily a family member, relative, or friend – before she makes that decision?”

Kavanaugh further noted that the government is not forcing Jane Doe to talk to the sponsor about her abortion decision or obtain their consent.

“It is merely seeking to place the minor in a better place when deciding whether to have an abortion,” he said. “I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched.”

Millett slammed Kavanaugh’s claim that the court is creating abortion “on demand.”

“Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree,” she wrote, noting that Jane Doe has already satisfied every requirement of state law to obtain the abortion.

Updated: 4:25 p.m.