WASHINGTON – The U.S. Court of Appeals for the D.C. Circuit ruled Friday that an undocumented teenager in Texas is not allowed to immediately have the abortion she requested. The Court gave the federal government until Oct. 31 to find a sponsor to take custody of the teen and take her to an abortion clinic to have the procedure.
The pregnant, undocumented teen, known in court filings as Jane Doe, was scheduled to terminate her pregnancy Friday. Although the court recognized her right to have an abortion, the ruling delays the procedure. Doe is 15 weeks pregnant; under Texas law, she cannot terminate her pregnancy after 20 weeks.
In the ruling, the court also noted that the federal government assumed that Doe has the "constitutional right to obtain an abortion in the United States."
"Justice is delayed yet again for this courageous and persistent young woman," said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project in a news release after the ruling.
"She continues to be held hostage and prevented from getting an abortion because the Trump administration disagrees with her personal decision.”
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.
Friday's ruling gives the Department of Health and Human Services until Oct. 31 to find Doe a sponsor who can handle her request for an abortion instead of the federal government.
“The Government argues that this process by which a minor is released from HHS custody to a sponsor does not unduly burden the minor’s right under Supreme Court precedent to an abortion. We agree, so long as the process of securing a sponsor to whom the minor is released occurs expeditiously,” the ruling stated.
The Court heard oral arguments Friday morning from the federal government and the ACLU.
The issue of finding Doe a sponsor was explored at length by the three-judge panel at Friday's hearing. Judge Brett Kavanaugh said he was “concerned” this option had not been explored more. Transferring custody of Doe from the federal government to a sponsor would allow the court to avoid making a blanket ruling on an undocumented minor's right to an abortion when under federal custody.
“We should avoid constitutional issues if possible,” Judge Karen Henderson said during the hearing.
Susan Hays, an attorney with Doe's legal team and legal director of Jane's Due Process, a nonprofit that provides legal representation for pregnant minors in Texas, said the ruling ignores the realities of Doe's situation as 15 weeks pregnant.
“They are avoiding the abortion issue. So they are saying, 'Find her a sponsor, she’s got plenty of time,' but she doesn’t,” Hays said.
Both parties mentioned at the hearing that more than one attempt to find a sponsor had 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 court's ruling also states that if a sponsor is not secured and Jane Doe released by the Oct. 31 deadline, "the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the Government or J.D. may, if they choose, immediately appeal."
Judge Patricia A. Millett dissented to the ruling. “Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason,” she wrote.
During Friday's hearing, the lawyer for the federal government maintained 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 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."
The panel of judges 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.
In a news release following the ruling, Texas Attorney General Ken Paxton said he was disappointed with the decision. Paxton had previously filed an amicus brief with the court defending the Trump administration's policy of preventing abortions for unaccompanied aliens.
“Unlawfully-present aliens with no substantial ties to the U.S. do not have a right to abortion on demand. Texas must not become a sanctuary state for abortions,” Paxton said in the news release.
Attorneys general of Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma and South Carolina joined Texas in the brief.
The teenager, who had an abortion scheduled for Friday afternoon, completed her pre-abortion counseling appointment required by Texas law on Thursday, according to Hays. 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. That motion prompted Friday's ruling.
Doe already got court authorization required for the procedure itself on Sept. 25. 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.
After Friday's ruling, Amiri reiterated that this case is bigger than Jane Doe.
“Our client and women across this country should be able to access a safe, legal abortion without federal officials stepping in to interfere. We are investigating all avenues to get justice for her,” she said in a news release.
Read related Tribune coverage:
Whether an undocumented Texas teen can get a scheduled abortion Friday remains up in the air ahead of a court hearing before the U.S. Court of Appeals. [Full story]
A federal judge ruled Wednesday that a pregnant, undocumented teenager under federal custody in Brownsville has the right to access abortion services in Texas. [Full story]
A federal court has refused to hear the case of a pregnant 17-year-old undocumented immigrant at the center of a legal dispute over whether unaccompanied immigrant minors have the right to an abortion in the United States. [Full story]