An appeals court Friday heard arguments on whether a federal refugee agency can block a minor in its custody from having an abortion.
UPDATE: Late Friday afternoon, the D.C. Circuit Court of Appeals vacated an earlier ruling ordering the federal government to allow Jane Doe to have an abortion. Today’s decision effectively bars Doe from terminating her pregnancy, at least for now. Instead, the court is giving the federal government until October 31 to find Doe a sponsor to remove her from the custody of the Office of Refugee Resettlement. If she is not released by then, the ruling says, the court can issue a new order that either side may appeal.
Doe’s attorneys say they’ve already been working for weeks to find her a sponsor, a process they say could take months. By the end of October, Doe will be 17 weeks pregnant, just three weeks shy of the limit in Texas. At that point, litigation can begin again, which could push Doe even further into her pregnancy and make an abortion procedure more complicated.
ORIGINAL: The Trump administration is presenting an undocumented teen in its custody who wants an abortion with three options: Find a sponsor in the next few weeks, self-deport or carry the pregnancy to term. Unless a federal court intervenes soon, the girl, who is in a shelter in the Rio Grande Valley, could be forced by her supposed protectors to have a child she doesn’t want.
At an emergency appeals court hearing on Friday morning, attorneys for the Office of Refugee Resettlement (ORR) argued that the federal agency isn’t violating the rights of Jane Doe, as the 17-year-old Central American girl is known in court, by refusing to allow her to get an abortion. The girl could always go back to Central America or find a sponsor to take her in, Department of Justice attorney Catherine Dorsey said.
“We’re not putting an obstacle in her path, we’re just declining to facilitate the abortion,” said Dorsey.
Abortion rights groups claim the refugee agency, which is run by a Trump appointee who personally counsels girls against getting abortions, is effectively holding Doe hostage. At 15 weeks pregnant, she is running out of time to get an abortion in Texas, which bans the procedure after 20 weeks. State lawmakers have recently imposed additional hurdles, such as a mandatory sonogram and waiting periods.
The Friday hearing comes just two days after a federal judge issued an emergency order allowing Doe to get an abortion “promptly and without delay.” Doe was able to go to her state-mandated counseling appointment Thursday, but was blocked from getting her abortion on Friday, when the appeals court decided to hear the case.
Doe’s attorneys said they’ve been trying to find a sponsor for her since she was put in ORR custody six weeks ago. But it’s a lengthy process involving vetting and home visits that could take months. Her advocates say they have just weeks, if that, to ensure Doe obtains her abortion because of the tight timeframe and restrictions on abortion in Texas.
The suggestion that she can simply return to her home country is needlessly cruel, they say. Dorsey acknowledged Friday that she thinks abortion is illegal in Doe’s undisclosed country. And Doe would be returning to abusive parents who allegedly beat her sister so badly when they found out she was pregnant that she had a miscarriage. They also have argued that the government has violated her rights by forcing her to go to a religiously affiliated crisis pregnancy center and get multiple sonograms. Doe’s attorneys also said that the shelter operators have asked her what she’s going to name her child, among other pressure tactics.
The DOJ has stunned legal observers by insisting that undocumented minors in federal custody simply do not have a constitutional right to an abortion. On Friday, Judge Brett Kavanaugh, who was appointed by George W. Bush, pressed Dorsey on whether undocumented immigrants have constitutional rights at all. Dorsey refused to give a definitive answer. “Even if [Doe] has that constitutional right [to an abortion], it doesn’t require facilitation,” she said.
Doe’s attorneys say blocking her abortion is an unprecedented misuse of power by Scott Lloyd, the new ORR head appointed by Trump. While minors seeking an abortion can obtain a judicial bypass to get around Texas’ requirement of parental consent, there’s no “escape hatch” for the federal government’s restriction, said Brigitte Amiri, Doe’s attorney with the ACLU.
“There’s always some alternative mechanism for a minor to seek an abortion on her own without parent permission,” Amiri said in court Friday. “Here she has no option.”