Constitutional Law

DC Circuit grants time to find sponsor for immigrant teen so abortion can be performed

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D.C. Circuit

E. Barrett Prettyman Federal Courthouse in Washington, D.C., home of the U.S. Court of Appeals for the D.C. Circuit. Photo by By AgnosticPreachersKid, via Wikimedia Commons

Updated: A federal appeals court has found a way to allow an abortion for a pregnant teen immigrant who is in the country illegally without ordering the government to take her from federal custody to an abortion provider.

In a 2-1 decision, U.S. Court of Appeals for the D.C. Circuit on Friday set an Oct. 31 deadline for a sponsor to be found for the 17-year-old girl and for the government to release her to the sponsor’s custody. By government agreement, when the girl is released to the sponsor, she can obtain an abortion, according to the order (PDF) released late Friday afternoon.

“We note that the government has assumed, for purposes of this case, that [the girl]—an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States—possesses a constitutional right to obtain an abortion in the United States,” says the order written by Judge Brent Kavanaugh.

The girl’s lawyers on Sunday asked the full appeals court to hear the case, the Washington Post reports.

The girl, who is represented by the American Civil Liberties Union, has been in the United States since Sept. 11. She had obtained permission from a Texas judge to have the abortion and planned to cover expenses on her own or through the help of her court-appointed guardian. The government had taken her to a Christian center for counseling against an abortion.

A federal judge had issued a temporary restraining order Wednesday that required the government to take the teen, identified as Jane Doe, for an abortion by Saturday. The D.C. Circuit stayed that order Thursday. The order on Friday makes it possible for the girl to have an abortion without the government facilitating the procedure, the Washington Post reports. Courthouse News Service and the National Law Journal (sub. req.) also have stories.

The girl is 15 weeks pregnant, and Texas law bans most abortions after 20 weeks.

The D.C. Circuit order says that if a sponsor isn’t found and the girl isn’t released to a sponsor’s custody, the district court may re-enter a temporary restraining order or other appropriate order, and the government or the girl may immediately appeal.

Judge Karen Henderson joined Kavanaugh’s decision, but the order said Henderson would file a separate statement with her reasoning within five days.

Judge Patricia Millett wrote a sharp 10-page dissent (PDF) in the case. Texas law permits the girl to terminate the pregnancy, she wrote, and none of the federal government’s reasons for making her continue the pregnancy “remotely qualifies under the Constitution, or … even makes sense.”

“The government says it does not want to “facilitate” the abortion. But there is nothing for it to facilitate,” Millett writes. The girl’s guardian and attorneys would pay for the procedure, her guardian ad litem would transport her to and from the procedure, and a willing government contractor would handle the logistics and paperwork of transferring her to the custody of her guardian ad litem. “The Department of Health and Human Services’ only task is to refrain from barring its contractor from allowing J.D. to receive the medical care.”

The girl has already been forced to carry on with the pregnancy for almost four weeks, and will now have to do so for still more weeks as a result of this order calling for a sponsor to be in place, Millett wrote. “To force her to continue the pregnancy just in case someone else comes along with whom [she] might also consult is to impose layers and layers of consent-style barriers to [her] choice, contrary to settled Supreme Court precedent.”

Updated at 10:58 p.m. to note Millett’s dissent. Updated on Oct. 23 to report on the request for an en banc rehearing.

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