Constitutional Law

DC Circuit rules against blanket ban on abortions for unaccompanied immigrant teens in US custody

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A federal appeals court ruled Friday against the government’s blanket ban on access to abortion for immigrant minors in the government’s custody after entering the country illegally without a parent or guardian.

In a per curiam opinion, the U.S. Court of Appeals for the District of Columbia Circuit upheld an injunction barring the government from carrying out the abortion ban. The National Law Journal, the Associated Press, the Washington Post and BuzzFeed News have coverage.

“We are not free to dilute a constitutional right recognized by controlling Supreme Court precedent—a right the government affirmatively assumes unaccompanied minors here have—so that others will be dissuaded from seeking a better life in this country,” the appeals court said.

The court remanded, however, for “further explication” of the district judge’s decision to bar disclosure of pregnancies and abortion decisions to parents and others.

The court said it was unanimous in holding that the blanket abortion ban was inconsistent with Supreme Court precedent. Judges Sri Srinivasan and Robert Wilkins were on the panel and did not write separate opinions.

The appeals court said its decision does not amount to allowing “abortion on demand.”

“With or without the preliminary injunction,” the appeals court said, “an unaccompanied minor can obtain an abortion only if state law permits it.”

The court also said the government could try to devise a narrower abortion policy than a blanket veto and then test that policy in the courts. “But until then,” the appeals court said, “the district court is not obligated to undertake the task of chiseling from the government’s across-the-board ban a different policy the government never identified, endorsed or defended.”

Judge Laurence Silberman said in a dissent that he wouldn’t have certified the case as a class action, and he thought the case is moot.

Because he lost on those grounds, Silberman said the majority should have considered narrowing the injunction to allow the minor to be transferred to a sponsor before obtaining the abortion, as allowed by a prior decision in the case written by then-Circuit Judge Brett M. Kavanaugh.

The latest decision came in a class action that was certified after the initial plaintiff obtained a restraining order from District Judge Tanya Chutkan that allowed the abortion. The D.C. Circuit had granted the government time to find a sponsor in the opinion by Kavanaugh. The full D.C. Circuit reinstated Chutkan’s order, and the teen had the abortion.

The plaintiffs were represented by Brigitte Amiri, a deputy director at the American Civil Liberties Union’s Reproductive Freedom Project. “We are relieved that today’s ruling continues to prevent the policy from taking effect while the case proceeds, and allows the case to proceed as a class action as we continue this fight,” Amiri said in a statement.

The case is JD v. Azar.

See also: “Federal judge’s order to allow abortion for immigrant teen in the country illegally is stayed” “Judge permits two more immigrant teenagers to have abortions while in federal custody”

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