Constitutional Law

Immigrant teen at center of court case gets abortion; broader issue is still pending

  • Print.

An immigrant teen at the center of a high-profile court case has received an abortion after an en banc federal appeals court ruled against the government.

The girl, who was in the country illegally, had the abortion early Wednesday, report the Washington Post, Politico, the Texas Tribune and a press release by the American Civil Liberties Union. She is being held in a federal shelter in Texas.

The government had initially refused to take the 17-year-old girl for an abortion but had agreed to turn her over to a sponsor, if one could be found. A panel of the U.S. Court of Appeals for the District of Columbia Circuit had agreed to that compromise on Oct. 20 and gave additional time for a sponsor to be found.

But the en banc appeals court overturned the panel decision late Tuesday and reinstated an order requiring the government to take the teen for an abortion. The en banc court sent the case back to U.S. District Judge Tanya Chutkan to set a new deadline for the abortion. Chutkan ordered the government to allow the abortion “promptly and without delay.”

Government lawyers did not immediately ask the U.S. Supreme Court to stay the en banc ruling on Tuesday, perhaps miscalculating how quickly the teen could receive an abortion, according to the Washington Post.

Still pending is the broader legal battle over whether minors who are in the country illegally can have abortions while in federal custody, according to the Washington Post and Politico. The American Civil Liberties Union is seeking an injunction (PDF) that would prevent the government from interfering with access to abortions by other minors in the same situation as the immigrant teen.

The government had never argued that the girl’s status as an immigrant who entered the country without documentation eliminated her constitutional right to an abortion. Instead the government said it did not have to facilitate the abortion.

Judge Patricia Millett, who had dissented from the Oct. 20 panel decision, wrote a concurring opinion that supported the en banc decision on Tuesday. “Fortunately, today’s decision rights a grave constitutional wrong by the government,” Millett wrote.

Millett said the government had “bulldozed over constitutional lines” when it argued the girl couldn’t obtain an abortion unless she returned to her country or found a sponsor, which is akin to a foster parent. Millett said the government was wrongly imposing the burden on the girl to find her own way out of detention “like some kind of legal Houdini.”

Three judges dissented from the en banc decision. Judge Brett Kavanaugh said in his dissent that the majority decision was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Give us feedback, share a story tip or update, or report an error.