UPDATE, Oct. 18, 2017: This story has been updated with the Justice Department’s plan to appeal the ruling.
A federal judge in Washington ruled today that the government must step aside and allow a migrant girl in federal custody to get an abortion “promptly and without delay.”
The ruling from U.S. District Judge Tanya Chutkan is the first test of a new Trump administration policy of denying abortion access for immigrant minors in federally funded shelters.
Today’s decision follows weeks of fighting in courts in Texas and California over whether one 17-year-old girl, referred to as Jane Doe, should be allowed to leave a shelter to end her unwanted pregnancy. Federal officials blocked Doe from two appointments at an abortion clinic, and every court delay has brought the girl, now 15 weeks pregnant, closer to the 20-week point after which Texas bans abortion.
In late September, a state court granted Doe’s request to get an abortion without her parents’ approval, according to the state’s judicial bypass provision. But officials at the federal Department of Health and Human Services’ Office of Refugee Resettlement blocked Doe from leaving the South Texas shelter where she’s being held, sending her instead to a religious crisis pregnancy center.
The government is required to provide health care for immigrant minors in its custody and has paid to help girls end pregnancies that resulted from incest or rape, an ever-present risk for those crossing north from Central America.
Since 2008, the Office of Refugee Resettlement has required that any minor in custody who wants an abortion secure written approval from the agency’s director. The agency’s director in the last years of the Obama administration, Robert Carey, recently told Politico that he signed such approvals three or four times a month.
But the Trump administration’s new hire for the office, Scott Lloyd, is a longtime abortion foe and has directed shelters to send minors to “pregnancy services and life-affirming options counseling” instead of abortion clinics.
Brigitte Amiri, the ACLU’s lead attorney on the case, has said the girl is “essentially being held hostage” while her pregnancy advances. Emails from Lloyd and his staff, which the ACLU has filed in court, document other cases in which girls have been sent to religious counseling after asking about abortion.
Chutkan did not elaborate on her reasoning in her order today. BuzzFeed News reported that at a hearing earlier in the day, Chutkan said she was “astounded” by the government’s arguments, including that if the girl really wanted an abortion, she could abandon her immigration case and return to her home country.
Texas Attorney General Ken Paxton and six of his Republican counterparts from other states repeatedly have sought to join the case on the government’s behalf, warning that Doe’s case could set a precedent establishing Texas as a “sanctuary state for abortions.” Paxton and his counterparts further worried that, should Doe be granted access to an abortion, “there will be no meaningful limit on the constitutional rights an unlawfully-present alien can invoke simply by crossing the border.”
In a briefing for the court Tuesday, the Justice Department echoed those arguments. Should the court side with Doe, the Department of Justice argued, it could create “incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody.”
During today’s hearing, according to BuzzFeed, Justice Department attorney Scott Stewart argued that Doe doesn’t have the same right to an abortion that a U.S. citizen has, because she is here illegally. When Chutkan asked Stewart whether he believed Doe had any constitutional rights, Stewart suggested it was an open question – prompting Chutkan to shake her head and laugh.
The ACLU’s complaint is a class action on behalf of other pregnant immigrants in Office of Refugee Resettlement custody who may seek an abortion, putting the agency’s new anti-abortion policies in line for a more general review from Chutkan.
The Justice Department has appealed Chutkan’s ruling. This sets up tight timing, given the dates mentioned in the judge’s order that Doe be allowed to visit a nearby abortion clinic this week.