The D.C. Circuit Court of Appeals on Friday appeared unconvinced the government can block an undocumented 17-year-old girl who is in federal custody from getting an abortion.
The government argues the Department of Health and Human Services (HHS) can choose not to “facilitate” the teen’s access to an abortion. But Judge Brett Kavanaugh, a George W. Bush appointee, asked if women in federal prison, under Supreme Court precedent, have the right to obtain an abortion.
Department of Justice Attorney Catherine Dorsey said they do have the right because women in prison have no other way to obtain one. But the immigrant teen is different, Dorsey said, because she has the right to voluntarily leave the United States.
But Kavanaugh responded that, by Dorsey’s own definition, the government would be facilitating the abortion of prisoners.
The Trump administration has created a major controversy by appealing a district court decision ordering the government to “promptly and without delay” allow the undocumented teen, known in court documents only as Jane Doe, to visit an abortion provider near the Texas detention facility where she is being held.
The D.C Circuit Court of Appeals temporarily stayed that decision to hear the government’s appeal in arguments that were fast-tracked on Friday. The American Civil Liberties Union (ACLU) is fighting the government on the teen’s behalf, and stressed the need for the court to act quickly.
“What we’re talking about here is an unaccompanied immigrant minor, 17 years old, who’s been forced to remain pregnant against her will for three weeks because the government has blocked her abortion decision,” ACLU Attorney Brigitte Amiri told the court.
“Every day she remains pregnant takes a toll on her physical and emotional health,” she said.
Amiri said Jane Doe received a judicial waiver to the Texas state law requiring minors to obtain parental consent for an abortion on Sept. 25 and that she is now 15 weeks pregnant. Texas bans abortions after 20 weeks.
“If we get so far she’ll be forced to carry the pregnancy to term against her will,” Amiri said.
Kavanaugh asked whether the country Jane Doe came from allows abortions. Dorsey said that information is in a sealed record, but added that she believes it does not.
The court’s decision in the case could have a sweeping impact on the rights of immigrants in the U.S. illegally.
Students for Life of America fears the case will expand the right of abortion to all women in the U.S., whether they are citizens or not. In a statement, the group’s president, Kristan Hawkins, said the case would potentially create Roe v. Wade 2.0.
“The U.S. should not become the home of International Abortion Inc.,” she said. “There are many great reasons to immigrate to the United States, but abortion should not be one of them. Shame on the ACLU and abortion industry for putting the future of a teenager in a virtual tug-of-war in court as a ploy to get their hands on even more money.”
The judges wrestled with the constitutional questions at play in the case during Friday’s hearing.
Judge Karen LeCraft Henderson, a George H. W. Bush appointee who participated in the hearing by phone, asked Dorsey if illegal aliens have a constitutional right to an abortion.
Dorsey said the government hasn’t taken a position on that question and does not believe the court needs to decide the issue of whether she has a constitutional right through this case.
“What if a judge on this court or the next court thinks you need to have a position on that issue in order to resolve the case?” Kavanaugh asked.
Then the government would ask for additional time to brief their position, Dorsey said.
But Judge Patricia Millett, an Obama appointee, interjected.
“We don’t have time for that,” she said. “Should we just assume … there is that base constitutional right?”
Dorsey said she believes that would be fair, but even if she does have that right it would not require facilitation of the abortion.
Millett then asked Dorsey if she was waiving any argument to the contrary.
“Yes, your honor,” she said.
Kavanaugh then clarified if Dorsey was waiving the argument for the purposes of this litigation, including at the Supreme Court.
Dorsey said she’s not authorized to take a position. “We have not disputed it,” she said.
Kavanaugh appeared determined to find a narrow way to settle the issue. He repeatedly questioned whether Jane Doe could be released to a sponsor and then have an abortion.
“We’re being pushed in a span of 24 hours to make a sweeping constitutional ruling in one direction or another,” he said. “And when that happens the Supreme Court and this court look for — are there other avenues to resolving a dispute short of that, initially, and it seems to me in this case, if she were released to a sponsor, that would solve the government’s objection.”
Dorsey said HHS is willing to help Jane Doe find a sponsor, though she noted the process takes time. Amiri, meanwhile, noted that Jane Doe has already been in custody for weeks and has yet to be given a sponsor.
Kavanaugh asked whether “a little nudge from the court” would speed up the process.
In a rare move, D.C. Circuit Chief Judge Merrick Garland granted a request from Fix the Court to livestream audio of the arguments.
Before concluding arguments, Kavanaugh reminded the audience that judges on the court traditionally ask tough questions of both sides in a case.
“No one should assume that our questions represent our decision on the merits,” he said. “Our decision on the merits will be known soon enough.”