An undocumented immigrant teen asking to end her pregnancy is entitled to seek an abortion without delay, according to a ruling Tuesday from a federal appeals court in Washington.
The order from the full U.S. Court of Appeals for the D.C. Circuit — without oral argument — reverses a decision last week from a three-judge panel of the same court that would have postponed the abortion for the 17-year-old who is being held in federal custody in Texas. The Trump administration had denied the teen’s request, citing the government’s new policy of refusing to “facilitate” abortions for unaccompanied minors.
The timeline was at issue because the teenager is more than 15 weeks pregnant and Texas law bans most abortions after 20 weeks.
The 6-3 ruling sent the case back to a lower court judge who within hours of the decision had ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.
“Today’s decision rights a grave constitutional wrong by the government,” D.C. Circuit Judge Patricia A. Millett wrote.
In the dissent were the court’s three active judges nominated to the bench by Republican presidents. Judge Brett M. Kavanaugh said the majority has “badly erred” and created a new right for undocumented immigrant minors in custody to “immediate abortion on demand.”
The Justice Department declined comment Tuesday about whether it would ask the Supreme Court to review the D.C. Circuit’s action.
Lawyers for the undocumented teenager asked the full appeals court to rehear her case after a divided panel gave the Department of Health and Human Services until Oct. 31 to find a sponsor to take custody of the girl.
The Central American teenager, identified only as Jane Doe in court papers, is being held in a government-funded shelter and has been seeking an abortion since late September. She learned she was pregnant shortly after crossing the border where she was detained.
Brigitte Amiri, the teen’s American Civil Liberties Union lawyer, said the girl’s court-appointed guardian was thrilled to tell her that she could terminate her pregnancy.
“We should never have had to go all the way to a full appellate court to say what we know is the law: that the government can’t ban abortion for anybody,” Amiri said.
The teenager’s case has raised tricky political questions involving immigration and abortion law. Democratic lawmakers have demanded answers from HHS Acting Secretary Eric Hargan about why the Trump administration quietly changed federal policy to deny access to abortions for minors in custody.
Scott Lloyd, director of the Office of Refugee Resettlement, the HHS agency that oversees the minors, said in a March email that government-funded shelters caring for the minors “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
Lawyers for the teenager argued the government was violating the girl’s constitutional right to obtain an abortion. The teenager has already received permission from a Texas judge to bypass the state’s parental consent requirement and terminate her pregnancy.
“Her capacity to make the decision about what is in her best interests by herself was approved by a Texas court ,” Millett wrote Tuesday.
Millett's position was joined by five other judges nominated to the bench by Democratic presidents. Judge Cornelia T. L. Pillard was recused because her spouse is the ACLU's legal director, according to the ACLU.
In last week's 2-1 decision, Kavanaugh and Henderson gave HHS until Oct. 31 to find a sponsor to take custody of the girl. That would allow her to be released and to seek the abortion.
In his dissent Tuesday, Kavanaugh said the government should be able to “expeditiously transfer” the teenager to a sponsor — typically a relative or friend — who could help her make a major life decision. The government, Kavanaugh wrote, “is merely seeking to place the minor in a better place when deciding whether to have an abortion.”
Government lawyers had said prospective sponsors have inquired about the teenager. But the girl's lawyers on Sunday filed a sworn statement from the former ORR director during the Obama administration who described the lengthy process of vetting sponsors.
Millett disputed the idea that the sponsorship process would have gone quickly.
"There is nothing expeditious about the prolonged and complete barrier to [the teenager's] exercise of her right to terminate her pregnancy that the panel order allowed the government to perpetuate."
Government officials have also said they are not blocking the girl from getting an abortion because she could voluntarily return to her home country. The government, however, acknowledged that abortion is illegal in the girl's home country, which is not identified in filings.