Justice Department lawyers asked the U.S. Court of Appeals for the D.C. Circuit to reverse the order, saying the government should not have to “facilitate the termination of life through abortion.”
Attorneys representing the migrant teens said the administration is imposing an unconstitutional abortion ban on hundreds of pregnant girls in federal custody each year. They want the policy struck down completely.
Two of the three judges at oral argument Wednesday seemed skeptical of the government’s position that because teens in immigration custody can voluntarily return to their home countries, the government’s policy does not amount to an interference with or restriction on their abortion rights.
Judges Sri Srinivasan and Robert L. Wilkins suggested that the government’s option was a false choice because the constitutional right would disappear once the teen left U.S. soil.
“You’re not in the position to exercise that right anymore when you leave the country,” Srinivasan said.
Justice Department lawyers asked the appeals court for leeway to consider the particular circumstances of each teen in custody instead of allowing the case to move forward as an official class or group of litigants.
The injunction, the government said, runs counter to its interest in “preserving life” and having minors make abortion decisions in consultation with relatives — rather than while in government custody.
The government “doesn’t have to commit any resources to terminate a pregnancy,” Justice Department lawyer August E. Flentje told the court.
The three-judge panel signaled Wednesday that it may be inclined to send the issue back to a lower-court judge to narrow the challenge only to those teens requesting abortions. Judges Laurence H. Silberman and Wilkins suggested that there was no harm to those in custody who have not specifically expressed interest in terminating their pregnancies.
American Civil Liberties Union attorney Brigitte Amiri, who represents the teens, disagreed, calling the policy “extreme and extraordinary.” Limiting the scope of the lawsuit, she said, would make it more difficult for young migrants in custody to get information they need to decide whether to carry their pregnancies to term.
The ACLU identified at least 12 teens in custody who have sought information about or access to abortion services since the judge’s March order.
The explosive combination of issues reached the court last fall when a Central American teenager held in a government-funded shelter in Texas sought to end her pregnancy. A Texas judge determined that the 17-year-old was mature enough to decide to have an abortion without informing her parents.
But the government’s Office of Refugee Resettlement had adopted a policy of refusing to “facilitate” abortions for pregnant teens in its custody who crossed the border illegally.
The policy departs from that of the Obama administration, which did not block migrants in U.S. custody from having abortions at their own expense.
ACLU attorneys said in court filings that the government has tried to pressure girls to carry their pregnancies to term, including by withholding information about abortion, and has forced minors to visit religiously affiliated antiabortion crisis pregnancy centers. Teens also had been forced to disclose their pregnancies and abortion decisions to their parents and sponsors, according to the ACLU.
E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services, has personally intervened to try to block abortion services, court records show.
In her March order, U.S. District Judge Tanya S. Chutkan said that the refugee resettlement office’s policies and practices infringe on the constitutional rights of the teenagers in custody “by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden.”
The preliminary injunction has also barred the government from disclosing a teen’s pregnancy to anyone before or after an abortion without a sign-off from the teen, except in a medical emergency.
The case has taken on broader significance because of the initial involvement of Kavanaugh, a judge on the D.C. Circuit and now President Trump’s nominee to the high court. Kavanaugh was on the panel of judges reviewing the case when it first came to the appeals court last fall.
Since his nomination, the case has repeatedly been cited by abortion rights advocates as evidence that Kavanaugh would allow far more restrictions on abortion than the justice he would replace on the high court, Anthony M. Kennedy.
When the case initially was on appeal, Kavanaugh’s colleagues reversed his order that would have delayed a teen’s access to abortion services.
Judges Srinivasan and Wilkins voted last fall with the majority to allow immediate access. Kavanaugh dissented.
In his dissent, Kavanaugh accused the court of creating a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
The government’s filings ahead of oral argument Wednesday paraphrase and quote from Kavanaugh’s dissent, characterizing the injunction as a “radical extension of the Supreme Court’s abortion jurisprudence.”