Two undocumented teenagers seeking to end their pregnancies in the face of opposition from the Trump administration appear on track to obtain abortions without intervention from a federal appeals court.
The administration's new policy of refusing to facilitate abortions for pregnant minors in U.S. custody seemed to be headed to the Supreme Court early this week, with its politically volatile mix of questions involving abortion rights and illegal immigration.
Instead, Justice Department lawyers said Tuesday that they had just obtained the birth certificate of one of the pregnant teens at the center of the challenge. She is not a 17-year-old minor, the government said, but an adult at 19.
The 19-year-old, who is about 10 weeks pregnant, will be transferred to Department of Homeland Security custody "imminently," according to court filings. And as an adult in immigration detention, she can presumably obtain the abortion she has been seeking for nearly a month, according to government policies on detained adults described in court filings.
Separately, the Justice Department chose not to oppose a court order Monday — without disclosing why it was not challenging the order — allowing the second teen, who is 17, to end her pregnancy. She is close to 22 weeks pregnant and can now access abortion services.
Although the two individual cases appear to have been resolved, a larger challenge to the administration's new policy is pending in U.S. District Court in Washington and has implications for the hundreds of pregnant immigrant minors in federal custody in recent years.
That broader challenge was initially filed by a Central American teenager who terminated her pregnancy in October after a favorable ruling from the full U.S. Court of Appeals for the D.C. Circuit.
A separate administration request is pending at the Supreme Court to vacate the D.C. Circuit's judgment from October.
The Department of Health and Human Services is responsible for caring for unaccompanied minors taken into federal custody after crossing the border illegally. Since March, the agency's office of refugee resettlement has prohibited federally funded shelters housing the minors from taking any action that "facilitates" an abortion without sign-off from the director.
The government says in court filings that it "has strong and constitutionally legitimate interests in promoting its interest in life, in refusing to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody."
In contrast, adult women in immigration custody are not subject to the same constraints. The government arranges and pays for transportation for such procedures, according to court filings.
Lawyers with the American Civil Liberties Union say the administration's new policy imposes an "undue burden" on the constitutional right of teens in custody to choose to end their pregnancies and that the Trump administration is essentially vetoing that right.
Unaccompanied immigrant minors have a particular need for reproductive care, according to the ACLU, because a high number are victims of sexual assault immediately before, during and after they cross the border.
During the Obama administration, the government did not generally pay for abortions for teens in custody, but officials did not block immigrants in custody from having the procedure at their own expense.
Hours after a court hearing Monday, U.S. District Judge Tanya S. Chutkan ordered the government to allow access to abortion services for the two undocumented teenagers. The teen identified in court papers as Jane Poe is about 22 weeks pregnant and, her lawyers said, fast approaching the point in her pregnancy after which she will no longer be able to obtain an abortion.
Justice Department lawyer August Flentje told the judge that the director of the office of refugee resettlement, Scott Lloyd, had determined it was not in the "best interests" of Jane Poe to get an abortion, in part because she struggled with the decision. As recently as Dec. 4, according to court papers, she did not want an abortion and only last week changed her mind to proceed.
Late Monday, the Justice Department simultaneously asked the D.C. Circuit and the Supreme Court to intervene and halt Chutkan's ruling as it related to the 19-year-old, who is about 10 weeks pregnant. Government lawyers asked the high court for two weeks to vet and approve a potential sponsor to take custody of the pregnant teen and presumably facilitate the abortion.
In a filing Tuesday, the government said that the new information about the teen's age "will likely make the government's appeal and motion moot imminently."
A three-judge panel of the D.C. Circuit on Tuesday also asked government lawyers to provide a "precise timetable" for whether and when the 19-year-old, after being transferred to Homeland Security custody, "will be permitted to obtain an abortion."