The government is opposing the request.
The teenager, identified in court papers only as Jane Doe, is a Central American immigrant who realized she was pregnant around the time she was detained, shortly after crossing the border.
She is currently being held in a government-funded shelter in South Texas run by a private contractor and has been seeking an abortion since September. The teen has permission from a state judge to obtain an abortion, but Trump administration officials have refused to allow anyone to transport her to the clinic, including her court-appointed representatives or the shelter’s personnel.
All the government must do, lawyers wrote Sunday, “is to step aside and stop blocking the door.”
The government says it has a policy of “refusing to facilitate” abortions for undocumented minors. This marks a shift from the Obama administration, which allowed them. Her lawyers say the government is violating her constitutional right to choose an abortion.
The panel’s decision to allow the government to continue to block the abortion, lawyers argued in the petition Sunday, “violates decades of well-settled Supreme Court precedent that holds that the government may not impose an undue burden on — or, as in this extraordinary case, completely block — a woman’s ability to obtain an abortion.”
The Justice Department urged the full court to let the three-judge panel’s ruling stand. In a response filed late Monday morning, it said the full court should wait to see if the government can find a sponsor for the teen by the panel’s Oct. 31 deadline, which would allow her to be released and seek an abortion on her own. The government said it has received inquiries from prospective sponsors since the case made headlines last week.
The Justice Department also reiterated the government’s view that the teen could solve the problem herself by voluntarily leaving the United States and seeking to terminate her pregnancy elsewhere. The government acknowledged Friday that abortion is illegal in the teen’s home country, the name of which has been sealed in court records.
“Ms. Doe arrived here illegally and refuses to leave,” the government said in its court filing. “She has put herself to a difficult choice. And if the federal government has to approve, assist, and be complicit in Ms. Doe’s abortion, the government’s interest in avoiding that facilitation outweighs any alleged ‘burden’ she has created for herself.”
“Time is really of the essence,” Arthur Spitzer, a lawyer with the ACLU, told The Washington Post early Monday. “Every day, every week that goes by is a psychological harm to her.”
Spitzer added that the longer the pregnancy continues, the more risky the abortion could become.
“The government has already delayed this by a month,” Spitzer said. “One way or another we hope that they will decide quickly.”
“Very soon she will no longer be able to get an abortion in South Texas,” lawyers wrote in their petition Sunday. In a matter of weeks, she will no longer be able to get an abortion at all, they wrote, “and the government will have forced J.D. to have a child against her will.”
While the full court does not often review the actions of a panel on emergency order, Spitzer thought the chances were relatively good in this case. Five votes are required to review the panel’s actions, and one of the judges is recused, Spitzer said.
If the appeals court declines to review the panel’s decision, the lawyers will likely go to the Supreme Court.
Along with the petition for en banc review, lawyers on Sunday also filed a declaration from Robert Carey, former director of the Office of Refugee Resettlement under the Obama administration. Carey outlined the many time-consuming steps required to properly identify, vet and approve of a sponsor for a minor such as the girl in detention. She does not have a parent or relative in the United States who can serve as a sponsor.
The process, Carey wrote, is likely to take months to complete. He does not think the girl can be released within the short time frame provided by the court.
If efforts to find the girl a sponsor by Oct. 31 are unsuccessful, she will have to return to a U.S. District Court and start the process all over again, her lawyers said.
On Friday, HHS’s Administration for Children and Families said in a statement: “For however much time we are given, the Office of Refugee Resettlement and HHS will protect the well being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care.”
Spitzer told The Post early Monday: “The Trump administration here is acting in such an outrageous way, trying to impose their view of right and wrong on this young woman who’s entitled to make this choice for herself. If they’re allowed to do it to her, they’ll do it to others.”
Maria Sacchetti contributed to this story.