WASHINGTON – A young pregnant immigrant seeking 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 District of Columbia 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 timeline was at issue because the teenager is 15 weeks pregnant and Texas law bans abortion after 20 weeks.
The 6-3 decision sends the case back to a lower court judge to determine the exact timing of the procedure.
“Today’s decision rights a grave constitutional wrong by the government,” wrote Judge Patricia A. Millett.
In the dissent were the court’s three active judges nominated to the bench by Republican presidents. It was not immediately known whether the Trump administration would appeal to the Supreme Court.
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.
The teenager’s case raises tricky political questions involving immigration and abortion law and has attracted attention from top law enforcement officials throughout the country, who have weighed in on both sides of the issue.
The Trump administration has refused to allow anyone to transport the teenager to a clinic, saying that the government is trying to “promote child birth and fetal life,” and is not required to “facilitate” abortions for minors in federal custody.
Lawyers for the teenager from the American Civil Liberties Union argued the government was violating the girl’s constitutional right to obtain an abortion. Texas law requires parental consent for minors to obtain an abortion, and the teenager has already received permission from a state judge to bypass the requirement and terminate her pregnancy.
In last week’s 2-1 decision, Judges Brett Kavanaugh and Karen LeCraft Henderson gave the Department of Health and Human Services – which oversees undocumented minors taken into custody near the border – 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.
If the government did not find a sponsor, the case would have returned to the lower court judge at that point and that ruling would also have been subject to appeal.
Government lawyers had opposed the request for a rehearing by the full court and said prospective sponsors have inquired about the teenager.
The girl’s lawyers on Sunday filed a sworn statement from the former director of the Office of Refugee Resettlement during the Obama administration. Robert Carey described the lengthy process of identifying and vetting potential sponsors.
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.
Millett was in the minority last week when she called the majority’s ruling “unconstitutional.”
“There are no winners in cases like these. But there sure are losers,” Millett wrote. “Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”
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