Federal Judge and D.C. Circuit Note that Undocumented Teen Immigrant has Constitutional Right to Abortion

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By Amy Kerlin, Staff Writer

The right to abortion is guaranteed by the United States Constitution and the landmark case of Roe v. Wade.  Last week, the question arose whether undocumented minors who illegally entered the United States also had a constitutional right to terminate a pregnancy.

Jane Doe, who was discovered as undocumented while crossing the border without her parents, found out she was pregnant after entering the United States.[1]  She elected to terminate the pregnancy, but the Department of Health and Human Services, the government agency overseeing undocumented minors, argued that “‘there is no constitutional right’ for an immigrant minor to get an elective abortion while in federal custody.”[2]

Undocumented teenager immigrants are sheltered in private facilities like the one Jane Doe is housed in Texas.[3]  From there, the Department of Health and Human Services attempts to locate a sponsor for the teen, persuades the teen to voluntarily go back to his or her country, or deports the teen.[4]  There are approximately 5,000 undocumented minors in the care of the Department of Health and Human Services.[5]

Texas requires a judicial waiver or parental consent for a minor seeking to terminate a pregnancy.[6]  Because Jane Doe entered the United States without her parents, she sought and was granted a state judicial waiver for the abortion.[7]  The federally-funded Texas facility, however, refused to transport her or allow her to be transported for the procedure.[8]

Initially, a Federal Judge granted Jane Doe a temporary restraining order and ordered the Department of Health and Human Services to “without delay” allow Jane Doe to be transported to an abortion provider, but the government filed an emergency motion to stop the procedure.[9]  In a 2-1 vote, the United States Court of Appeals for the D.C. Circuit issued an order dissolving the stay and vacating the temporary restraining order to allow the Department of Health and Human Services a little over a week to find Jane Doe a sponsor.[10]  Importantly, however, the D.C. Circuit did cite the undocumented teen’s right to access to an abortion, rejecting the government’s earlier argument that undocumented minors had no constitutional right to an abortion.[11]

Court records revealed that the head of the Office of Refugee Resettlement, a sub-agency of the Department of Health and Human Services, sent a March 30 email stating that federally funded shelters “‘should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming options counseling.’”[12]  The District Court Judge in the initial case determined that the teen’s immigration status was irrelevant to whether she had a constitutional right to an abortion.  At the appellate level, the D.C. Circuit noted that the government was assuming that Jane Doe did possess a constitutional right to get an abortion.

While the three-judge panel gave the Department of Health and Human Services until October 31st to find a sponsor for Jane Doe,[13] on October 25, 2017, the full D.C. Circuit reversed the three-judge panel and granted a ruling in Jane Doe’s favor to seek termination of her pregnancy.[14]  That same day, Jane Doe was transported to a facility and terminated her pregnancy.[15]  While Jane Doe’s case is resolved, the continued issue of access to abortions by undocumented teens remains unresolved.  Attorneys for the administration stated that the government has a “new policy of refusing to ‘facilitate’ abortions for unaccompanied minors taken into federal custody after crossing the border illegally.”[16]

 

 

Sources


[1]           Maria Sacchetti and Sandhya Somashekhar, An Undocumented Teen is Pregnant and in Custody. Can the U.S. Stop her from getting an abortion?, The Washington Post, October 17, 2017, https://www.washingtonpost.com/local/immigration/an-undocumented-teen-is-pregnant-and-in-custody-can-the-us-stop-her-from-getting-an-abortion/2017/10/17/6b548cda-b34b-11e7-9e58-e6288544af98_story.html?tid=a_inl&utm_term=.87e530c61c8e.

[2]           Id.

[3]           Richard Gonzales, Appeals Court Sets Terms for Abortion for Teen Immigrant, NPR, October 20, 2017, http://www.npr.org/sections/thetwo-way/2017/10/20/559152061/appeals-court-sets-terms-for-abortion-for-teen-immigrant.

[4]           Maria Sacchetti and Ann E. Marimow, Appeals Court to Review Judge’s Order Allowing Abortion for Undocumented Immigrant, The Washington Post, October 19, 2017, https://www.washingtonpost.com/amphtml/local/immigration/appeals-court-to-review-judges-order-allowing-abortion-for-undocumented-teen-immigrant/2017/10/19/5ece7202-b4ca-11e7-9e58-e6288544af98_story.html.

[5]           Maria Sacchetti and Sandhya Somashekhar, An Undocumented Teen is Pregnant and in Custody. Can the U.S. Stop her from getting an abortion?, The Washington Post, October 17, 2017, https://www.washingtonpost.com/local/immigration/an-undocumented-teen-is-pregnant-and-in-custody-can-the-us-stop-her-from-getting-an-abortion/2017/10/17/6b548cda-b34b-11e7-9e58-e6288544af98_story.html?tid=a_inl&utm_term=.163ee68bda96.

[6]           Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion, CNN, October 23, 2017, http://www.cnn.com/2017/10/23/politics/undocumented-teen-immigrant-abortion-case/index.html.

[7]           Id.

[8]           Id.

[9]           Id.

[10]         Order No. 17-5236 in Garza v. Hargan, 1:17-cv-02122-TSC (D.C. Cir. Oct. 20, 2017).

[11]         Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion, CNN, October 23, 2017, http://www.cnn.com/2017/10/23/politics/undocumented-teen-immigrant-abortion-case/index.html.

[12]         Maria Sacchetti, U.S. Judge Orders Trump Administration to Allow Abortion for Undocumented Teen, The Washington Post, October 18, 2017, https://www.washingtonpost.com/local/immigration/an-undocumented-teen-is-pregnant-and-in-custody-can-the-us-stop-her-from-getting-an-abortion/2017/10/17/6b548cda-b34b-11e7-9e58-e6288544af98_story.html?tid=a_inl&utm_term=.87e530c61c8e.

[13]         Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion, CNN, October 23, 2017, http://www.cnn.com/2017/10/23/politics/undocumented-teen-immigrant-abortion-case/index.html.

[14]         Maria Sacchetti and Ann E. Marimow, Undocumented Teen Immigrant has the Abortion She Sought for Weeks, The Washington Post, October 25, 2017, https://www.washingtonpost.com/politics/courts_law/undocumented-immigrant-teen-has-abortion-ending-weeks-long-court-battle/2017/10/25/9805249a-b90b-11e7-9e58-e6288544af98_story.html?utm_term=.59bf82121725.

[15]         Id.  Notably, the full appeals court reversed the prior stay by a 6-3 vote without first holding oral arguments on the issue.  The D.C. Circuit’s reversal sent the case back to the initial Federal Judge who, that same day, reissued her earlier order requiring the government to allow the undocumented minor an abortion without delay.

[16]         Id.

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