{"id":10836,"date":"2017-10-31T13:06:23","date_gmt":"2017-10-31T18:06:23","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=10836"},"modified":"2017-11-20T20:12:48","modified_gmt":"2017-11-21T01:12:48","slug":"federal-judge-and-d-c-circuit-note-that-undocumented-teen-immigrant-has-constitutional-right-to-abortion","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2017\/10\/31\/federal-judge-and-d-c-circuit-note-that-undocumented-teen-immigrant-has-constitutional-right-to-abortion\/","title":{"rendered":"Federal Judge and D.C. Circuit Note that Undocumented Teen Immigrant has Constitutional Right to Abortion"},"content":{"rendered":"
\"\"
Photo Credit: Pixabay<\/figcaption><\/figure>\n

By Amy Kerlin, Staff Writer<\/strong><\/p>\n

The right to abortion is guaranteed by the United States Constitution and the landmark case of Roe v. Wade<\/em>.\u00a0 Last week, the question arose whether undocumented minors who illegally entered the United States also had a constitutional right to terminate a pregnancy.<\/p>\n

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]<\/sup><\/a>\u00a0 She elected to terminate the pregnancy, but the Department of Health and Human Services, the government agency overseeing undocumented minors, argued that \u201c\u2018there is no constitutional right\u2019 for an immigrant minor to get an elective abortion while in federal custody.\u201d[2]<\/sup><\/a><\/p>\n

Undocumented teenager immigrants are sheltered in private facilities like the one Jane Doe is housed in Texas.[3]<\/sup><\/a>\u00a0 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]<\/sup><\/a>\u00a0 There are approximately 5,000 undocumented minors in the care of the Department of Health and Human Services.[5]<\/sup><\/a><\/p>\n

Texas requires a judicial waiver or parental consent for a minor seeking to terminate a pregnancy.[6]<\/sup><\/a>\u00a0 Because Jane Doe entered the United States without her parents, she sought and was granted a state judicial waiver for the abortion.[7]<\/sup><\/a>\u00a0 The federally-funded Texas facility, however, refused to transport her or allow her to be transported for the procedure.[8]<\/sup><\/a><\/p>\n

Initially, a Federal Judge granted Jane Doe a temporary restraining order and ordered the Department of Health and Human Services to \u201cwithout delay\u201d allow Jane Doe to be transported to an abortion provider, but the government filed an emergency motion to stop the procedure.[9]<\/sup><\/a> \u00a0In 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]<\/sup><\/a>\u00a0 Importantly, however, the D.C. Circuit did cite the undocumented teen\u2019s right to access to an abortion, rejecting the government\u2019s earlier argument that undocumented minors had no constitutional right to an abortion.[11]<\/sup><\/a><\/p>\n

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 \u201c\u2018should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming options counseling.\u2019\u201d[12]<\/sup><\/a>\u00a0 The District Court Judge in the initial case determined that the teen\u2019s immigration status was irrelevant to whether she had a constitutional right to an abortion.\u00a0 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.<\/p>\n

While the three-judge panel gave the Department of Health and Human Services until October 31st<\/sup> to find a sponsor for Jane Doe,[13]<\/sup><\/a> on October 25, 2017, the full D.C. Circuit reversed the three-judge panel and granted a ruling in Jane Doe\u2019s favor to seek termination of her pregnancy.[14]<\/sup><\/a>\u00a0 That same day, Jane Doe was transported to a facility and terminated her pregnancy.[15]<\/sup><\/a>\u00a0 While Jane Doe\u2019s case is resolved, the continued issue of access to abortions by undocumented teens remains unresolved.\u00a0 Attorneys for the administration stated that the government has a \u201cnew policy of refusing to \u2018facilitate\u2019 abortions for unaccompanied minors taken into federal custody after crossing the border illegally.\u201d[16]<\/sup><\/a><\/p>\n

 <\/p>\n

 <\/p>\n

Sources<\/strong><\/p>\n

\n

[1]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maria Sacchetti and Sandhya Somashekhar, An Undocumented Teen is Pregnant and in Custody. Can the U.S. Stop her from getting an abortion?<\/em>, 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<\/a>.<\/p>\n

[2]<\/a>\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.<\/p>\n

[3]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Richard Gonzales, Appeals Court Sets Terms for Abortion for Teen Immigrant<\/em>, NPR, October 20, 2017, http:\/\/www.npr.org\/sections\/thetwo-way\/2017\/10\/20\/559152061\/appeals-court-sets-terms-for-abortion-for-teen-immigrant<\/a>.<\/p>\n

[4]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maria Sacchetti and Ann E. Marimow, Appeals Court to Review Judge\u2019s Order Allowing Abortion for Undocumented Immigrant<\/em>, 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<\/a>.<\/p>\n

[5]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maria Sacchetti and Sandhya Somashekhar, An Undocumented Teen is Pregnant and in Custody. Can the U.S. Stop her from getting an abortion?<\/em>, 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<\/a>.<\/p>\n

[6]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion<\/em>, CNN, October 23, 2017, http:\/\/www.cnn.com\/2017\/10\/23\/politics\/undocumented-teen-immigrant-abortion-case\/index.html<\/a>.<\/p>\n

[7]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.<\/p>\n

[8]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.<\/p>\n

[9]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.<\/p>\n

[10]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Order No. 17-5236 in Garza v. Hargan, 1:17-cv-02122-TSC (D.C. Cir. Oct. 20, 2017).<\/p>\n

[11]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion<\/em>, CNN, October 23, 2017, http:\/\/www.cnn.com\/2017\/10\/23\/politics\/undocumented-teen-immigrant-abortion-case\/index.html<\/a>.<\/p>\n

[12]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maria Sacchetti, U.S. Judge Orders Trump Administration to Allow Abortion for Undocumented Teen<\/em>, 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<\/a>.<\/p>\n

[13]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alanna Orjoux, ACLU Ask for Review in Case of Undocumented Teen Seeking Abortion<\/em>, CNN, October 23, 2017, http:\/\/www.cnn.com\/2017\/10\/23\/politics\/undocumented-teen-immigrant-abortion-case\/index.html<\/a>.<\/p>\n

[14]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maria Sacchetti and Ann E. Marimow, Undocumented Teen Immigrant has the Abortion She Sought for Weeks<\/em>, 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<\/a>.<\/p>\n

[15]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.\u00a0 Notably, the full appeals court reversed the prior stay by a 6-3 vote without first holding oral arguments on the issue.\u00a0 The D.C. Circuit\u2019s 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.<\/p>\n

[16]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Id.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Amy Kerlin, Staff Writer The right to abortion is guaranteed by the United States Constitution and the landmark case of Roe v. Wade.\u00a0 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 [\u2026] <\/p>\n

<\/div>\n

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