A federal appeals court ruled Friday that the government may not deny abortion access to illegal immigrants who are minors in its custody.
Split 2-1 in its decision, with Senior Circuit Judge Laurence Silberman dissenting, the court determined that current Office of Refugee Resettlement and Department of Health and Human Services policy functions “as an across-the-board ban on access to abortion” — and is therefore unconstitutional.
Friday’s ruling applies only to minors. As the decision noted: “[A]nyone aged 18 (or older) in immigration custody is allowed to terminate her pregnancy.”
The case was brought by the American Civil Liberties Union on behalf of a 17-year-old illegal immigrant identified only as “Jane Doe.”
Reports indicate “Doe” entered the United States illegally in 2017 and was placed under the guardianship of the Health and Human Services Department’s Office of Refugee Resettlement until she could be properly resettled.
While in ORR custody, “Doe” learned she was pregnant, according to a June 2018 report by The Associated Press.
She was prevented from immediately seeking an abortion, the result of a longstanding policy that prohibited ORR shelters “from taking any action that facilitates an abortion without direction and approval from the Director,” according to Reuters.
The case rose to the attention of the Supreme Court last year after a conflict between a previous state court decision and resulting actions taken by ORR prompted further court intervention, the AP reported.
After a Texas state court ruled that the office had to allow the minor to obtain an abortion, the department instead sought to secure a sponsor who was lawfully in the United States to assume custody of the girl so the office would not be directly facilitating the abortion — if only by releasing the girl temporarily from custody so she could obtain it.
The ACLU argued this was in direct violation of the initial court order, placing “undue burn” on the girl — who actually obtained the abortion about 12 hours after the Texas court decision, according to the AP.
In its June 2018 decision, the Supreme Court vacated the teen’s case — and the Texas court’s decision in her favor — because it was moot after the abortion had already been performed, the AP reported.
Still, whether federal entities may indeed decline to participate in abortions for illegal immigrants in their care was left undecided.
The District of Columbia Court ruling — by Circuit Judges Robert L. Wilkins and Sri Srinivasan — referred to the government’s case against allowing “Doe” to seek an abortion as “misguided,” and held that the government’s role in releasing the girl for an abortion would not rise to the level of “facilitation.”
The court also ruled against a government argument that the minor had full access to an abortion should she decide to return to her country of origin, saying that it would place “undue burden on the minor” and her “right to choose” to make her revoke claims for asylum and return home for the procedure.
The decision suggests such a precedent would “dissuade” others from “seeking a better life in this country.”
Wilkins and Srinivasan found the government has no “leeway to ban abortions on the theory that pregnant women can go elsewhere via voluntary departure.”
“We cannot accept the suggestion that minors in ORR custody should be compelled to carry pregnancies to term against their wishes — even in cases of rape — so that others will be deterred from desiring to come here,” the ruling stated.
Thus, the court found that the government must better aid illegal immigrants in its care in pursuing abortions.
Brigitte Amiri, the ACLU’s lead lawyer on the case, says the decision left her “relieved,” BuzzFeed News reported.
“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion was a blatant abuse of power,” she said of the decision.
“We are relieved that today’s ruling continues to prevent the policy from taking effect while the case proceeds, and allows the case to proceed as a class action as we continue this fight.”
Judge Silberman, on the other hand, found the decision concerning.
In his dissent, Silberman wrote that the decision stems improperly from the court’s assumption that ORR is, in pursuing a sponsor rather than directly aiding in Doe’s attempt to access an abortion, motivated not by adherence to procedure but a drive to deny the girl an abortion.
“The majority suggests that the Government’s real interest in sponsorship is nothing more than avoiding facilitation of abortion. This is unfair. It seems to me irrelevant as to what the ‘record’ reveals of ORR’s ‘thinking’ — whatever that means — about the benefits of adult guidance for a pregnant minor,” Silberman wrote.
“Contrary to the assertions of the majority, in this litigation, the Government has argued that sponsorship does provide that benefit to a pregnant minor.”
Silberman also wrote that the decision brings the judiciary dangerously close to interpreting previous abortion-related precedent to mean that access to abortion must be unrestricted and “on demand” if the individual pursuing the procedure is in any way government-associated.
The Trump administration could appeal to the Supreme Court, according to Reuters, but Justice Brett Kavanaugh would be likely to recuse himself because he participated in the case when he was on the D.C. circuit court.
As Reuters noted, that would mean the court was divided evenly between its liberal and conservative wings.
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