The Trump administration’s effort to block an undocumented teen’s abortion failed, but it served to re-energize both sides in the decades-old debate.
A 17-year-old immigrant in federal custody has been able to obtain an abortion Wednesday, the legal director of Jane’s Due Process confirmed.
WASHINGTON — The Trump administration’s effort to block an undocumented teenager from getting an abortion ended Wednesday, but it served to re-energize both sides in the decades-long battle over reproductive rights.
Armed with a 6-3 ruling from the U.S. Court of Appeals for the District of Columbia Circuit, the girl known in court papers as Jane Doe was allowed to leave a federal shelter in Texas for the abortion she requested a month ago.
Lawyers for the 17-year-old girl had argued since her detention in September that she had a constitutional right to get an abortion under several Supreme Court precedents — from the 1973 case of Roe v. Wade that legalized abortion to last year’s decision striking down a Texas law that imposed harsh requirements on abortion clinics.
The Justice Department did not dispute that basic constitutional right but contended it did not have to facilitate the abortion by freeing her from federal custody. If she wanted the abortion, the government said, she could leave the country voluntarily or find a custodial sponsor.
In a flurry of court rulings this month, a federal district judge ruled in her favor, a three-judge appeals court panel reversed that decision, and the full appeals court reversed its own panel. Six judges named by Democratic presidents ruled the girl had an “unchallenged right under the Due Process Clause” of the Constitution, Judge Patricia Millett said.
Three judges named by Republican presidents disagreed, with Judge Karen Henderson arguing she lacked any constitutional right and two others saying the government’s effort to find a sponsor was reasonable.
Wednesday’s abortion made the legal case moot. But what’s far from moot is the continuing legal, cultural and political battle over abortion, a fight the Trump administration has made clear it will wage by nominating anti-abortion judges, rolling back requirements that insurers offer free coverage for contraception under Obamacare, and other means.
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“Justice prevailed today for Jane Doe. But make no mistake about it, the administration’s efforts to interfere in women’s decisions won’t stop with Jane,” said Brigitte Amiri, senior staff attorney with the American Civil Liberties Union, which represented the teenager in court. “With this case, we have seen the astounding lengths this administration will go to block women from abortion care.”
In Jane Doe’s case, that included visiting an anti-abortion crisis pregnancy center, where she was encouraged to continue the pregnancy.
“People I don’t even know are trying to make me change my mind,” she said in a statement released Wednesday by her court-appointed guardian. “I made my decision, and that is between me and God.”
Groups that oppose abortion were encouraged by the administration’s stance. Steven Aden, general counsel at Americans United for Life, called it “a life-affirming policy” in line with the Hyde Amendment, which bars the use of federal funds to pay for abortion in most circumstances.
If the administration had acquiesced from the beginning, Aden said, it would send a message to women in countries with tougher laws against abortion. “That would make the United States a kind of abortion destination,” he said.
“We hope that the Trump administration will continue to fight to protect the lives of all on U.S. soil,” said Kristan Hawkins, president of Students for LIfe. “The U.S. should not become the abortion capital of the world.”
The only people who could be affected directly by the appeals court’s decision Tuesday are unaccompanied, pregnant minors in federal custody — a population believed to be in the hundreds, Amiri said.
The administration did not contend that it could prevent women in prison from obtaining abortions because they do not have the same option to leave the country. But in court papers, it made sweeping statements that could apply to other legislative or regulatory initiatives.
“The government may legitimately express a preference for childbirth over abortion, even if such a preference may have practical effects or limits on a woman’s exercise of her right to an abortion,” the Justice Department argued.
Kathryn Kolbert, who in 1992 represented Planned Parenthood in the landmark Supreme Court case Planned Parenthood v. Casey, which reaffirmed abortion rights but allowed some state restrictions, said anti-abortion efforts frequently target “the weakest link” — women who are poor or young or in the country illegally.
Fueled by the administration’s initial refusal to facilitate the teenager’s abortion, Kolbert said, “Those who oppose abortion will take every indicia of resistance to heart and continue to throw up roadblocks.”
With the right to abortion ingrained in past Supreme Court decisions, the administration’s efforts are focused both narrowly on federal programs such as Obamacare and broadly through the judicial nomination process.
“They’re putting all of the power of the government toward promoting childbirth,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. “That really means keeping women from having access to birth control or abortion.”