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Federal Government Can’t Stop Immigrant Teen From Having Abortion, Appeals Court Rules (Updated)

Tina Vasquez

If the undocumented teen would have been granted access to abortion care when she initially requested it, the procedure would have taken ten minutes.

UPDATE, October 25, 10:58 a.m.: Jane Doe on Wednesday morning obtained abortion care, according to the ACLU.

A teenage immigrant who had been barred by federal officials from accessing abortion care can now have the medical procedure after the full U.S. Court of Appeals for the D.C. Circuit on Tuesday overruled a three-judge panel of the court that had temporarily blocked the teen from having an abortion. 

It has been an arduous legal battle for the unaccompanied 17-year-old from Central America, who has been “held hostage” by the Office of Refugee Resettlement (ORR), the agency that oversees unaccompanied immigrant minors. Advocates told Rewire that ORR Director Scott Lloyd, who is vehemently anti-choice and refuses to allow the teen to access abortion care, is a sign of “anti-choice fanaticism” making its way into the federal immigration system.

After having an initial emergency order denied that would have allowed the teen to access abortion care, the American Civil Liberties Union (ACLU), acting on behalf of Jane Doe, sought a second emergency order last week. U.S. District Court Judge Tanya S. Chutkan on Wednesday ordered the federal government to allow the teenager to have the medical procedure, but the Trump administration late Wednesday filed an appeal with the D.C. Court of Appeals asking for an emergency ruling to block the ruling recognizing Jane Doe’s right to abortion care. The circuit court on Thursday issued an administrative stay, which delayed abortion care for the undocumented teenager. A three-judge panel heard arguments from the government and ACLU attorney Brigitte Amiri on Friday, later issuing a 2-1 decision on Jane Doe’s case, giving the undocumented teen until October 31 to secure a sponsor. Once a sponsor is secured, Jane Doe would be released from the custody of Health and Human Services (HHS), which oversees ORR, and she could access the medical procedure. 

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On Sunday night, the teen’s attorneys petitioned for en banc review, “asking the full bench of a federal appeals court in Washington to permit her to have an abortion immediately,” Politico reported.  

Jane’s Due Process, a Texas organization that helps pregnant teens with legal issues, is assisting the ACLU with Jane Doe’s case. In a statement Friday, the organization said the court’s decision avoids “addressing the issue before them: whether the federal government holding Jane hostage and refusing to release her to obtain the abortion care to which she won the right to consent without anyone telling her parents or legal guardian causes her irreparable harm and violates her constitutional rights.”

Jane Doe, who is being detained at a shelter in Texas, has complied with all of the state laws required to access abortion care, including obtaining a judicial bypass when she was nine weeks pregnant. This week she will be 16 weeks pregnant. The state of Texas bans abortion after 20 weeks and in the Rio Grande Valley, where Jane Doe is detained, there is only one clinic.

“Every additional day she must remain pregnant against her will places a severe strain on [Jane Doe], both physically and emotionally. Every additional week the government delays her abortion increases the risks associated with the procedure,” the teen’s attorneys wrote in the petition for en banc review. “In a matter of weeks, J.D. will no longer be able to get an abortion at all, and the government will have forced [Jane Doe] to have a child against her will.”

Source: Jane’s Due Process

Jane’s Due Process outlined how as ORR forces Jane Doe to carry an unwanted pregnancy, not only do her chances of accessing abortion care become slimmer, but the procedure becomes more complicated. If the undocumented teen would have been granted access to abortion care when she initially requested it, the procedure would have taken ten minutes.

There are far-reaching concerns for Jane Doe’s case, including whether ORR will now make a practice of attempting to veto or block teens in its care who are granted judicial waivers to access abortion care.

The government’s stance is that its refusal to facilitate transportation for Jane Doe’s abortion care, meaning its refusal to provide transportation and its refusal to allow her guardian to provide transportation, does not constitute an undue burden.

Jane Doe could have accessed an abortion by now if she were an adult in an immigrant detention center overseen by Immigration and Customs Enforcement or as an undocumented adult in prison for committing a crime. But because she is a minor in legal custody of ORRand ORR maintains an interest in “fetal life and child birth,” as it made clear in Friday’s arguments—the teen is being forced to carry an unwanted pregnancy.

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