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Supreme Court Throws Out Ruling That Undocumented Teens in Federal Custody Can Receive Abortion Care (Updated)

Imani Gandy

The Court ruled in the federal government's favor, but refused its bizarre request to discipline ACLU lawyers.

UPDATE, June 5, 9:18 a.m.: Hours after the Supreme Court’s decision to dismiss Doe’s claims as moot, the Court of Appeals for the District of Columbia turned down a request from the Trump administration to restart its policy barring abortion care for unaccompanied minors in government custody. The administration’s policy remains blocked while the underlying case against the administration moves forward.

The U.S. Supreme Court’s Monday decision in Azar v. Garza—in which the Trump administration refused abortion care to an undocumented pregnant minor in federal custody in Texas—prevents the lower court order allowing Jane Doe to obtain an abortion from serving as legal precedent, leaving the reproductive rights of undocumented pregnant teens an open question.

The Court also rejected the Trump administration’s bizarre request that the Court sanction the ACLU for misleading U.S. Department of Justice (DOJ) lawyers about the timing of Doe’s abortion procedure.

Jane Doe arrived in the United States last fall on her own, and was detained in a shelter for undocumented and unaccompanied minors. While at the shelter, she discovered she was pregnant and requested an abortion.

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The Office of Refugee Resettlement (ORR), which oversees the federal shelters that house undocumented and unaccompanied minors like Doe, refused to allow her to obtain abortion services.

ORR Director Scott Lloyd—who is staunchly anti-choice—issued a policy in March 2017 requiring that he personally sign off on any action that “facilitates” an abortion. Lloyd vested in himself the power to decide whether a pregnant minor could obtain legal abortion; in response to one undocumented minor who was pregnant as the result of rape, Lloyd wrote in a memo that he was “convinced that assisting with an abortion in this case is not in [Jane Doe’s] best interest.”

After the ACLU filed a lawsuit on Doe’s behalf, U.S. District Court Judge Tanya Chatkin, noting that pregnant immigrants have the same right to abortion care that pregnant U.S. citizens do, issued a temporary restraining order allowing Doe to obtain an abortion immediately. Chatkin certified the litigation as a class action. That means her ruling blocking the administration’s policy and ordering officials to stop thwarting abortion access would have applied to every undocumented minor in federal custody who seeks an abortion, and not on a case-by-case basis.

By vacating the order, the Supreme Court has left the rights of immigrant minors to obtain abortion care up in the air and has permitted Lloyd to continue denying abortions to pregnant undocumented teens who need the medical procedure. That’s one major issue.

The other major issue is the Trump administration’s odd petition for writ of certiorari, which accused Doe’s attorneys at the ACLU of ethical breaches. The DOJ argued that the ACLU misled the government about the timing of Doe’s abortion so that the government would not have the opportunity to object to it in court and potentially block it. The ACLU countered that they acted properly and in the best interest of their client.

Some facts are in order:

Judge Chatkin issued a temporary restraining order allowing Doe to obtain an abortion on October 18, 2017.

On October 19, Doe underwent the counseling required by Texas law.

The next day—on October 20—a three-judge panel of the D.C. Circuit Court of Appeals vacated the lower court’s order, blocking Doe from obtaining abortion services. But four days after that—on October 24—the D.C. Circuit Court of Appeals sitting en banc vacated the three-judge panel’s order and kicked the case back to the district court, which ordered the Trump administration to allow Doe to receive an abortion.

Doe ultimately obtained her abortion on October 25. Initially, however, Doe and her attorneys believed she wouldn’t be able to obtain an abortion until October 26. Texas law has a “same physician requirement”  which mandates that the doctor who is to perform the abortion also do the counseling session. The doctor who did Doe’s counseling session on October 19 was not available at first, so when asked by the Trump administration, Doe’s lawyers informed them that Doe would receive abortion services on October 26. (That’s because she would have first had to undergo counseling on October 25 in order to comply with Texas’s 24-hour forced waiting period law.)

The original doctor who did the counseling on October 19 then became available, and rather than wait until October 26, the lawyers scheduled Doe’s abortion for October 25.

The Trump administration cried foul, complaining the ACLU had breached ethical standards by not telling them that the time for the abortion had been moved up and demanded that the ACLU attorneys be sanctioned.

The Supreme Court recognized that claims of attorney misconduct are serious but refused to address it.

Correction: A previous version of this story cited Garza v. Hargan.

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