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Full Appeals Court opens the way for undocumented 17-year-old to have abortion

by | Oct 24, 2017

By Dave Andrusko

Judge Karen L. Henderson

On a 6-3 vote, a divided U.S. Court of Appeals for the District of Columbia Circuit this afternoon ruled that a 17-year-old undocumented girl can have an abortion.

The judges vacated a three-judge panel’s holding rendered last Friday that gave the Department of Health and Human Services until the end of the month to find a sponsor to take custody of the girl, known as “Jane Doe.”

A spokesman for the Justice Department “said the administration is reviewing the order,” POLITICO reported. “He had no immediate comment on whether federal officials will try to seek relief from the Supreme Court.”

Short of an appeal to the Supreme Court and a stay, it is unclear how soon the girl, who is approximately 16 weeks pregnant, will abort. Clearly it would be soon. Jane Doe currently is in the custody of the Office of Refugee Resettlement, a sub-division of HHS that oversees the shelter.


The girl entered the U.S. unaccompanied in September. “After she crossed the border into Texas, she landed in a government-funded shelter for children who have entered the country illegally,” according to CNN’s Joan Biskupic. “When she learned she was pregnant, a guardian was appointed.”

On September 25 the district court issued a temporary restraining order that required the government to allow the girl to be transported to an abortionist. Federal officials appealed, saying they would not “facilitate” the abortion.

Judge Brett Kavanaugh

U.S. District Judge Tanya S. Chutkan agreed with the ACLU–that Jane Doe’s legal status was “irrelevant” and that “despite the fact that she’s in this country illegally, she still has constitutional rights.” The Trump administration appealed. The HHS’s Administration for Children and Families issued a statement which read, “For however much time we are given, the Office of Refugee Resettlement and HHS will protect the well being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care.”

Last Friday the appeals panel, on a 2-1 vote, gave the government until October 31 to find a sponsor. On Sunday night the ACLU appealed to the full court of appeals which sided with the ACLU this afternoon.

Judges Karen L. Henderson and Brett Kavanaugh, who had wanted to give the government time to find a sponsor, dissented from the full court of appeals decision, as did Judge Griffith.

Judge Henderson began

Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion? …. [A]t least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country. …

Under my colleagues’ decision, it is difficult to imagine an alien minor anywhere in the world who will not have a constitutional right to an abortion in this country. Their action is at odds with Supreme Court precedent. It plows new and potentially dangerous ground.

Judge Kavanaugh characterized the majority’s decision as “a radical extension of the Supreme Court’s abortion jurisprudence.”

The en banc majority has badly erred in this case. The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.

Ironically, Judge Patricia Millett, who was the dissenter in Friday’s three-judge panel decision, wrote a concurrence today in which she said, “Remember, we are talking about a child here. A child who is alone in a foreign land.”

Yes, we are, an unborn child who is utterly alone and whom the Trump administration has done its level best to protect.

Categories: Abortion Judicial