NRL News

Supreme Court will decide Jan. 5 whether to take case of pregnant undocumented teenagers’ “right” to abortion

by | Dec 21, 2017

If Justices do, a decision could come in late June

By Dave Andrusko

DC Circuit Court of Appeals Judge Karen L. Henderson argued, “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.”

Veteran Supreme Court reporter Lyle Denniston reported today that the Supreme has decided to “move ahead on the dispute over teen abortions.” He is referring to the case of three undocumented pregnant girls whom the ACLU has so far successfully argued ought to be allowed to abort.

Denniston begins

The Supreme Court plans to take up at its first private conference in the new year the intense, ongoing fight over an unsettled constitutional question – do undocumented immigrant teenagers who are pregnant have a right to an abortion? That question remains open even though three of those young women have had abortions or are now free to have the procedure.

The Justices are now scheduled to discuss on January 5 the Trump Administration’s appeal, seeking a clear-cut ruling that government officials have no legal duty to do anything to help secure abortions for teenagers being held in custody after they entered the country illegally.

The justices will juggle a multiplicity of issues and arguments. The ACLU’s position is clear. Their lawsuit seeks the right to abort “of all detained teenagers who are or might become pregnant.”

Thus far, U.S. District Court Judge Tanya Chutkan has agreed that all three teenagers must be allowed to abort and so ordered. In response to the latest cases of “Jane Doe” and “Jane Poe,” the government said

“We are deeply disappointed in the decision [by Judge Chutkan] to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary,” spokesperson for the Department of Health and Human Services told POLITICO. “A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor. HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions.”

That has been the Trump administration’s position from the beginning: the government is not obliged to “facilitate” these abortions. (As Denniston noted, “Since the Supreme Court has ruled that women in general have a constitutional right to choose to have an abortion, and that government may not impose an ‘undue burden’ on that right, the Trump legal team takes the view that failing to facilitate an abortion does not impose any such burden.”)

The Department of Justice argues that these pregnant teenagers may either go back to their home country of origin or “identify a suitable sponsor” but not simply be released on their own recognizance.

A number of state attorneys general have gone further. “Texas and 10 other states have made repeated efforts to get three federal courts to rule that, as illegal entrants to the U.S. with no more tie to this country than the fact that they are detained by the government, the young immigrants have no constitutional rights, including no right to an abortion,” Denniston writes. They want the Supreme Court to rule explicitly that “unlawfully-present aliens with virtually no connections to the United States have no constitutional right to an elective abortion.”

The Justice Department is also addressing the specifics of the first undocumented teenager (“Jane Doe”) who did abort in late October after a split DC Circuit Court of Appeals agreed with Judge Chutkan.

As NRL News Today has discussed in previous stories, the Justice Department is challenging the behavior of the ACLU lawyers.

In November the Justice Department filed a 29 page petition, arguing that “the ACLU misled the United States as to the timing of Jane Doe’s abortion,” according to Justice Department spokesman Devin O’Malley. “After informing Justice Department attorney the procedure would occur on October 26th, Jane Doe’s attorneys scheduled the abortion for the early morning hours of October 25th, thereby thwarting Supreme Court review.”  The Justice Department seeks some unspecified form of punishment.

Denniston writes, “The more important part of that appeal, though, is the Administration’s request for the Justices to answer this question: should lower courts be ordered to dismiss all claims for release from detention regarding minors who entered the country alone and are or were found to be pregnant?” As noted, these teenagers are currently being held in HHS- funded shelters in different states.

At their January 5 conference, Dennison concludes, the first issue the Justices will confront “is whether to grant review. If they do accept the case, it could be decided before the end of the current term, probably in late June.”

Categories: Supreme Court