NRL News

Without dissent, Supreme Court dismisses lower court decision granting undocumented teen an abortion

by | Jun 4, 2018

Whether undocumented teens have “right” to abortion still in courts

By Dave Andrusko

In a five page unsigned opinion filed without noted dissents, the Supreme Court today dismissed a decision by the U.S. Court of Appeals for the D.C. Circuit which allowed an undocumented 17 year girl to abort.

While the particulars of the case of the girl from Mexico who entered the country through Texas apply only to her, the importance is that the High Court’s decision means no precedent has been set that would allow other similarly-situated teenagers to obtain an abortion.

As USA Today’s Richard Wolf explained, the government “had been seeking to wipe the slate clean at the appeals court level so that the October ruling did not serve as precedent. It succeeded in that effort.” Because the girl had obtained her abortion, the justices concluded the case had been rendered moot.

And for reasons of its own, the Justices allowed the American Civil Liberties Union to skate in spite of the ACLU’s highly questionable tactics which allowed the girl to have the abortion before the government was led to believe she would. (More about this below.)

NRL News Today covered this case of “Jane Doe” in dozens of posts going back to September 2017. The legal wrangling is hugely complicated.

According to the Supreme Court’s per curiam ruling in Azar v. Garza this morning, Jane Doe was eight weeks pregnant when she entered the country illegally.

She was detained and placed into the custody of the Office of Refugee Resettlement (ORR),part of the Department of Health and Human Services. ORR placed her in a federally funded shelter in Texas. After an initial medical examination, Doe requested an abortion. But ORR did not allow Doe to go to an abortion clinic. Absent “emergency medical situations,” ORR policy prohibits shelter personnel from “taking any action that facilitates an abortion without direction and approval from the Director of ORR.”

Represented by the ACLU, Doe convinced U.S. District Judge Tanya S. Chutkan, an Obama nominee, to order the government to allow her to proceed to have an abortion. However, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit halted the process, saying it was preferable that the government find a sponsor for the girl, thus taking the government out of the business of “facilitating” her abortion.

But on October 24 the full circuit court reversed that decision, “followed a few hours later by a new order from the district judge,” according to Robert Barnes and Ann E. Marimow of the Washington Post. “That started the race that night. For the solicitor general’s office, it was to get the issue before the Supreme Court. For lawyers for the girl, it was to get her the abortion. She was 15 weeks pregnant at the time.”

In early November, Solicitor General Noel Francisco argued the government had been mislead by the ACLU and asked for unspecified punishment. According to the Hill

In Texas, where the teen was being held, state law requires that women receive counseling at least 24 hours before obtaining an abortion and that the counseling be done by the same doctor who will perform the procedure.

But the government says it was misled about the timing of the counseling and abortion appointments for the minor, referred to in court as Jane Doe. The government thought the teen was getting counseled at 7:30 a.m. on Oct. 25 and therefore would not have the procedure until Oct. 26.

But when the same doctor that had already counseled Doe on Oct. 19 became available on Oct. 25, her counseling appointment changed to an appointment for an abortion and was moved to an earlier time without the government being told.

Jane Doe had the abortion at approximately 4:15 in the morning.

In all, four pregnant girls have successfully gone to court to force the Trump administration to release them from custody to have an abortion. Judge Chutkan, in March, imposed an order stopping the government from “interfering with or obstructing” access to all “pregnancy-related care” for teens detained in immigration custody.

Chutkan’s order also allowed the case to proceed as a class action on behalf of any other teens in custody who may want abortion services. In 2017, there were at least 420 pregnant unaccompanied minors in custody, including 18 who requested abortions.

The Justice Department has asked the D.C. Circuit to halt the injunction while the appeal is pending.

At the conclusion of its decision, the justices said they “took seriously” the Solicitor General ‘s allegations that the ACLU made “what appeared to be material misrepresentations and omissions that were “designed to thwart this Court’s review.”

But in the end the justices wrote “lawyers also have ethical obligation to their clients and not all communication breakdowns constitute misconduct.”