In the stay application filed with the Supreme Court, Solicitor General Noel Francisco said the other girl "is only about 10 weeks pregnant" and efforts to find a sponsor who could take her out of federal custody could be completed within two weeks. | Getty Images Trump administration asks Supreme Court to block abortion for immigrant teen

The Trump administration asked the Supreme Court on Monday to block an abortion for a teenage girl in immigration custody, even as federal officials gave up their fight to prevent another undocumented immigrant teen from terminating her pregnancy.

The moves came just hours after a federal judge ordered the Trump administration to permit abortions as soon as Tuesday evening for both pregnant 17-year-old girls being held in federally funded shelters in different states.


The Justice Department did not provide a detailed explanation of its decision to acquiesce in one girl's decision while continuing to seek to block the other teen from getting an abortion, but simply cited "differing circumstances."

The teen whom officials are no longer trying to stop from terminating her pregnancy is believed to be about 22 weeks pregnant, nearing the time many states ban elective abortion. On Tuesday morning, U.S. District Court Judge Tanya Chutkan granted a request from that girl's lawyers to allow her to receive her abortion immediately.

In the stay application the Trump administration filed with the Supreme Court on Monday night, Solicitor General Noel Francisco said the other girl "is only about 10 weeks pregnant" and efforts to find a sponsor who could take her out of federal custody could be completed within two weeks.

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"A stay here would preserve the status quo pending further adjudication...and would ensure that this Court need not choose 'between justice on the fly' and 'participation in what may be an idle ceremony,'" Francisco added.

The restraining order issued by U.S. District Court Judge Tanya Chutkan reignited a legal battle over the rights of undocumented minors in federal custody to have abortions, first sparked in October when another 17-year-old immigration detainee petitioned to end her pregnancy.

Chutkan did not provide a lengthy explanation for the order she issued Monday evening, but concluded there was a "need to preserve [the teens'] constitutional right to decide whether to carry their pregnancies to term."

Chutkan, an appointee of President Barack Obama, also said the legal principles at stake were essentially the same as those she and appellate judges ruled on in October. The teen at the center of that case, ultimately received an abortion after the full bench of the D.C. Circuit Court of Appeals split, 6-3, upholding Chutkan's decision.

Since the start of the legal battle, government lawyers have also argued that the teens are free to return to their home countries or to seek to be released to the custody of a sponsor, but federal officials should not have to take any action to "facilitate" an abortion.

Justice Department attorneys have stopped short of saying whether they believe foreigners who recently entered the U.S. illegally have a constitutional right to abortion. However, several conservative states have filed amicus briefs saying those immigrants lack such rights and two administration officials caught up in the fight are also making that argument through private lawyers.

Few details are public about the two teens who are currently seeking abortions. They recently entered the U.S. and are in states that do not require parental or judicial consent for a 17-year-old to receive an abortion.

“We are deeply disappointed in the decision to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary," said a spokesperson for the Department of Health and Human Services, which has custody over the teens under federal law.

"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.”

A lawyer for the girls seeking abortions, Brigitte Amiri of the American Civil Liberties Union, welcomed Chutkan's latest ruling.

"The judge’s decision is a reminder that both the law and justice are on our side. We’ve already seen the courts rule in favor of Jane Doe, and today justice prevailed for two more young women like her,” Amiri said. “Unfortunately, the Trump administration has shown no indication that they’ll abandon their cruel and dystopian crusade to block abortion access for some of the most marginalized people in our country. We’re prepared to keep fighting for as long as we need to.”

About a half hour after Chutkan issued her order, government attorneys appealed the ruling to the D.C. Circuit. Soon thereafter, Justice Department attorneys filed for an emergency stay of Chutkan's ruling with respect to the girl who is about 10 weeks pregnant.

The decision was set to kick in just after 6 P.M. Tuesday, allowing the teen to get an abortion after that time. However, on Monday night a three-judge panel of the D.C. Circuit extended that stay for another 24 hours while the court seeks legal filings from both sides. The three D.C. Circuit judges assigned to the case, Judith Rogers, David Tatel and Patricia Millett, are all Democratic appointees who joined in the October decision permitting the teen who filed the legal challenge to receive an abortion.

At a court hearing before Chutkan earlier Monday, Amiri said the scenario was essentially a repeat of what happened two months ago. "It's absolutely deja vu," she said.

At the hearing, Justice Department lawyer August Flentje said Scott Lloyd, director of HHS's Office of Refugee Resettlement, decided Sunday that the girl who is about 22 weeks pregnant should not receive an abortion because "it would not be in the best interest" of the teen. The reasons for Lloyd's decision were provided to the court under seal later Monday,

The teen arrived in the U.S. less than a month ago and was first thought to be only nine weeks pregnant, according the administration’s filing. After she told her parents in her home country that she was considering an abortion, she decided on Dec. 4 against the procedure, officials said. Later, she apparently changed her mind.

However, Chutkan dismissed the administration’s position that her change of mind supported the government's conclusion that she should not have access to an abortion.

"Every decision to terminate a pregnancy is a difficult one," the judge said. "That doesn't mean because she arrived at her decision after a struggle, that's less of a right."

Like the original teen, the two undocumented minors in the latest dispute arrived in the U.S. without their parents and will have private funding to obtain the abortions they requested, according to the ACLU.

Neither of the two girls seeking abortions at the moment has been forced to visit a crisis pregnancy center for anti-abortion counseling — which other pregnant teens were forced to do, according to documents presented in court filings. The teens were connected with the ACLU through anonymous tips, according to Amiri.

Chutkan has yet to weigh in on the ACLU's request to convert the case to a class action in order to provide relief to other pregnant undocumented teens being held in federally funded shelters and denied access to abortion. The administration had said there is no "class" because other minors in shelters weren't requesting abortions.

As part of the class action fight, the ACLU submitted emails last month showing that ORR is closely monitoring all pregnant minors in custody and ordering shelters to force girls that request abortions to first visit crisis pregnancy centers or call their parents in their home countries.

One email shows that Lloyd has been receiving details of all pregnant girls in custody regardless of whether they request an abortion, including her location, the circumstances of her pregnancy, how long she appears to have been pregnant, and whether she requested information regarding abortion.

According to the ACLU's filings, ORR shelters housed about 420 pregnant girls between October 2016 and September 2017, and 18 requested abortions. Overall, five changed their minds but 11 had abortions. The outcome for two others released from shelters and placed with sponsors was not known.