Supreme Court erases ruling against government in illegal immigrant teen's abortion case as moot

Richard Wolf | USA TODAY

WASHINGTON – The Supreme Court tossed out a lower court ruling Monday against the Trump administration's policy of denying abortions to undocumented minors in federal custody, but only because the dispute had become moot.

The action was a Pyrrhic victory of sorts for the government, which had sought to block a 17-year-old girl known in court papers as "Jane Doe" from getting an abortion, even after a divided federal appeals court ruled in her favor.

The order from the full court included no dissents.

U.S. Solicitor General Noel Francisco had charged, in an unusual court filing, that the American Civil Liberties Union misled his office about the timing of the abortion to avoid a Supreme Court appeal. The justices did not resolve that dispute.

"The court need not delve into the factual disputes raised by the parties in order to answer the ... question here," the five-page order said.

In addition to asking that the decision of the U.S. Court of Appeals for the District of Columbia Circuit be erased, Francisco had asked the high court to consider sanctions against the ACLU for its conduct in the case.

The battle has been controversial because it involves illegal immigration as well as the continuing legal, cultural and political debate over abortion. The Trump administration has reversed President Barack Obama's policies on abortion rights by nominating anti-abortion judges and rolling back requirements that insurers offer free coverage for contraception under Obamacare.

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Jane Doe's case already was moot, not only because the Central America native received an abortion in October but because she has been released to a U.S. sponsor and is no longer in federal custody. But the issue — pitting illegal immigrant teenagers seeking abortions against a government that does not want to facilitate them — continues to recur.

Since the case was resolved, federal District Judge Tanya Chutkan has ruled in favor of two more teenagers, and a fourth was released to her U.S. sponsor while a similar lawsuit was pending.

Beyond those four cases, the policy affects hundreds of girls being held in federal shelters while awaiting deportation. The ACLU has asked Chutkan for permission to represent all such girls as part of a class action lawsuit against the government.

The government, meanwhile, 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.

The Trump administration's position is that undocumented minors can return to their home countries or find a U.S. sponsor in order to get abortions. In the meantime, it argues that the government should not have to help in the process.

"Under this court’s case law, the government may adopt policies favoring life over abortion," Francisco argued in court papers. "It is not obligated to facilitate abortion, and the government acts permissibly when it does not place an undue burden in a woman’s path."

A federal district court initially ruled in Jane Doe's favor, but a three-judge appeals court panel ruled 2-1 against her. Then the full appeals court agreed to hear the case and came down 6-3 on her side. In both cases, the judges broke along party lines, with those named by Democratic presidents on her side and those named by Republicans against her.

Judge Patricia Millett wrote that the appeals court's final decision "rights a grave constitutional wrong by the government."

"Remember, we are talking about a child here," Millett said. "A child who is alone in a foreign land. A child who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant."