Activists with Planned Parenthood demonstrate in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion. | J. Scott Applewhite/AP Photo Federal appeals court clears way for undocumented teen to get abortion It’s not clear how soon the girl could have an abortion.

A federal appeals court has ruled that an undocumented pregnant minor being held in a federally-funded shelter in Texas can receive an abortion.

The full bench of the D.C. Circuit Court of Appeals overturned an earlier ruling last Friday from a three-judge panel of that court that gave the Trump administration until Oct. 31 to try to defuse the controversy by finding an adult sponsor who could take in the 17-year old pregnant girl.


On Sunday the girl’s lawyers had asked the full court to set aside the decision, saying that they’ve exhausted their options to find a sponsor. They said the delay brings the girl, now close to 16 weeks pregnant, dangerously close to the states’ 20-week limit on abortion.

The court’s full bench split along party lines with six Democrat appointed judges ruling in favor, three Republican appointees bitterly denouncing the decision and one Democratic appointee recusing herself.

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

POLITICO Playbook newsletter Sign up today to receive the #1-rated newsletter in politics Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

It’s not clear how soon the girl could have an abortion. The girl’s lawyers have asked a district court judge to amend a previous order to allow the girl to have an abortion within days.

The girl, who is being held in the Rio Grande Valley in a facility funded by the Department of Health and Human Services, already had a counseling appointment that Texas requires 24 hours before an abortion could be performed. However, her lawyers said she would have to repeat that appointment because the doctor who performed the previous exam last week won’t be available in the next few days.

If the case is further delayed, the girl will have to travel about 200 miles to obtain the procedure in an ambulatory surgical center or hospital, which Texas law requires for abortions at least 16 weeks into a pregnancy.

For the last seven months, HHS has intervened to prevent abortions sought by girls at federally funded shelters. The Jane Doe case has opened a new legal front over abortion rights and has raised thorny issues about immigration and the rights of foreigners on U.S. soil.

Anti-abortion groups such as Americans United for Life and Susan B. Anthony List condemned Tuesday’s ruling. The decision will turn the country into “a sanctuary nation for abortion,” wrote SBA List President Marjorie Dannenfelser in a statement. “This shameful ruling must not stand.”

The attorneys general of 14 states filed a brief arguing the administration’s policy of blocking abortions for undocumented minors undermines the rights of states to establish consent requirements. Texas attorney general Ken Paxton, along with eight other state attorneys general, have meanwhile argued undocumented immigrants “do not have a right to abortion on demand.”

In Tuesday’s decision, Judge Patricia Millett wrote the girl is constitutionally entitled to an abortion even though she is undocumented, and that the administration should release her from the shelter for the procedure.

She pointed out that the girl, known as Jane Doe in court filings, has obtained private funding for the procedure and the proper approval needed under Texas law to have the procedure without parental sign-off. Millett agreed with new information from the girl’s lawyers the search for a sponsor would slow down the process.

“The court today correctly recognizes that J.D.’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her,” wrote Millett, an Obama appointee.

In previous hearings, Trump administration lawyers wouldn’t address whether undocumented minors have constitutional rights such as abortion. Instead, they asserted that federal authorities were under no obligation to facilitate abortions for minors in their care.

Judge Brett Kavanaugh, a George W. Bush appointee who had apparently devised the previous compromise of allowing the administration extra time to help the girl find a sponsor, dissented with the court’s Tuesday decision. He said that the federal government’s stated desire to encourage child-rearing is valid and is entitled to be recognized in the process.

“The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” he wrote.

Judge Karen Henderson, a George H.W. Bush appointee, in a separate dissenting opinion argued that the undocumented teen lacks constitutional rights, including the right to an abortion. And she criticized the Trump administration for refusing to address that issue.

“The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no,” she said. “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”

If the teen had been in the United States for a long time or had come in legally, her right to an abortion would be harder to dispute, lawyers said. But she crossed the border from Mexico early last month and was immediately apprehended.

“That’s what [Henderson’s] beef is. This person was caught at the border and never formally made an entry,” said Cornell law professor Stephen Yale-Loehr. “People who just made it into the country and don’t have any ties here, do they have any constitutional rights? Do they have the full panoply? This is really the gray area. Nobody has a clear answer.”

The case appears to have strained relations on the court. Kavanaugh, joined by his Republican-appointed colleagues, expressed regret over ”many aspects” of how the court’s full bench handled what he called “a novel and highly fraught case.” The D.C. Circuit rarely grants full court, or en banc, review of cases, and it even more rarely takes en banc action on a preliminary matter.

“The Court never should have reheard this case en banc in the first place," Kavanaugh wrote. "The panel was faced with an emergency motion involving an under-developed factual record that is still unclear and hotly contested."

This article tagged under: Immigration

Abortion

Texas