In the first major legal battle over abortion under President Trump, the federal appeals court in Washington on Tuesday set aside an antiabortion rule adopted by the administration and cleared the way for a 17-year-old immigrant to end her pregnancy.
By a 6-3 vote, the U.S. Court of Appeals for the District of Columbia Circuit revived an earlier order that the government must "promptly and without delay" allow the teenager, referred to in court as Jane Doe, to obtain the abortion she has sought for five weeks. Doe has been held in a detention center for unaccompanied minors in south Texas since crossing the border in September.
Trump administration officials have adopted a policy of not allowing pregnant minors who are in federal custody to get abortions. They did not dispute that the Constitution gave Doe a right to choose an abortion, but said they would not "facilitate" the procedure by allowing her to travel to an abortion clinic.
Although the ruling directly affects only the one pregnant teenager who brought the case, it strongly indicates that the appeals court, which has jurisdiction over federal agencies nationwide, would strike down efforts by administration officials to block abortions in similar cases. The ACLU, which represented Doe, says that in the last year, administration officials repeatedly have tried to prevent pregnant minors in detention from having abortions.
Administration officials did not immediately comment on the ruling or what they would do next.
The appellate judges split entirely along ideological and political lines. The six judges in the majority were all Democratic appointees, including Chief Judge Merrick Garland, President Obama's unsuccessful nominee to the Supreme Court. The three dissenters were Republican appointees, including Judge Brett M. Kavanaugh, a leading contender for the next Supreme Court nomination under Trump.
Kavanaugh slammed the majority for what he called a "radical extension" of the law that creates a "new right for unlawful immigrant minors… to obtain immediate abortion on demand."
"What new law?" Judge Patricia Millett shot back. The Roe vs. Wade ruling created a constitutional right to abortion, Millett, an Obama appointee, wrote in an opinion explaining the majority's ruling. That right applies whether or not a person is in the U.S. legally, she wrote.
Administration officials "bulldozed" over Doe's rights by claiming "an unaccompanied child has the burden of extracting herself from custody if she wanted to exercise the right," she wrote. "The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention."
The abortion procedure is to be paid for with private funds, not tax money, Millett noted, and even the cost of taking Doe to the clinic would not be paid by taxpayer funds
The government does not have to "facilitate" anything for Doe to have the abortion, she wrote, "it just has to not interfere or make things harder."
The case began in early September when the young immigrant crossed the border illegally and said she was fleeing violence and abuse in Central America. An examination later determined she was pregnant.
Because she was an unaccompanied minor, she came under the control of a little-known agency in the Department of Health and Human Services, the Office of Refugee Resettlement. Under the Trump administration, that agency is headed by E. Scott Lloyd, a former attorney for the Knights of Columbus and a fierce opponent of abortion.
Lloyd decreed that federally funded shelters which house young migrants may not take "any action that facilitates an abortion" without his direct approval.
Jane Doe was 11 weeks pregnant when she requested an abortion. With the help of a court-appointed guardian, she won the approval of a Texas judge who decided she was sufficiently mature to make the decision on her own — a requirement in the state's law for minors who do not have a parent's permission for an abortion.
Lloyd refused her request. "For every minor in HHS custody, the agency retains responsibility to ensure that the minor's interests are considered in the decision-making about her case," administration lawyers argued in a brief to the U.S. appeals court on Monday.
"In Ms. Doe's case, the Director declined to permit Ms. Doe to leave her shelter for purposes of obtaining the abortion."
The ACLU alleged Lloyd was wielding an "unconstitutional veto power" over the minor's access to abortion. It also said that given how long the proceedings already had taken, Doe's time for obtaining a legal abortion was running out.
A federal district judge on Oct. 18 ordered Lloyd's agency to permit the young women to be transported for medical counseling and an abortion. Trump's lawyers quickly appealed, and in a 2-1 decision on Friday, a panel of the federal appeals court set aside the judge's order and gave the government 11 more days to "secure a sponsor" to help her with her decision.
Two Republican judges were in the majority on that panel, and Millett dissented. She accused Lloyd of an "astonishing power grab [that] flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of women to make an informed choice whether to continue a pregnancy at this early stage."
The ACLU then asked the full appeals court to take up the case, leading to Tuesday's 6-3 decision.
2:55 p.m.: This article was updated with quotes from the concurring and dissenting opinions.