Trump administration officials must allow two pregnant teenage immigrants being held in detention facilities to see doctors about having abortions, a federal judge ruled Monday.
U.S. District Judge Tanya Chutkan in Washington issued a temporary restraining order that bars administration officials from preventing the two 17-year-olds from leaving the shelters. One of the immigrants is 10 weeks pregnant and the other is in her 22nd week, according to the judge’s order.
Officials are “required to transport” the two or allow them “to be transported, promptly and without delay … to an abortion provider, in order to obtain any pregnancy or abortion-related medical care,” the judge said.
Within an hour, administration lawyers said they would allow the girl who is 22 weeks pregnant to have an abortion.
But, moving with unusual speed, they asked the appeals court and the U.S. Supreme Court to grant a two-week stay to allow judges to consider an appeal in the case of the other teenager or for the government to find a private sponsor who could house her.
Officials have been blocking both teenagers from leaving the detention facilities, following a Trump administration policy that seeks to prevent any immigrant in detention from obtaining an abortion. The abortions would be paid for with private funds as the government does not provide or pay for abortions, except in cases of rape, incest or a threat to the woman’s life.
Without the stay, "an abortion is very likely to occur imminently," Justice Department lawyers told the courts. At issue, they said, is "whether the government must facilitate an abortion procedure that is not necessary to preserve the life or health of an unaccompanied minor who unlawfully entered the country."
Judge Chutkan, an Obama administration appointee, had agreed to put her order on hold for 24 hours to “preserve the opportunity to seek emergency relief from the D.C. Circuit” if the administration chooses to appeal.
ACLU attorney Brigitte Amiri accused the administration of a “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,” she said in a statement.
The judge’s order reignites a bitter battle between the American Civil Liberties Union and the Trump administration over abortion rights for young women taken into custody after crossing the border illegally. Minors who surrender to immigration officials after entering the U.S. without parents are usually kept in detention facilities.
Before this year, unaccompanied migrants in detention could obtain an abortion if they paid for it with private funds.
In March, the new administration adopted a policy that went a step beyond refusing to pay for abortions. The new rules prohibit federally funded shelters from taking “any action that facilitates” abortion without written “approval from the director of the Office of Refugee Resettlement.”
The new director, E. Scott Lloyd, is a former attorney for the the Catholic fraternal organization Knights of Columbus and a staunch opponent of abortion. In court documents, administration lawyers said that allowing a pregnant minor to leave a shelter to see a doctor “would entail facilitating an abortion.”
In October, the ACLU sued Lloyd and other Trump administration officials and accused them of wielding “an unconstitutional veto power” over abortion. They said “thousands of unaccompanied immigrant minors” were in government custody. Many of them fled to the United States because of abuse and sexual assaults in their home country, they said.
In response, the administration said these young women were free to leave the detention centers if they agreed to leave this country and to return home.
The ACLU won an order in October on behalf of a 17-year-old “Jane Doe” who was 11 weeks pregnant when she asked for an abortion. A Texas judge decided she was mature enough to make the decision on her own. And Chutkan ruled U.S. officials could not block her from seeing a doctor about an abortion.
The administration quickly appealed, and the dispute divided the U.S. Court of Appeals for the District of Columbia Circuit along ideological and political lines. In a 6-3 decision, the appeals court upheld Chutkan’s order. The six judges in the majority were Democratic appointees, including Chief Judge Merrick Garland, President Obama’s Supreme Court nominee who was blocked by Senate Republicans. The three dissenters were Republican appointees, including Brett Kavanaugh, a leading contender for the next Supreme Court seat under President Trump.
On the morning after the ruling, the teenager had an abortion before the administration could lodge an emergency appeal with the Supreme Court.
“This was a total surprise…. And we’re disturbed about it,” Atty. Gen. Jeff Sessions said in a Fox News interview.
A few days later, the administration sent an highly unusual appeal to the high court that accused the ACLU lawyers of deception and asked for some punishment against them. The justices have not acted on the request.