Originally published by The Washington Post
A federal judge issued a nationwide order temporarily preventing the government from blocking access to abortion services and counseling for teens detained in immigration custody, saying current administration policy and practices probably are unconstitutional.
The order came in a case brought last fall on behalf of a Central American girl in a government-funded shelter that set off a national debate over the constitutional rights of such undocumented teens to terminate their pregnancies.
The late Friday ruling, by U.S. District Judge Tanya S. Chutkan of Washington, allowed the case to proceed as a class action on behalf of any other teens who have crossed the border illegally and while in federal custody may want to seek abortion services. In filings, the U.S. government acknowledged there were at least 420 pregnant unaccompanied minors in custody in 2017, including 18 who requested abortions.
The Trump administration has refused to “facilitate” such procedures for pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.
The policy position marked a departure from that of the Obama administration, whose Office of Refugee Resettlement did not block immigrants in U.S. custody from having abortions at their own expense, and paid for services for teens in cases of rape, incest or a threat to the woman’s life.
In her 28-page opinion, Chutkan, a 2014 Obama appointee, said the change in policy posed irreparable harm to pregnant teens, writing that “ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices,” referring to unaccompanied children.
“The court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden,” the judge wrote.
A Justice Department spokesman did not immediately comment on the ruling.
The American Civil Liberties Union, representing the teens, expressed relief at the court action.
“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “With today’s rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women.”
In all, four pregnant teens in custody have asked Chutkan to force the administration to stop blocking access to abortion services. The initial case involving the teen in Texas is still pending in the Supreme Court after the Justice Department took the unusual step of asking the justices to consider disciplining the teen’s lawyers.
Abortion rights advocates and some Democrats in Congress have called for the firing of E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services. Court records show that Lloyd has personally intervened to try to block abortion services.
In one case, referenced in court filings, he refused to sign off on an abortion for a 17-year-old who said she had been raped before crossing the border. She threatened to hurt herself if she could not end the pregnancy, court records show.
That minor’s individual case ended when the Justice Department dropped its appeal of a lower-court ruling in her favor, allowing the teen to obtain an abortion.
Chutkan’s opinion stated that government filings attributed the basis of the ORR’s decision to not sign off on the girl’s abortion to “Director Lloyd’s belief that abortion constitutes ‘violence that has the ultimate destruction of another human being as its goal,’ that ‘abortion does not here cure the reality that she is the victim of an assault,’ that “[t]o decline to assist in an abortion here is to decline to participate in violence against an innocent life.’”
Chutkan’s opinion also cited information submitted in that case that she said showed Lloyd also stated, “How could abortion be in [the] best interest [of the young woman and her child] where other options are available, and where the child might even survive outside the womb at this stage of the pregnancy? Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her. I conclude that it is not in her interest.”
Chutkan called Lloyd’s reasoning rendered the exercise of constitutional rights “a Hobson’s choice, wherein one set of rights must be waived in order to effectuate another,” including the risk that an unaccompanied teen could expose herself to the risk of further abuse by voluntarily leaving the United States.
“The court will not sanction any policy or practice that forces vulnerable young women to make such a choice,” Chutkan wrote. “While ORR and its Director are certainly entitled to maintain an interest in fetal life, and even to prefer that pregnant UCs in ORR custody choose one course over the other, ORR may not create or implement any policy that strips UCs of their right to make their own reproductive choices.”