Originally published by The Washington Post
The legal battle over the Trump administration’s policy blocking abortion access for pregnant teenagers in immigration custody returned to court on Wednesday.
A federal judge in Washington issued a nationwide order in March that prevented the government from standing in the way of immigrant teens seeking to end their pregnancies.
Justice Department lawyers want a federal appeals court to reverse the order, saying the government should not have to “facilitate the termination of life through abortion.”
Attorneys representing the immigrant teens say the administration is imposing an unconstitutional abortion ban on hundreds of pregnant girls in federal custody each year. They want the policy struck down completely.
The case has taken on broader significance because of the initial involvement of Trump’s now-Supreme Court nominee Brett M. Kavanaugh, who is a judge on the U.S. Court of Appeals for the D.C. Circuit. Kavanaugh was on the panel of judges reviewing the case when it first came to the appeals court last fall.
Since his nomination, the case has repeatedly been cited by abortion rights advocates as evidence Kavanaugh would allow far more restrictions on abortion than the justice he would replace on the high court, Anthony M. Kennedy.
When the case initially was on appeal, Kavanaugh’s colleagues reversed his order that would have delayed a teen’s access to abortion services.
In his dissent, Kavanaugh accused the court of creating a “new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
The explosive combination of issues reached the court last fall when a Central American teenager held in a government-funded shelter in Texas sought to end her pregnancy. A Texas judge determined the 17-year-old was mature enough to decide to have an abortion without informing her parents.
But the government’s Office of Refugee Resettlement had adopted a policy of refusing to “facilitate” abortions for pregnant teens in its custody who have crossed the border illegally. The teenagers, the government has said, have the option to return to their home countries or to find private sponsors in the United States to help them.
The policy departs from that of the Obama administration, which did not block immigrants in U.S. custody from having abortions at their own expense.
American Civil Liberties Union attorneys, who represent the teens, say in court filings that the government has tried to pressure girls to carry their pregnancies to term, including by withholding information about abortion, and has forced minors to visit antiabortion religiously affiliated crisis pregnancy centers. Teens also had been forced to disclose their pregnancies and abortion decisions to their parents and sponsors, according to the ACLU, whose case will be argued by attorney Brigitte Amiri.
E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services, has personally intervened to try to block abortion services, court records show.
In her March order, U.S. District Judge Tanya S. Chutkan said that the refugee resettlement office’s policies and practices infringe on the constitutional rights of the teenagers in custody “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 preliminary injunction has also prevented the government from disclosing a teen’s pregnancy to anyone before or after an abortion without a sign-off from the teen or in a medical emergency.
Justice Department lawyers are asking the appeals court for leeway to consider the individual circumstances of each teen in custody instead of allowing the case to move forward as an official class or group of litigants.
“Not every delay in a minor’s attempt to obtain an abortion rises to the level of a constitutional violation,” according to the government’s case that will be argued by attorney August E. Flentje.
The injunction, the government says, runs counter to its interest in having minors make abortion decisions in consultation with relatives — rather than while in government custody — and the government’s interest in discouraging illegal immigration.
The case is being heard Wednesday by a three-judge panel made up of Judges Laurence H. Silberman, Sri Srinivasan and Robert L. Wilkins.
Judges Srinivasan and Wilkins voted last fall with the majority to allow immediate access. Kavanaugh dissented.
The government’s filings ahead of oral argument Wednesday paraphrase and quote from Kavanaugh’s dissent, characterizing the injunction as a “radical extension of the Supreme Court’s abortion jurisprudence.”