Originally published by Politico
A federal appeals court is seeking to defuse a high-profile abortion standoff by giving the Trump administration until the end of the month to find a sponsor for an undocumented pregnant minor being held in a federally funded shelter in Texas.
In the decision issued late Friday, a three-judge panel split 2-1, overturning a decision from a federal judge issued earlier this week that would have allowed the 17-year-old girl to have the abortion immediately.
Instead, the D.C. Circuit Court of Appeals ruling, apparently devised by Judge Brett Kavanaugh, opted to find a path that would dispose of the case without making any precedent-setting decisions. The ruling stated that once federal authorities could find a suitable sponsor for the girl, the administration would have to allow her to follow state law to receive the abortion.
If the administration can't find a sponsor, a federal district court judge would again have the chance to step in and re-issue the order requiring the administration to permit the teen to leave the shelter for an abortion.
The decisions seems unlikely to satisfy either the administration or the American Civil Liberties Union, which represents the teen.
During oral arguments Friday morning, the administration argued that it is entitled to pursue its interest in "childbirth and fetal life" by not facilitating abortion.
The ACLU contended that the Department of Health and Human Services is wielding "unconstitutional veto power" over minors in their custody, because the girl received judicial permission to have an abortion without parental consent and obtained private funds to pay for it, but the shelter, under orders from the administration, has refused to release her for previous appointments.
Kavanaugh, a George W. Bush appointee, suggested Friday morning that the court would try to sidestep the decision of whether the administration should be forced to facilitate an abortion by asking both sides to consider releasing the girl to a guardian of sorts who could counsel her and pursue the abortion if the girl desires it.
"We're being pushed in a span of 24 hours to make a sweeping constitutional ruling in one direction or another," Kavanaugh said during oral arguments that stretched an hour and a half. "When that happens the Supreme Court and this court often look: Are there other avenues to resolving a dispute short of that, initially? ... If she were released to a sponsor, that would resolve the government's objection ... and would allow her to obtain the abortion if she so chooses."
During arguments one of the other judges, Obama appointee Patricia Millett, initially seemed open to further exploring the idea of a "sponsor" who could care for the girl, known as Jane Doe, or J.D. in court filings, outside the privately run, government-funded shelter where she now lives.
However, as the hearing stretched on, Millett sounded less amenable to the idea and more concerned that the time needed to set up such an arrangement would complicate the girl's ability to get an abortion under Texas law.
She eventually dissented from the order issued Friday and issued a forceful criticism of the decision to further delay the girl's abortion so the administration would have time to find a sponsor.
"What is forcing J.D. to carry on this pregnancy is not J.D.’s choice. It is not Texas law. It is the federal government’s refusal to allow an abortion to go forward," Millett wrote. "The sponsorship remand, in short, stands as an immovable barrier to J.D.’s exercise of her constitutional right that inflicts irreparable injury without any justification offered for why the government can force her to continue the pregnancy until near the cusp of viability."
The third judge on the panel, George H.W. Bush appointee Karen Henderson, joined the arguments by telephone and asked fewer questions than the other two.
However, Henderson used unusually harsh language to castigate U.S. District Court Judge Tanya Chutkan over language in the temporary restraining order she issued Wednesday requiring officials from HHS to allow the teen to get the abortion.
"The district court judge made what I think is an appalling comparison between an elective abortion and a tonsillectomy," Henderson said, who concurred with the order issued Friday evening, but will also release more detailed reasoning for her opinion.
While either the administration or the ACLU could try to push the case to the Supreme Court now, the appeals court's less-than-definitive resolution of the issues in the case could muddy the waters for such a move.
On Friday night, the Administration for Children and Families at HHS said: “For however much time we are given, the Office of Refugee Resettlement and HHS will protect the well-being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care.”
Texas Attorney General Ken Paxton, who has filed multiple amicus briefs in support of the administration's position, said in a statement that he was "disappointed" with the court's decision.
If the case does progress to the Supreme Court, Kavanaugh made the note in his ruling that the administration's position was that the court should assume that the girl "possesses a constitutional right to obtain an abortion in the United States" despite her status as an undocumented immigrant.
As the case moves through the courts, the window for the girl’s procedure narrows. On Thursday morning, the girl went for an initial abortion appointment, where a doctor confirmed she is 15 weeks pregnant. The decision means that if the abortion moves forward, the girl will have to have the procedure in an ambulatory surgical center or hospital. Texas bans abortion in most cases after 20 weeks.
"There is no guarantee that getting Jane Doe a sponsor will allow her to access an abortion in an expeditious manner," said Susan Hays at Jane's Due Process, which represents pregnant minors in Texas, and is helping cover the girl's costs, in a statement. "Punting the issue for eleven more days is a further violation of her rights by forcing her to delay her abortion and later obtain a more invasive, lengthier, more uncomfortable, and more expensive procedure."
Hays told POLITICO that she believes that the administration has been actively discouraging sponsors, who are often undocumented themselves, to step forward.