On Wednesday, the Department of Justice (DOJ) appeared in court to argue that the government has the right to stop detained undocumented teens from getting an abortion.
In March, a federal court temporarily blocked the Trump administration from interfering with any detained immigrant’s right to get an abortion. Since then, 12 young, immigrant women in federal custody have received information or access to abortion services.
Now, the DOJ is asking a higher court to void this district court’s decision, arguing the administration is not violating Supreme Court abortion precedent because immigrants have, for example, the option to self-deport should they want an abortion.
The D.C. Circuit Court of Appeals will soon decide to either side with the DOJ or the American Civil Liberties Union (ACLU), who’s defending these detained minors in court and arguing that the administration is violating the legal right to abortion afforded by Roe v. Wade.
By way of background, the ACLU originally filed the lawsuit last year against the administration on behalf of Jane Doe, a 17-year-old immigrant detained in federal custody whom the government tried to block from getting an abortion. Doe successfully terminated her pregnancy more than a month after she made the decision after federal courts demanded the government stop interfering.
Meanwhile, the ACLU learned of several other young women in the custody of the Office of Refugee Resettlement (ORR) who were being prevented from receiving abortion care. That means Doe’s case wasn’t an isolated incident, but part of ORR policy enforced by its anti-choice leader Scott Lloyd. Because of this, the ACLU decided to continue the case and successfully certified it as a class action lawsuit on behalf of all minors in ORR care, aiming to permanently stop this practice.
“This is an unprecedented expansion of abortion jurisprudence,” DOJ lawyer August Flentje told a three-judge panel on Wednesday.
Flentje rejected the March ruling that the administration has “an absolute veto over the reproductive decision of any young woman in custody” and that veto is an “undue burden” prohibited by Supreme Court’s abortion precedents. He argued that minors can leave at any time — be it with a sponsor or by voluntary departure from the United States. The administration is interested in “preserving life” and so shouldn’t have to facilitate abortion services, he said.
“The burden is created by the minor crossing illegally—not by the government,” Flentje said. “When the person is able to choose to go back to her country of nationality, there is no undue burden imposed by the government.”
But two of the three judges didn’t sound convinced.
“It’s a right to terminate a pregnancy without a substantial obstacle put in the way by the U.S. government. You seem to be saying that’s alright because she can leave the country. If she leaves the country, what happens? The right is gone,” said Judge Sri Srinivasan. “I don’t understand the argument that says an unaccompanied minor has the right to terminate a pregnancy and the answer to the right is you can leave and go somewhere where that right is not in existence.”
Judge Srinivasan clarified the DOJ’s actual position: “They do have the same right but not quite the same right.”
Later, the ACLU argued that by forcing an immigrant to leave the United States to have an abortion, the government is effectively penalizing them for exercising their right to abortion.
Judges were more sympathetic to the government’s point that the district court’s March ruling was too broad in scope, as it applied to “all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government.” And these situations vary case-by-case, the DOJ lawyer argued.
Judge Laurence Silberman pointed out “all” would include migrants who religiously oppose abortion and, thus, would be injured by the lawsuit. Judge Robert Wilkins wasn’t even sure if every immigrant minor had a common injury, thus questioning the validity of a class action lawsuit.
“How is there an injury if a person doesn’t express an injury?” he asked ACLU lawyer Brigitte Amiri. He humored the idea of limiting the class to people who ask about or want to receive abortion services.
Amiri said all pregnant minors are subject to the same injury because ORR is coercing all of them into having the baby by, for example, forcing them to go to crisis pregnancy centers that fundamentally oppose abortion. And given that the government is not providing neutral pregnancy counseling to “the most marginalized” group, these individuals may not even know they have the right to abortion care so won’t even mutter the word.
Judge Sri Srinivasan, for his part, appeared to understand the need for flexibility, saying “it’s not a… choice decided at time zero” because someone can change their mind to terminate the pregnancy at any time.
Later to reporters, Amiri expressed concern if the court decides to limit the class. The appeals court may remand the case back to the district court — thus punting the decision to the lower court to decide who should be included in the class, she said. The question then becomes: Will the initial ruling to block the government from interfering stay in place as the lawsuit is argued in full?
This case, Azar v. Garza, was discussed at great length during Judge Brett Kavanaugh’s confirmation hearing earlier this month, as it was his only abortion case. He’ll testify again before Congress on Thursday, but this time about allegedly sexually assaulting Christine Blasey Ford. The deputy director of the ACLU Reproductive Freedom Project Brigitte Amiri told ThinkProgress by phone on Tuesday that the timing is “ironic.”
Allegations against Kavanaugh have become the ultimate test for the #MeToo movement. But how the United States treats its most vulnerable women is also under the guise of #MeToo. This is especially pronounced in the case of another plantiff, “Jane Poe,” who became pregnant after being raped and definitively wanted an abortion but the Trump administration aimed to deny her that choice.
“These are issues of making a decision about your body… A powerful man is making decisions about women’s bodily autonomy,” Amiri said to ThinkProgress, of Lloyd.