The American Civil Liberties Union is seeking a temporary restraining order from a judge to require federal officials to let two undocumented teenagers get abortion care. According to court papers that were filed on Friday night in federal district court in Washington, D.C., two 17 year-old women who are being held in U.S. custody are being blocked from getting an abortion, and time is running out.
The filing is part of an open-case filed on behalf of the undocumented 17 year-old, Jane Doe, who fought to get an abortion while being held in U.S. custody and won, in October, according to BuzzFeed. The administration recently adopted a new policy that prevents unaccompanied immigrant minors from getting abortion care without direction and approval from the Director of the Office of Refugee Resettlement. Jane Doe, who was detained after crossing the southern U.S. border in Texas, obtained a judicial waiver so she would have the legal authority to get an abortion without parental consent, which is required by law in Texas. However, she was sent to a “crisis pregnancy center,” which dissuade women from getting abortions. On October 25, after a federal appeals court ruled in her favor, she was finally able to obtain an abortion.
The two women, referred to as Jane Roe and Jane Poe, would have their procedures paid for by private funds and shelter staff would transport them to a clinic, BuzzFeed reported. In its filing, the ACLU said the new policy of blocking minors from accessing abortion is “blatantly unconstitutional” under Supreme Court precedent and cited Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Whole Woman’s Health v. Hellerstedt. Planned Parenthood v. Casey recognized that the state can’t impose a regulation that has an undue burden on a person’s right to an abortion and the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that Texas’ restrictions on the delivery of abortion services creates an undue burden for women.
The ALCU also said time is running out for the 17 year olds to access abortion services, particularly Jane Poe, who may not be able to get an abortion in the state she is being held if she waits too much longer.
Defendants’ actions have already caused Ms. Roe to delay her abortion by several weeks. Ms. Poe is in her second trimester of pregnancy and is quickly approaching the point at which abortion will no longer be option; accordingly any further delay (however minimal) risks stripping her of her constitutional right to abortion.
In addition to getting the procedures, the ACLU is also seeking a court order that would stop the federal government from making teens tell parents or sponsors they are pregnant or from any retaliation against them for deciding to have an abortion. According to the filing, government policies require that minors tell parents and sponsors over the minors’ objections and that “compels minors to attend ‘life-affirming’ spiritual counseling.” The ACLU said the two teenagers are at risk of being subjected to this policy and that it violates the minors’ Fifth and First Amendment rights.
When administration lawyers made their argument against Jane Doe’s case in court, they said the government does not have to facilitate access to abortions and argued that these restrictions did not impose an “undue burden” on women trying to access an abortion.
In a court filing, Justice Department lawyers wrote, “There is no precedent, Supreme Court or otherwise, that addresses the issue of whether, if the federal government refuses to facilitate a pregnant unaccompanied minor’s access to abortion while she is in federal custody by virtue of her illegal entry into the United States, that constitutes an ‘undue burden’ on any right to abortion.”