A federal appeals court Friday dissolved a lower court order that required the Trump administration to allow an abortion for a 17-year-old immigrant who is in federal custody in Texas after illegally crossing the border with Mexico.
The U.S. Circuit Court of Appeals for the District of Columbia gave administration officials until Oct. 31 to find a relative or other qualified adult willing to act as the teen’s sponsor in the United States — removing her from federal custody and allowing her access to an abortion she has been fighting more than three weeks to get.
If no sponsor is found by Oct. 31, the lower court could reissue its order directing federal officials to stop blocking the teenager from receiving an abortion. If so, however, the Justice Department could appeal again, Friday’s 2-1 ruling said.
The delay means the teen, 15 weeks pregnant and identified only as Jane Doe or JD, will have to cancel a weekend appointment at a Texas abortion clinic and could further complicate her attempts to have an abortion, lawyers said.
In oral arguments before the appeals court Friday morning, a Justice Department lawyer said the government’s interest in promoting childbirth over abortion allows federal officials to avoid any actions that would allow Doe to have an abortion.
“The government is refusing to facilitate an abortion, which it is permitted to do,” said the lawyer, Catherine Dorsey.
But Doe’s lawyer argued that government officials are enforcing illegal “veto power” over the teen’s decision to exercise her constitutional right to an abortion.
“They are supplanting their decision about what JD should do with her pregnancy, and that is not acting in her best interest,” said Brigitte Amiri, a lawyer with the American Civil Liberties Union.
If allowed, the abortion would be paid for with private money, the ACLU has said.
Doe’s case has drawn national attention, serving as a proxy battle over two hot-button issues — the right to abortion and federal immigration policy.
Abortion rights advocates blasted Friday’s decision.
“The anti-choice GOP is using this young woman as a pawn for their extremist ideology,” NARAL President Ilyse Hogue said. “The Trump administration is holding Jane Doe hostage and forcing her to remain pregnant against her will.”
Texas Attorney General Ken Paxton, an outspoken opponent of abortion, said he was disappointed that the court left open an avenue for Doe to seek an abortion, adding that the ruling could provide an incentive for other pregnant immigrants to travel to Texas for the procedure.
“Texas must not become a sanctuary state for abortions,” he said.
On Wednesday, a federal district judge ordered officials with the Office of Refugee Resettlement to let Doe leave her government-financed shelter to get an abortion Friday or Saturday.
At the Trump administration’s request, the appeals court halted that order on Thursday to allow time for oral arguments, although Doe was allowed to attend her Thursday pre-abortion counseling session, which under Texas law must take place at least 24 hours before the procedure.
The Trump administration’s lawyer argued Friday that federal officials were not standing in Doe’s way by failing to “facilitate” her access to abortion because she has two options for leaving federal custody — she could voluntarily leave the country or she could be placed with a sponsor, typically a relative, who is already in the United States.
“The government is not preventing, blocking or imposing any (impermissible) obstacle on Miss Doe’s pursuit of an abortion here,” Dorsey said.
Justice Brett Kavanaugh latched onto the sponsor option, noting that it would allow the court to avoid a sticky constitutional question and get Doe out of federal custody, giving her access to an abortion while saving government officials from having to approve the procedure.
Lawyers on both sides, however, could not answer whether a sponsor could be found quickly enough, although the Justice Department lawyer said that Doe identified two relatives — one who declined to be a sponsor, while the other is a single man, raising concerns for her safety.
Justice Patricia Millett — the only member of the court panel appointed by a Democrat, President Barack Obama — dissented, saying Friday’s action will add weeks to Doe’s pregnancy.
“Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices JD’s constitutional liberty, autonomy and personal dignity for no justifiable governmental reason,” Millett wrote.