Appellate court: Not so fast on abortion order for illegal-immigrant teen

Does the US have a duty to provide access for underaged illegal aliens in their custody to obtain abortions? That sounds like a question designed to touch as many culture war hot buttons as possible, but that scenario has played out in Texas and in federal courts this week. District Court Judge Tanya Chutkan ordered the Department of Health and Human Services to release her long enough to seek the abortion a 17-year-old detainee seeks after the ACLU took up the case:

In U.S. District Court in Washington, D.C, Judge Tanya S. Chutkan on Wednesday ordered administration officials to allow a 17-year-old teenager, identified only as Jane Doe, to be taken to an clinic “promptly and without delay” and receive an abortion Friday or Saturday.

Otherwise, the girl “will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled,” the judge ruled.

She is believed to be 14 and 1/2 weeks pregnant and Texas law only allows women to terminate pregnancies before 20 weeks.

Why HHS and not Homeland Security? HHS runs this particular detention facility as part of its jurisdiction over unaccompanied minor illegal aliens. At 17, the teen is on the cusp of that custody, but this case will play out one way or the other before she turns 18 and gets handled as an adult in the system.

According to multiple reports, Chutkan appeared incensed that detention officials managed to have the resources to take the girl to a crisis-pregnancy counseling clinic to talk her out of the abortion, while arguing that they didn’t have the resources to take her to an abortion clinic. The order to immediately allow her access to an abortion appears to have been somewhat punitive. That may explain why the Fifth Circuit put a stay on the ruling while they review the case:

A federal appeals court has temporarily blocked a judge’s ruling that would have allowed a detained teenager who is in the U.S. illegally to have an abortion, in the latest twist in a legal battle between the ACLU and the Trump administration. …

Federal and state officials have said that because of the young woman’s immigration status, she has no inherent right to an elective abortion in the U.S.

The temporary stay on District Judge Tanya Chutkan’s order comes one day after Chutkan “ordered the government to transport the teenager, or allow her guardian to transport her, to have the procedure ‘promptly and without delay,'” as NPR’s Richard Gonzales reported on Wednesday.

In an emergency filing, HHS argued that the teen had other choices, including a return to her legal jurisdiction, and that their policy forbids any facilitation of abortion in all but a few exceptional circumstances:

HHS argued to the appeals court that the department had a policy of “refusing to facilitate abortions” except in “very limited circumstances.” It said the teen could instead ask to be returned to her country of origin. Her lawyers have said she is from Central America and crossed into the United States in September.

That might present the flip side of the “anchor baby” issue. If she’s 15 weeks pregnant now and got here six or seven weeks ago, it’s very likely she knew of her pregnancy and came to the US to have the abortion. HHS argued in the initial case before Chutkan that they have a compelling state interest in avoiding the creation of an incentive for state-facilitated abortion. The ACLU argued that the teen has found benefactors to pay for the abortion and that this does not create an incentive for illegal entry, but given how fast this became a national story, HHS has a point.

The stay does not mean that the court will vacate Chutkan’s ruling, or even indicate any likelihood of doing so, as a temporary injunction might suggest. They want an opportunity to review the case a little more rationally and weigh the circumstances and the consequences. If courts begin ruling that those who enter the country illegally have a right to be released to access abortion clinics, then perhaps Congress needs to address that in future legislation.