UPDATE: Federal Appeals Court Rules That Undocumented Teen Can Obtain Abortion

By Sameer Rao Oct 19, 2017

Update, October 24, 4:00 p.m. ET:

A federal appeals court in the District of Columbia ruled that the U.S. government must grant an undocumented pregnant teen being held in a Texas detention center with access to an abortion, Buzzfeed News reports. A majority of the active judges overruled last week’s order that gave the Department of Health and Human Services 11 days to find a sponsor for the pregnant teen. If the Trump administration’s Department of Justice decides to challenge the new order, the next legal step would take place in the U.S. Supreme Court.


Update, October 23, 10:00 a.m ET:

The New York Times reports that the U.S. Appeals Court for the District of Columbia Circuit granted the Departments of Justice and Health and Human Services an emergency stay on Friday (October 20). The ruling gives the Health and Human Services department 11 days, beginning Friday, to find a sponsor for the undocumented teenager. The new order further delays the undocumented teenager’s access to an abortion. 


The Department of Justice (DOJ) quickly appealed a district court judge’s ruling that the government must provide an undocumented pregnant teen who is currently being held in a Texas detention center with access to an abortion. 

The Associated Press reports that U.S. District Court for the District of Columbia judge Tanya Chutkan ruled in favor of the unnamed girl in Garza v. Hargan. The American Civil Liberties Union (ACLU) helped bring the suit, which names Department of Health and Human Services (HHS) acting secretary Eric Hargan, acting assistant secretary Stephen Wagner and Scott Lloyd, director of the HHS Office of Refugee Resettlement, as defendants.

Chutkan’s October 18 ruling, which refers to the teen as "Jane Doe" and "J.D.," says that HHS is "required to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay to the abortion provider closest to J.D.’s shelter in order to obtain the counseling required by state law on October 19, 2017, and to obtain the abortion procedure on October 20, 2017 and/or October 21, 2017, as dictated by the abortion providers’ availability and any medical requirements."

The ruling also protects the teenager from retaliatory treatment, including the withholding of her documents if the trip involves crossing a border checkpoint. It enforces an earlier court order allowing the abortion by permitting her transport from and back to the detention center. 

The AP reports that the teen is about 15 weeks pregnant, which puts her within Texas’ 20-week timeframe for the procedure. The ACLU argued that the center refused to let her go to an abortion clinic, instead diverting her to a crisis center that discourages abortion.

This action is consistent with Lloyd’s anti-abortion position. The AP cites an email, obtained by the ACLU, in which Lloyd told a subordinate that facilities receiving agency funding "should not be supporting abortion services." The Texas detention center is one such facility.

The AP reports that Chutkan challenged the government’s argument that the girl could go back to her country of origin for the procedure. “Residents of this shelter receive medical treatment all the time,” Chutkan said. “Why is this any different? Why is the fact that this is an abortion any different than if she was getting her tonsils out?”

An HHS statement to The AP called the ruling "troubling" and promised "next steps to ensure our country does not become an open sanctuary for taxpayer-supported abortions by minors crossing the border illegally.”

Those "next steps" came from the DOJ, which oversees border enforcement. Slate reports that the DOJ filed for an emergency stay of the order just hours after Chutkan’s ruling, calling the government’s prohibition "consistent with its legitimate interest in promoting fetal life and childbirth over abortion." A three-judge panel from the U.S. Appeals Court for the District of Columbia Circuit will hear the government’s oral argument tomorrow (October 20).