The fight over whether the government must facilitate an illegal immigrant girl obtaining an abortion has exploded into a full-blown legal battle over the future and limits of Roe v. Wade, according to pro-life and pro-choice groups anxiously awaiting a ruling.
A federal appeals court in D.C. heard oral argument on the case Friday and the judges are rushing to rule, with the girl’s advocates saying she’s 15 weeks pregnant and needs to have the abortion now or else she’ll run into later-term restrictions that would make the procedure complicated.
But the Trump administration is balking, saying the 17-year-old girl — known in court documents only as “J.D.” — is a juvenile in the custody of federal health officials in a shelter in Texas, and they cannot facilitate the abortion or else they’ll run afoul of federal prohibitions on spending taxpayer money on abortion.
Texas, meanwhile, says it fears become a “sanctuary state for abortion” if the courts rule in favor of the girl, while pro-life groups say they fear a surge of illegal immigrant women and girls hoping to take advantage of relatively unfettered access to abortion in the U.S.
“This is a case which would incentivize an abortion-import business for illegal immigrant minor girls in defiance of state laws. And who is being asked to run the business? Taxpayers and the government Office of Refugee Resettlement,” said Majorie Dannenfelser, president of the pro-life Susan B. Anthony List.
Judge Brett Kavanaugh, a Bush appointee to the U.S. Circuit Court of Appeals for the District of Columbia, seemed intent on avoiding the big constitutional issues in the case.
During oral argument Friday, he pushed the government to see if it could find a sponsor for the girl, so she can be released from federal custody and the abortion decision pressed into private hands.
Under federal law, unaccompanied alien children (UAC) caught at the border are supposed to be quickly processed by Homeland Security, then released to the Office of Refugee Resettlement at the Health and Human Services Department.
If they have family in the U.S., they are typically sent to them. Otherwise, they are placed in a federally contracted shelter until a sponsor can be found to take them, while they await the outcome of their deportation case.
In the case of J.D., she was alerted she was pregnant by the shelter, which is required to do a medical checkup for new arrivals.
J.D. fled Mexico because of abuse at home, where her parents still live, and she got a judge’s permission to have the abortion, complying with Texas’s informed consent law.
But ORR has said it cannot transport her because that would mean spending taxpayer funds.
The American Civil Liberties Union, which is representing the girl, says it has a doctor lined up to perform the abortion, and there is transportation ready to take the girl.
A lower-court judge ruled Wednesday that the abortion must proceed, but the appeals court halted that ruling Thursday, setting up the high-stakes showdown.
The ACLU told the court Friday the young girl’s constitutional right to an abortion has been violated, and she’s suffering irreparable harm by the government.
“Everyday she remains pregnant takes a toll on her physical and emotional health,” argued Brigitte Amiri, an attorney for the ACLU.
The Trump administration, though, says the girl has other options. She can either get a sponsor in the U.S. — though none has stepped forward yet — or she can agree to be deported back home, where she can follow through with whatever options she has there, outside of U.S. custody.
Congressional Democrats have blasted the Trump administration for fighting the case.
“Rather than personally interfering with health care decisions, ORR facilities and staff should be facilitating access to heath care for those in the government’s custody,” four Democrats — Sens. Robert Menendez, Dianne Feinstein, Patty Murray and Richard Blumenthal — wrote in a letter Thursday.
But pro-life leaders such as Kristan Hawkins, president of Students for Life, have come to the Trump administration’s defense, saying this case is nothing more than “evidence of the abortion industry’s international ambition.”
“Abortion advocates could have sponsored this girl and helped her get an abortion, as tragic as that would be, but instead they are using this teenager in a case to force taxpayer and government involvement in abortions for everyone, including illegal immigrants,” said Ms. Hawkins.
Immigrant-rights advocates, meanwhile, said the case is a test of whether the government will extent constitutional rights to illegal immigrants.
“This administration is not only targeting immigrants for deportation, but now depriving them of basic personal liberties,” said Camille Mackler, director of immigration legal policy at the New York Immigration Coalition. “A woman’s immigration status is not an open invitation to the government to determine what she can do with her own body. The defendant should not have to give up her right to defend herself, in order to exercise another right to have privacy and agency over her own body.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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