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Pregnant, undocumented teens can get abortions, judge rules

Judge overrules Trump administration to allow undocumented teens to get abortions

by Carter Sherman
Dec 18 2017, 11:40pm

Two pregnant, undocumented teenagers currently should be allowed to get an abortion while they remain in the custody of the Trump administration, a federal judge ruled Monday. The case will likely fast-track its way to the Supreme Court and, ultimately, decide whether the government can stop unaccompanied minors in detention from getting abortions.

U.S. District Judge Tanya Chutkan ruled that the Trump administration must allow the two teens — dubbed Jane Roe and Jane Poe in court filings — to leave the shelters where they are currently being held by the Office of Refugee Resettlement and be taken to an abortion provider. The administration also can’t force them to reveal their pregnancies to anyone, or to retaliate against the teenagers for seeking abortions.

However, Roe and Poe still won’t be allowed to immediately get their abortions. Chutkan also stayed the order to give the federal government time to appeal the ruling, which it’s expected to do as soon as possible.

In a statement, the Department of Health and Human Services’ Administration for Children and Families said it was “deeply disappointed by the decision to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary.”

“A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor,” the statement continued. “HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions.”

READ: We talked to Jane Doe about her abortion battle

Both of the teens are 17 years old. Roe says she is 10 weeks pregnant, while the government says Poe is 22 weeks pregnant. The ACLU is refusing to release the teens’ locations, but Poe may soon run out of time to get an abortion — though state laws differ on how late into pregnancy an abortion can be performed, a fetus is generally thought to be viable at 24 weeks.

According to court papers, private funds will be used to pay for both Roe and Poe’s abortions.

The ACLU added Roe and Poe’s requests to the still-open case of Jane Doe, another undocumented teenager in federal custody who had to take the Trump administration to court in order to get an abortion. Chutkan initially ruled to allow Doe to get the abortion on Oct. 18, but the D.C. Circuit Court of Appeals overturned that order just a few hours later. Ultimately, however, the court’s full panel of judges weighed in on the case and ruled to allow Doe to get her abortion on Oct. 25.

The Trump administration later filed paperwork alleging that Doe’s lawyers had misled government officials about the timing of her abortion, depriving them of an opportunity to appeal the Circuit Court decision to the Supreme Court. Another government brief is also expected in that case Monday.

Doe’s case remains open as the ACLU seeks to turn it into a class action lawsuit.

“We know that there are hundreds of pregnant young women in ORR’s custody every year,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “We’ve been able to find these three women, but we are certain that there are more out there. And we are hopeful that we can get a ruling that applies to all young women, so we don’t have to hope that they come to our attention and we are able to go to court for each individual young woman.”

The case could also carry implications that go far beyond undocumented teens’ right to abortion. Leah Litman, a professor at the University of California, Irvine School of Law, said that the Trump administration’s argument — that allowing Poe and Roe to get abortions is essentially “facilitating” abortion — is an argument could one day be used to limit the ability of other women in federal custody to seek abortions. Like, say, female inmates who do have citizenship.

Even more broadly, Litman said, “If the government is correct that it is facilitating abortion merely by allowing that abortion to happen, then the government facilitates every abortion by allowing them to happen, because it hasn't outlawed them.”

Antonia Hylton contributed reporting.