DC Circuit Rejects Trump Policy of Blocking Abortions for Undocumented Teens

June 14, 2019 by Dan McCue
The E. Barrett Prettyman Federal Courthouse in Washington, D.C. It currently houses the United States District Court for the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit, and the United States Foreign Intelligence Surveillance Court. (Photo by Dan McCue)

WASHINGTON – The D.C. Circuit Court of Appeals ruled Friday that the Trump administration’s policy of blocking abortions sought by undocumented pregnant teenagers in federal custody cannot “be squared with Supreme Court precedent.”

In 2017, the Trump administration adopted a policy that required Scott Lloyd, then-director of the Office of Refugee Resettlement, to sign off personally on every abortion requested by a minor in federal custody.

Lloyd, an anti-abortion crusader, rejected every one. But matters came to a head in the fall of 2017, when a 17-year-old girl identified only as Jane Doe demanded access to an abortion after being detained at the U.S. border in Texas.

Attorneys for the American Civil Liberties Union, led by Brigitte Amiri, deputy director of the organization’s Reproductive Freedom Project, sued on her behalf in October 2017, asking the court to order the government to allow her to have the procedure, but the Trump administration continued to object.

During an expedited hearing, U.S. District Judge Tanya Chutkan said she was astounded by arguments made by Justice Department attorneys, who claimed Doe did not have a constitutional right to an elective abortion while in federal custody.

Chutkan promptly issued a two-page order, holding the teen would “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.”

In doing so, she also ordered the government to transport the teen “promptly and without delay” to the closest abortion provider.

After the court ordered the government to allow Doe to proceed with her abortion, the ACLU learned of several other young women in government custody who were being prevented from accessing abortion care.

The case was then certified as a class action and Judge Chutkan ordered the policy halted in March 2018.

In the meantime, Lloyd was removed from his post at the Office of Refugee Resettlement, after internal emails and depositions made public as part of the ACLU lawsuit suggested he was devoting much of his time to micromanaging the abortion requests of teenagers in his custody.

He was transferred to the Department of Health and Human Services’ Center for Faith and Opportunity Initiatives.

In its 2-1 decision on Friday, the D.C. District Court of Appeals held that the Trump administration should continue to be stayed while the ACLU case continues to proceed as a class action.

U.S. Circuit Judges Sri Srinivasan and Robert Wilkins, both Obama appointees, found that there is a likelihood that Jane Doe and the other young women who have joined the class action will succeed on their claim that the no-abortion policy “infringes on their protected right to choose to terminate their pregnancies.”

Senior U.S. Circuit Judge Laurence Silberman, a Reagan appointee, filed a dissenting opinion.

The ACLU’s Amiri responded to Friday’s ruling with harsh words for the White House.

“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion was a blatant abuse of power,” she said.

“We are relieved that today’s ruling continues to prevent the policy from taking effect while the case proceeds, and allows the case to proceed as a class action as we continue this fight,” she added.

The ruling comes amid the passage of several state abortion bans intended to push the U.S. Supreme Court to reconsider its decision on Roe v. Wade, the case in which the court found women had a constitutional right to make their own reproductive choices.

“With today’s ruling, we are another step closer to ending this extreme policy once and for all, and securing justice for all of these young women,” Amiri said. “We will continue fighting to make sure that the Trump administration is permanently blocked from obstructing young immigrant minors’ access to crucial health care”

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