Two undocumented immigrants in United States custody must be allowed to have abortions, a federal judge ruled on Monday, objecting to a Trump administration policy.
The immigrants, both 17, entered the United States illegally and are being held in government-run shelters. Under a policy announced in March by the Department of Health and Human Services’ Office of Refugee Resettlement, federally funded shelters cannot take “any action that facilitates” an abortion for an unaccompanied minor without the approval of the office’s director.
Department officials argue that the teenagers, referred to in court documents as Jane Roe and Jane Poe, can obtain abortions by returning to their home countries or finding an American sponsor. But Judge Tanya S. Chutkan noted in her order on Monday that the approval process for potential sponsors is long and complex. In fact, one of Roe’s relatives — a United States citizen — has filed an application but has yet to complete the vetting requirements.
“If defendants are not immediately restrained from prohibiting shelter staff from transporting J.R. and J.P. to abortion facilities or otherwise interfering with or obstructing their access to an abortion,” Judge Chutkan wrote, “J.R. and J.P. will both suffer irreparable injury in the form of, at a minimum, increased risk to their health, and perhaps the permanent inability to obtain a desired abortion to which they are legally entitled.”
Already, Roe’s pregnancy is too far advanced for a medication abortion; instead, she will need surgery. And Poe is in the late second trimester, rapidly approaching the limit for obtaining a legal abortion in the state where she is being held. Brigitte Amiri, one of the American Civil Liberties Union lawyers representing the teenagers, said it was impossible to say exactly how far along Poe’s pregnancy was because she had not been able to get an ultrasound.
The court has moved quickly since the lawsuit was filed on Friday. But Judge Chutkan, of the United States District Court for the District of Columbia, stayed her order for 24 hours to allow for an emergency appeal to the United States Court of Appeals for the District of Columbia Circuit. The government filed that appeal almost immediately, and also asked the Supreme Court for an emergency stay of Judge Chutkan’s order.
On Monday evening, the Court of Appeals extended the stay for an additional day to give itself time to examine the case.
The Administration for Children and Families, of which the Office of Refugee Resettlement is a part, said in a statement on Monday that it was “deeply disappointed in the decision to grant a temporary restraining order that will compel H.H.S. to facilitate abortions for minors when they are not medically necessary.”
“H.H.S.-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,” the statement said.
The abortions would be paid for with private funds, not taxpayer dollars, Judge Chutkan noted in her order. The government, she wrote, is trying to claim “ultimate authority to unilaterally veto the reproductive choices of the unaccompanied minors in its custody.”
The case is very similar to that of another undocumented teenager who had an abortion in October after the District of Columbia appeals court ruled in her favor. The A.C.L.U. has also filed a broader class-action lawsuit, Garza v. Hargan, seeking to stop the Trump administration from limiting unaccompanied minors’ access to abortion. In addition to refusing to facilitate abortions, that lawsuit says, the government has required minors seeking abortions to visit anti-abortion “crisis pregnancy centers.”
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