In a 2-1 ruling issued Friday, a panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit refrained from ordering the government to immediately allow the girl access to an abortion.
Jane Doe is a 17-year-old undocumented woman who came to the United States without her parents and is now being held in a government-funded shelter in Texas under HHS supervision. If HHS can not find a suitable sponsor in that time frame, the court's order states that the lower court may re-enter its order requiring the government to release her for an abortion, but that order would be subject to appeals.
Texas, Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma and SC all aligned their support behind the federal government's view, writing in supporting briefs "there will be no meaningful limit on the constitutional rights an unlawfully-present alien can invoke simply by trying to enter this country" in reference to if Doe is allowed an abortion as Judge Chutkan ruled.
"However", she added, "we are deeply saddened and troubled that the court has nonetheless ordered the government to facilitate and be complicit in a young girl's abortion by locating an abortion-friendly sponsor for the teen, and has favored access to elective abortion over USA law and policy and the life of an unborn child".
"There are no winners in cases like these". Tonight, the ACLU filed an emergency petition for en banc review which asks all of the judges on the D.C. Circuit Court to review the panel's order. "The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution".
She's believed to be about 15 weeks pregnant. (RELATED: Ruling On Whether Illegal Teen Can Get Abortion In America Hangs In The Balance).
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"The government can not condition the exercise of a constitutional right by women and girls on their surrender of other legal rights", her dissent states. Texas Attorney General Ken Paxton, who had filed an amicus brief with the court defending the Trump administration's policy of preventing abortions for unaccompanied, undocumented minors, expressed disappointment that the court had affirmed Doe's right to an abortion, albeit delaying it.
A lawyer for HHS, however, has argued the government isn't attempting to obstruct the girl from obtaining an abortion. "But there sure are losers".
According to Judge Millett's dissent, the 17-year-old has also complied with Texas state laws requiring her to undergo mandatory counseling and obtain a state court order stating she is mature enough to make up her own mind regarding the termination of her pregnancy. Judge Millet argued, "f$3 orcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices [Jane's] constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason".
After the hearing and before the judge issued her verdict, ACLU attorney Brigitte Amiri said it was clear the government had overstepped its bounds. "We are asking the court to put a stop to this now".
As a result of the exchange between the conservative states, supporters and Administration against supporters of the girl's right to choose, Doe is now the poster child for immigration- and abortion-related matters.
If a government-approved sponsor can not be found for the girl by the court's October 31 deadline, the court noted the teenager would be allowed to return to a lower court which, earlier in the week, ordered the government to allow her access to an abortion "without delay".