The bread and butter of the second most powerful court in Washington, the U.S. Court of Appeals for the D.C. Circuit, is administrative law. Since the nerve center of the federal government resides in the capital, a number of the major disputes of our time — on health care, the environment, the powers of the president and his agencies — end up there. Abortion rights aren’t a part of that caseload.
But now that the Trump administration has entered the picture, the D.C. Circuit has been presented with the case of Jane Doe, an unidentified, undocumented teen who was pregnant at the time she was seized at the border by immigration authorities. Because she entered the United States without her parents, J.D., as the 17-year-old is known in court papers, is now in the custody of the Department of Health and Human Services, which has exercised a sort of veto power over her decision to end her pregnancy, now at the 15-week mark.
This was by design. Of all the people Donald Trump could have chosen to lead the Office of Refugee Resettlement — the sub-agency charged with looking after unaccompanied minors — he picked E. Scott Lloyd, a staunch abortion foe who, according to The Wall Street Journal, has personally counseled undocumented teens to try to talk them out of abortions. The agency’s restrictive ways, including the false choice of letting J.D. agree to her deportation or else carry her pregnancy to term, prompted a federal judge earlier this week to blow a fuse and immediately order her released so she could get the procedure.
“I have to tell you, I’m astounded that the government is going to make this 17-year-old girl who has received judicial authorization for a medical procedure to which she is constitutionally authorized choose between a pregnancy that she does not want to go forward with to term or returning to the country from which she left,” fumed U.S. District Judge Tanya Chutkan in open court before her ruling on Wednesday. “Those are her options.”
Predictably, the Trump administration, which has yet to skirt a culture war it doesn’t like, took the fight to the D.C. Circuit. The controversy was so unusual and unprecedented that Chief Judge Merrick Garland, whom you may remember as the Supreme Court justice that never was, ordered the audio of the proceedings livestreamed on its website.
But Garland didn’t preside over the case. Instead, the assignment fell randomly to U.S. Circuit Judge Brett Kavanaugh, a hard-core conservative who is often floated as a potential Trump pick to succeed Justice Anthony Kennedy, who is said to be weighing retirement. On Friday, Kavanaugh opened the emergency hearing by warning that he’d like to avoid a “sweeping constitutional ruling” — a sign that he’d try his darndest to save face, and possibly his chances at a promotion to a higher court, by issuing as minimal a ruling as possible. The three-judge panel was a good draw for Trump, rounded out by U.S. Circuit Judges Karen Henderson and Patricia Millett, appointees of the first President Bush and President Obama, respectively.
The 90-minute hearing for Garza v. Hargan, as the case is known, was in every which way a judicial spectacle unlike any in recent D.C. Circuit history. The session, which is worth listening to in full, was a microcosm of all the constitutional clashes one might expect the Trump administration to jump into: immigration law and the personhood of undocumented immigrants; the plight of unaccompanied minors; the future of Roe v. Wade; federalism and states’ rights; moral opposition, as a matter of federal policy, to a woman’s exercise of her constitutional rights.
The crux of the government’s argument, presented with a straight face by Catherine Dorsey, a career Department of Justice attorney, was that the administration shouldn’t “facilitate” an undocumented minor’s abortion — in part because the government has an interest in “promoting childbirth and protecting fetal life.” At one point, Kavanaugh suggested that letting J.D. go through with the procedure would make the government “complicit” in something it finds morally objectionable.
To Brigitte Amiri, the ACLU attorney representing the teen, this foot-dragging is akin to “standing in the way” and imposing an “undue burden” on her right to end her pregnancy. “Every day matters for J.D. It’s been three weeks. And it’s been three weeks too long,” Amiri told the judges.
The federal government, by law and policy, already facilitates abortions to women in its custody. It is only underage immigrant women during the current administration who cannot exercise their choice. Never mind that J.D. has already gone through all the steps a conservative state like Texas, where she’s in a HHS shelter, has required of her: She’s obtained court permission for the abortion, was assigned a legal guardian, and has attended one session of pre-abortion counseling. Her lawyers have already arranged for transportation and the costs of the procedure. It is a bureaucrat in Washington who is preventing the final step.
Later Friday, the D.C. Circuit, on a 2-to-1 vote, sided with the Trump administration. The sparse, two-page order doesn’t say who wrote it, though it has Kavanaugh’s fingerprints all over it. The court gave the government until the end of the month to secure a “sponsor” — a lengthy administrative process reserved for unaccompanied minors. In the court’s view, this process, if undertaken “expeditiously,” would not “unduly burden the minor’s right under Supreme Court precedent to an abortion.” And yet the government is already on record as wanting no part of facilitating this. There’s no evidence its position will change.
Judge Millett, who did sign her name to a searing, ten-page dissent, exposed the government’s stance for what it is. “That is an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage,” Millett wrote.
She then seemed to train her sights on her two colleagues, as if they were the true obstacle on J.D.’s path. The search for a sponsor, which could add weeks of uncertainty and not turn up a single person, “stands as an immovable barrier to J.D.’s exercise of her constitutional right [in a way] that inflicts irreparable injury without any justification offered for why the government can force her to continue the pregnancy until near the cusp of viability.”
And so concluded the D.C. Circuit’s unlikely foray into the realm of reproductive rights. The ACLU has called the decision “dangerous,” but otherwise hasn’t said what its next play will be. We do have a sense of what the government wants: Push J.D. to the point of inevitability. In the main, the rights and lives of undocumented immigrants may not matter much to the Trump administration; it’s only when a pregnant teen’s future is at stake that “human dignity” must be protected at all costs.