Trump Administration and Appeals Court Continue To Keep Imprisoned Immigrant From Having a Legal Abortion

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The swing vote on the Court of Appeals panel hearing this case is conservative Brett Kavanaugh, whose Supreme Court ambitions could be on the line. Photo: Dennis Brack/Bloomberg via Getty Images

Every now and then the dictates of ideology and advocacy-group pressure cause people in government to do things with terrible — if revealing — political optics. For conservatives and Republicans, the classic example was the Terri Schiavo saga of 2005, in which a Republican president and Congress intervened in a state family-law case at the behest of right-to-life activists trying to keep a woman in a persistent vegetative state alive against the wishes of her husband. Public opinion trended steadily against the GOP’s position, but Republicans seemed trapped by their “principles” into a no-win situation.

The same thing could be happening today in a judicial controversy over a 17-year-old pregnant undocumented immigrant who is being kept by her federal jailers from having a completely legal abortion. To make a long story short, the Office of Refugee Resettlement, which is run by a Trump-appointed anti-abortion activist, has kept this woman (an anonymous Jane Doe in the court proceedings) from obtaining abortion services while also forcing her to receive anti-abortion counseling. It appears the ORR is running out the clock, stalling until her pregnancy has passed the 20-week mark, over which abortion is banned in Texas (where she is being detained). Earlier this week, D.C. District Court Judge Tanya Chutkan ordered the ORR to let the woman have her abortion, and seemed shocked by the government’s argument that she should have to return (in effect, self-deport) to her country of origin or carry the pregnancy to term.

The Trump administration promptly appealed Chutkan’s order to a three-judge panel of the D.C. Circuit Court of Appeals, which has ruled that the government can continue to refuse abortion services to Jane Doe until October 31, ostensibly to give OSS time to find a sponsor (typically a family member) who can take responsibility for her and her reproductive decisions. After that date, if the “problem” of Jane Doe’s constitutional rights have not been handed off to someone else, it’s unclear what will happen.

In the arguments before the Court of Appeals, it was clear the government’s lawyers saw nothing strange about in effect arguing it had the right to imprison a woman to stop her from exercising a constitutional right that even incarcerated criminals have access to. Their attitude seems to be that any time they are in a position to force a pregnancy to be carried to term, they can, because otherwise they are “affirmatively facilitating” an abortion, which courts have recognized they are not obliged to do. Another factor in the case is that the woman appears to have been abused — perhaps sexually — in her country of origin. Being forced back without a hearing is inhumane.

It appears the appeals court’s decision to continue Jane Doe’s imprisonment by OSS while instructing the agency to look for someone else to deal with her was the handiwork of a judge for which this case is a real hot potato, as Ian Millhiser explains:

The outcome of the [Garza v. Hargan] case — or, at least, the outcome of the panel’s vote — is likely to hinge on Judge Brett Kavanaugh, a conservative George W. Bush appointee who is widely viewed as a possible Supreme Court nominee in a Republican administration….


Kavanaugh…seemed eager to make this case go away. He asked again and again about whether a sponsor could be found to take custody of J.D., effectively mooting the case in the process.

Kavanaugh would effectively be sacrificing any serious chance of making it to SCOTUS if he acts in a manner that paves the way for Jane Doe to control her reproductive decisions. For all its endless and interminable and redundant talk about late-term abortions, the fact remains that the RTL movement wants to prohibit all abortions from the moment of conception. That’s what makes this case a Terri Schiavo moment: It reveals the underlying extremism of an important constituency group and the hold it has over one of America’s two major political parties. As Michelle Goldberg pointed out in the New York Times today, the man running ORR, E. Scott Lloyd, is not someone who is going to respect any woman’s reproductive rights:

Writing in The National Catholic Register in 2009, [Lloyd] proposed that women receiving Title X family planning assistance forfeit the option to end their pregnancies. “I suggest that the American people make a deal with women: So long as you are using the condom, pill or patch I am providing with my money, you are going to promise not to have an abortion if the contraception fails, which it often does,” he wrote. “You will put the baby up for adoption if you don’t want him or her. We can do this by having the woman sign a pledge.”

Lloyd has also involved himself personally in efforts to keep women in his agency’s custody from having abortions. He’s a jailer on a mission.

Jane Doe is currently 15-weeks pregnant, so the clock is indeed running out on access to the legal abortion she should have been able to have some time ago. If OSS cannot–or will not–find a sponsor by Halloween, the issue will come back to the Court of Appeals, and after that, could wind up on the docket of the U.S. Supreme Court.

In the Schiavo case, SCOTUS refused to review a state-court decision upholding the right of the husband to terminate his wife’s care. It’s unlikely the same majority that upheld the “undue burden” standard for state abortion restrictions in the Whole Women’s Health case last year — another Texas case — will decide it’s okay for the federal government to literally hold a woman in custody until it’s too late for her to secure an abortion. But in the meantime, the extremism of the RTL movement and its prisoners in the Trump administration will be on full display.

Imprisoned Immigrant Fights in Court for Right to Abortion