In the latest stage of a seesaw battle through the federal courts, a 6-3 majority of the full D.C. Court of Appeals today overruled a three-judge panel and ordered the Trump administration to let a 17-year-old undocumented immigrant in its custody obtain an abortion.
The Court instructed D.C. District Court judge Tanya Chutkan, who last week took vocal exception to the government’s position, to schedule the young woman (known as Jane Doe in the proceedings) for her abortion, which all parties agree is perfectly legal. The big question now is whether the administration will appeal the appeals court’s decision to the U.S. Supreme Court — and, if the Court does agree to hear the case, whether it will happen before the case becomes moot.
The Court of Appeals’ order was issued without a formal opinion, though two judges who participated on opposite sides in the three-judge panel’s deliberations issued their own concurring and dissenting opinions. Most notably, Judge Brett Kavanaugh — who fashioned the earlier panel’s ruling allowing the government to find a family-or-friends “sponsor” upon whom to dump the responsibility of providing or denying Jane Doe access to an abortion — penned a dissent. He decried the decision to allow “unlawful immigrant minors to have an immediate abortion on demand.” Probably not coincidentally, Kavanaugh is on a lot of short lists for a GOP appointment to the Supreme Court.
Speaking of SCOTUS, the question now is whether the government will continue to inflate this case into a latter-day rendition of the 2005 Terri Schiavo saga by appealing the latest ruling to the highest court in the land. The odds of ultimately prevailing there are low: Just last year the Court reaffirmed the standard that abortion restrictions could not constitutionally impose an “undue burden” on the right to choose, which imprisoning someone most obviously abrogates. That was a 6-3 decision, so Justice Gorsuch only makes the pro-choice margin closer.
It only takes four Justices, however, to grant a case a hearing, so if the four anti-abortion Justices decide to do that, they can. Without that, the abortion could soon be performed, making the whole controversy moot. A more complicated question is whether the Court would grant a stay against the lower court’s ruling; that normally requires five Justices.
If the administration can plausibly get to a SCOTUS hearing of any sort, however, it might choose to do so in order to burnish its credentials with the right-to-life movement and the conservative evangelical and Catholic voters who support it — and to dramatize what a second Trump term might accomplish, if given a chance to further change the Court’s composition.
If this does, like the Schiavo affair, simply turn into Kabuki theater, then at least in the meantime Jane Doe will get a chance to reassert control over her reproductive system, while displaying exactly how far this administration is willing to go to control it for her.