Court to decide on abortion access for young migrants

WASHINGTON — President Donald Trump’s administration is claiming broad new authority to block access to abortions sought by migrants in the country without authorization who are younger than 18 and are in its custody.

In a case that brings together immigration and abortion, the Justice Department argued last week before a federal appeals court that the government “has a strong, legitimate and profound interest in the life of the child in the womb.”

But a lawyer for the young migrants said that federal efforts to restrict their access to abortion were “blatantly unconstitutional,” and that Congress had never given the administration “statutory authority to veto a minor’s abortion decision.”

The U.S. Court of Appeals for the District of Columbia Circuit is hearing the case after a district court judge ruled in March that the Trump administration policy was probably against the law because it violated Supreme Court precedents on abortion and nullified a young woman’s “right to make her own reproductive choices.” The judge, Tanya Chutkan, issued a preliminary injunction that prohibits the government from obstructing or interfering with a pregnant minor’s access to abortion services or counseling.

The issue first attracted wide attention in October 2017 when a teenager in Texas known as Jane Doe obtained an abortion over the government’s objection, after the appeals court in Washington allowed it. Judge Brett Kavanaugh, President Donald Trump’s nominee for the Supreme Court, participated in that case and dissented from the ruling. He said it would create “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

In arguing before the appeals court this past week that young unauthorized immigrants had no such right, Justice Department lawyer August Flentje said that any of them who wanted an abortion had the option of returning to their home countries — an assertion that drew skepticism from a panel of judges.

Judge Sri Srinivasan, who presided over the argument in the appeals court, said abortion was not readily available in some of the countries to which they might return. The government, he said, was telling young women who wanted an abortion that they could “leave and go somewhere where that right is not in existence.”

Brigitte Amiri, a lawyer with the American Civil Liberties Union who is representing the young migrants, said the administration — specifically, the Office of Refugee Resettlement in the Department of Health and Human Services — had imposed “a blanket ban on abortion for any minor in government custody.”

The office is headed by Scott Lloyd, a staunch opponent of abortion who has personally tried to dissuade some young migrants from having the procedure. The refugee office, he said, is supposed to be “a place of refuge” and must not participate in “the destruction of an unborn child’s life.”

Chutkan allowed the case to proceed as a class action, on behalf of “all pregnant, unaccompanied immigrant minor children who are or will be” in federal custody.

While the appeals court judges questioned whether the government had the power to deny access to abortions, they also expressed concern about the size of the class certified by Chutkan. The class includes many pregnant young migrants who have not expressed an interest in or desire for abortions.

“Some class members may be personally opposed to abortion” and “suffer no injury” as a result of the government’s policy, Flentje said.

The government said 420 pregnant young migrants were in federal custody at some time in 2017. Eighteen requested abortions. Of that group, 11 obtained abortions, five withdrew their requests and two were released to sponsors, typically family members, federal officials told the court.

In various cases, Flentje said, the Supreme Court has held that “the government does not have to commit any resources to facilitate abortion.” But under Chutkan’s order, he said, the government would have to help arrange transportation for a minor and take other steps that would amount to facilitating an abortion, even though the government would not pay for the procedure.

Before being required to allow an abortion, Flentje said, the government should be given time to try to find a sponsor who could consider the best interests of an immigrant teenager. The government can often find a sponsor in a few weeks, he said, but the time depends on the facts of each case, such as a woman’s age and maturity and the stage of her pregnancy.