In an order issued this morning, the D.C. Circuit Court of Appeals said the federal government can continue to prevent a 17-year-old girl in a government shelter from getting an abortion, at least until the appeals court can consider the case.
The order temporarily blocks a Wednesday ruling from a federal judge, who said the government must allow the girl, referred to as Jane Doe in court filings, to obtain an abortion at a Texas clinic.
According to the court’s order, the girl still must be allowed to make her first appointment at the clinic today for a sonogram and counseling session, which Texas law requires at least 24 hours before an abortion.
A panel of three judges – Karen L. Henderson, Brett Kavanaugh and Patricia Millett – will decide whether she can return Friday for an abortion. Judges will hear arguments on the appeal Friday morning.
The American Civil Liberties Union, which is representing the girl, has produced internal emails from the Department of Health and Human Services’ Office of Refugee Resettlement suggesting the agency has quietly implemented a new policy banning abortion for immigrant minors in its care. The office’s new director under President Donald Trump, Scott Lloyd, has told his staff to refer pregnant girls to religious pregnancy counseling instead of abortion clinics. In at least one case, he has personally met with a girl considering abortion.
ACLU attorney Brigitte Amiri has said shelter staff have prevented Doe from leaving the shelter for two different appointments at a South Texas abortion clinic, under direction from federal officials, despite a state judge’s order that she be allowed to leave with a court-appointed guardian.
In an appeal Wednesday night, the Justice Department argued that the government was not infringing on the girl’s right to an abortion; its actions simply are a “refusal to facilitate an abortion.” If Doe wants to end her pregnancy, the government argued, she need only drop her immigration case and return home.
A statement issued Wednesday by the Administration for Children and Families at the U.S. Department of Health and Human Services goes further, arguing that the judge’s decision “sets a dangerous precedent by opening our borders to any illegal children seeking taxpayer-supported, elective abortions. … We will consider our next steps to ensure our country does not become an open sanctuary for taxpayer-supported abortions by minors crossing the border illegally.”
That broad concern from the agency closely tracks with an argument first introduced last week by Texas Attorney General Ken Paxton, who claimed that letting Doe end her pregnancy would give Texas a reputation as an “abortion sanctuary,” drawing more pregnant girls into the country for free abortions. Attorneys general in eight states – Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma and South Carolina – have signed on to Paxton’s argument.
According to court records, Doe has independently lined up funding for her abortion. Before Lloyd took over as director, the Office of Refugee Resettlement did pay for some minors to end pregnancies resulting from rape or incest.
Statistics in emails filed in the court record don’t support the notion that girls were entering the country for government-funded abortions. From 2014 to 2015, the Office of Refugee Resettlement had 1,176 pregnant girls in its care. Seventeen got abortions, 10 paid for by the agency.