WASHINGTON – A D.C. appeals court decided Friday that an illegal-alien teen cannot be denied an abortion but ordered the federal government to find her a private sponsor to ensure the government doesn’t facilitate the procedure.
The court gave the government until Oct. 31 to find a sponsor for the 17-year-old, referred to in court as Jane Doe. The teen was detained in Texas Sept. 7 after crossing the border and has been in custody of a Department of Health and Human Services-funded shelter in the state.
The government’s appeal was in response to an order Wednesday by a lower-court judge to carry out the procedure by Saturday.
While minors who reside in Texas are required to obtain parental consent to get abortions in the state of Texas, District Judge Tanya Chutkan agreed the illegal-alien teen had a “constitutional right” to the procedure.
Federal officials had refused to allow Doe, who is currently 15 weeks pregnant, to leave the detention center and go to a clinic.
Arguing Friday before the D.C. Circuit Court of Appeals, an attorney for the teen, Rochelle Garza, insisted the 17-year old has a “constitutional right” to remain in the United States illegally and to undergo an abortion because the U.S. Supreme Court “has said that the due process clause of the 5th Amendment applies to all persons in the United States and the right to abortion is grounded in the 5th Amendment due process clause.”
“And so there is no reason why her immigration status should be diminished, or should diminish her constitutional right to access abortion,” Garza said.
The defense attorney claimed “the government is causing her irreparable harm” by forcing her to remain pregnant against her will.
A government attorney shot back, however, arguing that the teen can return to her country of origin to terminate her pregnancy.
Garza argued the Supreme Court’s ruling in Shapiro vs. Thompson allowing citizens who move to a different state to apply for government benefits sets a precedent for illegal aliens to obtain a taxpayer-funded abortion.
“Deportation proceedings have not begun against her. She may very well have defenses against those deportation hearings. She should not be forced to give up the right to make those defenses simply because she has exercised her constitutional right to seek an abortion,” Garza said.
“That would be a penalty on access to abortion just like it was in Shapiro vs. Thompson, when the issue was people coming from different states seeking to establish residency before accepting welfare benefits.”
Hours after Judge Chutkan’s order Wednesday, Justice Department lawyers representing Attorney General Jeff Sessions asked for a halt to the order, arguing the teen could wait “a number of weeks” to terminate her pregnancy.
Government lawyers told the judges in their motion that DHHS has a policy of not taking any action that would “facilitate” an abortion and contended that the teen could get an abortion by returning to her country of origin.
DOJ attorneys also argued that allowing Doe to get an abortion funded by taxpayers could “incentivize illegal immigration by pregnant minors.”
“Even if she must choose between leaving the United States and the ability to seek an abortion,” forcing that choice would not violate her rights “because Ms. Doe, as an illegal alien, has no legitimate right to remain in the United States,” they wrote.
The appeals court, on Thursday, postponed the Saturday deadline for the abortion to allow judges to consider the constitutional legalities of providing abortions to an undocumented minor. But the court determined federal officials must allow Doe to attend the pre-abortion counseling session that Texas mandates minors undergo before having an abortion.