In a case that's stirring strong emotions on both sides of the abortion debate, a federal appeals court ruled Friday that the government could have until October 31 to find a sponsor to whom it could release the teenager so that she can elect to have the abortion on her own.
The American Civil Liberties Union (ACLU) asked the D.C. Court of Appeals Sunday to re-hear the case of Jane Doe, an unaccompanied minor who is seeking an abortion in Texas which HHS officials have declined to facilitate.
In a two-page order, the court gave the Department of Health & Human Services until 5 p.m. on October 31 to find a sponsor for the girl, at which point she would be free to leave the government's custody and get an abortion.
A federal trial court judge had ruled for the teen, but the U.S. Department of Health and Human Services has appealed.
The appeals court remanded the case to the district court and said that should HHS not be able to secure a sponsor, the order said the lower court could re-enter its temporary restraining order, and the government could then appeal again.
The court's delay, however, could jeopardize the Central American teen's ability to have an abortion under Texas state law, which bans abortion after 20 weeks. HHS says decisions should be made "in the best interests of the child", which might include trying to prevent the girl in question from obtaining an abortion.
The government says the 17-year-old, who entered this country in September, could solve the problem herself by voluntarily leaving or finding a sponsor in the United States to take custody of her. "Entirely shutting off a person's access to abortion services is the greatest conceivable "undue burden" on a person's constitutional right to an abortion - it prohibits her from exercising her rights at all". She ordered the government to transport the teenager, or allow her guardian to transport her, to have the procedure "promptly and without delay".
"In a matter of weeks, J.D. will no longer be able to get an abortion at all, and the government will have forced J.D.to have a child against her will".
"The government's refusal to release [Doe] from custody is not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.'s right to make her own reproductive choice". Millett wrote that the girl "has already been forced by the government to continue an unwanted pregnancy for nearly four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks".
In one email obtained by the ACLU, Scott Lloyd, director of the HHS office that oversees facilities for unaccompanied children, directs a subordinate that facilities that get agency funding "should not be supporting abortion services", but instead providing "only pregnancy services and life-affirming options counseling". Judge Millett claimed requiring the girl to wait until a government-approved sponsor could be found "defies controlling Supreme Court precedent".
"I do not want to be forced to carry a pregnancy to term against my will", the teen said in a statement filed with the court Friday.
Millett wrote that contrary to its argument, the government is not facilitating the abortion.
"There is no constitutional right for a pregnant minor to illegally cross the USA border and get an elective abortion while in federal custody", HHS said in an earlier statement.
Texas Attorney General Ken Paxton was disappointed with the D.C. circuit's ruling as well. "Texas must not become a sanctuary state for abortions". A spokesperson for the Office of Refugee Resettlement said the girl and her unborn baby are receiving excellent care at the shelter.