Constitution Daily

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Justices move ahead on dispute over teen abortions

December 21, 2017 by Lyle Denniston


The Supreme Court plans to take up at its first private conference in the new year the intense, ongoing fight over an unsettled constitutional question – do undocumented immigrant teenagers who are pregnant have a right to an abortion? That question remains open even though three of those young women have had abortions or are now free to have the procedure.

The Justices are now scheduled to discuss on January 5 the Trump Administration’s appeal, seeking a clear-cut ruling that government officials have no legal duty to do anything to help secure abortions for teenagers being held in custody after they entered the country illegally.

Underlying that goal is the basic question that the Administration has so far not addressed: do those young women have a right to an abortion at all? Arguing only against facilitating abortions, the Administration has not given its own view on the more important constitutional question even though Texas and 10 other states have made repeated efforts to get three federal courts to rule that, as illegal entrants to the U.S. with no more tie to this country than the fact that they are detained by the government, the young immigrants have no constitutional rights, including no right to an abortion.

So far, only one of those courts – the U.S. Court of Appeals for the D.C. Circuit – has given a tentative answer: yes, those teenagers have a right to an abortion, if it is clear that their choice is an informed one. That ruling in October was not a final one on the constitutional question, but it is being challenged in the Administration appeal now moving ahead in the Supreme Court.

The weeks-long legal saga over those teenagers has led to a confusing array of court orders with the factual result that three of those young women – two 17-year-olds and a 19-year-old – have been given permission to end their pregnancies. One is known to have done so, but whether the other two also have is unclear, because their lawyers are protecting their privacy.

Each of them has been referred to only by fictitious names – Jane Doe, Jane Roe and Jane Poe.

The Jane Doe case, involving a 17-year-old who was discovered to be pregnant after she entered the country, led the Administration to take the controversy to the Supreme Court. The appeal seeks to bar a federal trial judge in Washington, D.C., from going forward with a lawsuit that is aimed at defending abortion rights for any undocumented teenager in federal custody who is or who becomes pregnant.

The Administration has taken the position in all of the cases that prior Supreme Court rulings on abortion rights give the government the option of refusing to “facilitate” a teenager’s abortion, in order to protect fetal life. It also has argued that allowing undocumented teenagers to obtain abortions will encourage more such young women to enter the U.S. to have abortions.

In the case of the teenager known as Jane Poe, the Administration stopped its challenge to her abortion after it became clear that she was 22 weeks pregnant, and any delays in having the procedure could put her in a legal category where an abortion would be illegal under existing law. Administration lawyers never explicitly conceded that she had a right to abortion, but opted to end its objection.

It similarly withdrew its objection when it discovered that one of the young women (Jane Roe) is 19 years old, not 17, and, as an adult, it appeared to concede by implication, she had a right to choose to have an abortion.

The case now awaiting the Supreme Court’s attention is only focused on the court fight over Jane Doe, even though she has had an abortion. The appeal protests that Jane Doe’s lawyers deceived the government’s lawyers about her status, so that she could get an abortion before the Administration could go to the Supreme Court in an effort to stop the abortion. So, the Administration has asked the Justices to impose some form of discipline on the young woman’s lawyers.

The more important part of that appeal, though, is the Administration’s request for the Justices to answer this question: should lower courts be ordered to dismiss all claims for release from detention regarding minors who entered the country alone and are or were found to be pregnant?

Although the appeal spends much of its argument on the facts of the case in order to bolster the claim that the Administration was deceived by the other side’s lawyers, the document does reach the argument why the continuing case in the trial court should be ended, so that no more detained teenagers would be allowed to be released to have abortions.

Since the Supreme Court has ruled that women in general have a constitutional right to choose to have an abortion, and that government may not impose an “undue burden” on that right, the Trump legal team takes the view that failing to facilitate an abortion does not impose any such burden.

It contends that any undocumented teenager being held in custody will be allowed to leave if she would either return to her native country, or if she were able to get a sponsor with whom she could live in the U.S., so it is her choice not to take or pursue one of those options. “Given those options,” the document argued, “the government was under no obligation to facilitate Ms. Doe’s abortion….Under this Court’s case law, the government may adopt policies favoring life over abortion.”

The lawyers for Jane Doe have countered by arguing that the Justices should simply deny review of the government’s petition. There is no final lower court decision on abortion rights that could be reviewed, the opposing brief contended; all that was decided was whether the government had made a case to delay Jane Doe’s release from detention to have an abortion.

Those lawyers also oppose a ruling that would bar the continuation of the underlying lawsuit on behalf of all detained teenagers who are or might become pregnant. The D.C. Circuit Court has made no final decision on the abortion rights issue, the brief said, and when there is such a decision in the lower court, the Administration could then appeal it.

Jane Doe’s lawyers also argue against any disciplinary action for the way they have defended the rights they believe Jane Doe has.

The first issue the Justices will confront at their January 5 conference is whether to grant review. If they do accept the case, it could be decided before the end of the current term, probably in late June.

Even though the Administration may not make an argument on the question of whether undocumented teenagers do have a right to an abortion, the 11-state coalition led by Texas has already filed a friend-of-court brief urging the Justices to rule explicitly that “unlawfully-present aliens with virtually no connections to the United States have no constitutional right to an elective abortion.”

(There will be no further proceedings in the specific case of “Jane Poe” because she is said to be 19 years old, and there will be only secondary issues in the lower courts on “Jane Roe” because the Administration earlier this week ended its most important challenge in her case, both in the lower courts and in a separate challenge they had attempted in the Supreme Court.)


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