Constitution Daily

Smart conversation from the National Constitution Center

The legal battle over teen abortion goes on

June 4, 2018 by Lyle Denniston


Overtaken by changing developments in lower courts, the Supreme Court acted narrowly on Monday to end one of the challenges to the Trump Administration policy of refusing to allow abortions for undocumented teenagers being held in official detention centers after entering the country illegally.  In a five-page, unsigned opinion, the Court said the initial test case no longer had any legal significance after the young woman had an abortion arranged by her lawyers.

But the end of the so-called “Jane Doe” case was not a victory for the Administration: the Justices did not order lower courts to end all such challenges, as government lawyers had asked, and neither did the Court impose any disciplinary action on the young woman’s lawyers, as the government wanted.

Meanwhile, the judge who initially granted a right to abortion for the young woman has broadened the case to include all undocumented teenagers who enter detention and are or become pregnant, and has ordered officials not to interfere with those procedures.   That broader order is now on appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

Monday’s actions by the Justices, which showed no dissenting votes, wiped out an earlier ruling by the D.C. Circuit declaring that the young women in detention do have a constitutional right to end their pregnancies, if they get permission as required by a state judge where they are held.  The fact that that ruling has now been erased by the Supreme Court does not appear to undermine the new round of activity before the judge in Washington, D.C.

The Administration, however, is expected to use the Justices’ new ruling as support for its continuing efforts in the lower courts to regain complete control over access to abortions for undocumented teenagers held in immigration detention.

The D.C. Circuit is now considering the government’s plea to overturn the Washington judge’s latest orders supporting abortion rights for those teenagers, and to block those orders in the meantime.

The “Jane Doe” case has been pending before the Supreme Court since November.  The Justices have seemed unable to get to it, or to make up their minds what to do with it.  The Court’s staff submitted the case to the Justices for consideration more than a dozen times, before the action finally came on Monday.

The Justices indicated that they were simply following a host or past precedents in wiping out the lower court ruling in favor of “Jane Doe” after the dispute became “moot” when she had an abortion.  In essence, the opinion indicated, there was nothing left to decide.

While the opinion contained some implied criticism that the young woman’s lawyers might not have kept government lawyers fully informed of their swift action in arranging for her abortion, denying the government the opportunity to seek help in the Supreme Court to prevent the abortion, the opinion also noted that her lawyers had an obligation to defend her interests.   It simply took no action on the government’s specific request to punish her lawyers for alleged ethical misconduct.

The opinion issued Monday contained no hint of how the Justices themselves might rule on such disputes when and if the continuing case reaches them in the future.


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