Appeals court ruling delays abortion for immigrant in Texas

Oct. 21--Updated at 4:40 p.m.

A federal appeals court gave the Trump administration until Oct. 31 to find a suitable relative or sponsor to take custody of a teenage immigrant -- removing her from federal custody and allowing her access to an abortion she has been fighting for three weeks to get.

The delay means the teen, identified only as Jane Doe or JD, will have to cancel a weekend appointment at a Texas abortion clinic and could further complicate her attempts to have an abortion, lawyers said.

The 2-1 ruling, issued Friday evening, dissolved a lower court order directing Trump administration officials to allow Doe to have an abortion.

If no sponsor is found by Oct. 31, the lower court could reissue its order. If so, however, Trump administration lawyers could appeal again, Friday's ruling said.

Earlier: The government's interest in promoting childbirth over abortion allows federal officials to avoid any actions that would allow a 17-year-old immigrant, in federal custody in Texas after crossing the Mexico border illegally, to have an abortion, Trump administration lawyers told a federal appeals court Friday.

"The government is refusing to facilitate an abortion, which it is permitted to do," Catherine Dorsey, a lawyer for the U.S. Department of Justice, told a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia.

But lawyers for the teen, identified only as Jane Doe or JD, argued that government officials are enforcing illegal "veto power" over the teen's decision to exercise her constitutional right to an abortion.

"They are supplanting their decision about what JD should do with her pregnancy, and that is not acting in her best interest," said Brigitte Amiri, a lawyer with the American Civil Liberties Union.

"Really, what we are talking about is a ban on abortion for JD, which the (Supreme) Court has said you cannot -- no matter how much of an interest the government has in potential life -- you cannot act on that interest to ban abortion for anyone," she said.

The appeals court judges promised to rule quickly on whether Doe can have an abortion while in government custody, acknowledging that at 15 weeks pregnant she had entered the second trimester, when complication risks rise, during a three-week legal battle over her requested abortion.

If allowed, the abortion would be paid for with private money, the ACLU has said.

Doe's case has drawn national attention, serving as a proxy battle over two hot-button issues -- the right to abortion and federal immigration policy. Acknowledging the added interest in the case, the appeals court for the first time allowed arguments to be streamed live on its website.

On Wednesday, a federal district judge ordered officials with the Office of Refugee Resettlement to let Doe leave her government-financed shelter to get an abortion Friday or Saturday. At the Trump administration's request, the appeals court halted that order on Thursday to allow time for oral arguments, although Doe was allowed to attend her Thursday pre-abortion counseling session, which under Texas law must take place at least 24 hours before the procedure.

Arguments were lively and wide-ranging, with the judges -- two appointed by Republican presidents and one by a Democrat -- asking numerous questions in a session that ended after 90 minutes, an hour longer than scheduled.

The Trump administration's lawyer argued that federal officials were not standing in Doe's way by failing to "facilitate" her access to abortion because she has two options for leaving federal custody -- she could voluntarily leave the country, or she could be placed with a sponsor, typically a relative, who is already in the United States.

"The government is not preventing, blocking or imposing any (impermissible) obstacle on Miss Doe's pursuit of an abortion here," Dorsey said.

Justice Brett Kavanaugh latched onto the sponsor option, noting that it would allow the court to avoid a sticky constitutional question and get Doe out of federal custody, giving her access to an abortion while saving government officials from having to approve the procedure.

Lawyers on both sides, however, could not answer whether a sponsor could be found quickly enough, although the Justice Department lawyer said that Doe identified two relatives -- one who declined to be a sponsor, while the other is a single man, raising concerns for her safety.

Justice Patricia Millett was concerned that Doe, and other unaccompanied minors in custody for violating immigration laws, had no way to appeal Office of Refugee Resettlement decisions to deny access to abortion.

Kavanaugh also raised questions about the two options available to Doe, noting that she has no control over who the government chooses for a sponsor, and that by voluntarily leaving the country, she would be waiving her right to challenge deportation in the future.

Amiri, the ACLU lawyer, jumped on the last point.

"The Supreme Court said you cannot penalize people for exercising their constitutional rights, and that would be what would happen if the government was allowed to use the excuse of voluntary deportation to avoid their constitutional obligations to JD," Amiri said.

Dorsey also noted that the teen's home country -- which has not been identified because it's part of the case's sealed records, along with the Texas city she is staying in -- does not allow abortion.

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