Update, Oct. 20, 2017, at 6:36 pm: The D.C. Circuit has issued a compromise ruling giving the government until Oct. 31 to find a sponsor for Jane Doe who will let her obtain an abortion. If no sponsor is found, Doe may attempt to terminate her pregnancy—but the government may once again try to stop her.
At this moment, the Trump administration is exerting direct control over the reproductive capacities of a 17-year-old girl in Texas, holding her in federal custody and refusing to let her obtain an abortion. A state judge has granted her the right to terminate her pregnancy; the administration does not care. Her attorneys would gladly transport her to and from the procedure; the administration will not let them. She has sued in federal court to vindicate her constitutional right to abortion access.
These are the facts of Garza v. Hargan, a chilling case that illustrates the lengths to which this administration will go to block abortion access. On Friday morning, a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit heard arguments to decide whether the federal government can prevent the girl in question from terminating her pregnancy. After the hearing, it remains unclear whether the court will allow her to obtain the procedure. What is quite evident, however, is that the Department of Justice does not accept the legitimacy of abortion rights or the personhood of undocumented immigrants under the U.S. Constitution.
Garza revolves around Jane Doe (as she is described in court filings), an undocumented minor who came to the United States in September without her parents. The government placed Doe in a federally funded shelter, where she learned that she was pregnant. She requested an abortion, but the shelter refused, following guidance issued by the Office of Refugee Resettlement—a wing of the Department of Health and Human Services that oversees shelters for undocumented, unaccompanied minors like Doe. In March, ORR announced that these shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director.
Lloyd, a Trump appointee and anti-abortion activist, refuses to provide such approval. Instead, he directs shelters to take pregnant minors to “crisis pregnancy centers” to be “counseled” out of their decision. At least once, he has also personally called a minor to urge her not to terminate her pregnancy. Doe’s shelter took her to a crisis pregnancy center, but it did not change her mind. A staff member at the shelter then called Doe’s mother and informed her that her daughter was pregnant. Still, Doe wanted the abortion. She went before a state judge and obtained judicial bypass, as required by Texas law when a minor wants an abortion without parental consent. But the federal government declined to honor the judge’s decision. It ordered the shelter to prevent Doe from getting the abortion that, under Texas law, she is legally entitled to obtain.
Doe’s court-appointed attorney and guardian ad litem sued, along with the American Civil Liberties Union, alleging a violation of her constitutional rights. A district court judge ruled in her favor and ordered the government to let Doe attend a counseling session—as mandated by Texas law—then undergo the procedure. Doe did manage to go to her counseling session, but the Justice Department appealed the decision and got a stay from the D.C. Circuit before she could get the abortion. On Friday, the court heard arguments to determine whether Doe, who is now 15 weeks pregnant, will be allowed to terminate her pregnancy before time runs out. (Texas bans abortion after 20 weeks of pregnancy.)
Friday’s panel includes two conservative judges, Brett Kavanaugh and Karen L. Henderson, and one liberal, Patricia Millett. Justice Department attorney Catherine Dorsey argues first, and Kavanaugh—who has the amiably patronizing demeanor of an Ivy League fraternity president—lays out her arguments for her. First, he notes, the government insists that it cannot be compelled to “facilitate” an abortion. Second, it argues that it is not imposing an unconstitutional “undue burden” on Doe’s right to choose, because she can still get an abortion: She simply has to self-deport or find a sponsor in the U.S. who will let her obtain the procedure. Kavanaugh zeroes in on the sponsorship possibility.
“We’re being pushed to make a sweeping constitutional ruling in one direction or another,” he tells Dorsey. But if Doe is “released to a sponsor,” wouldn’t that “resolve this case” in a way that would be “satisfactory to everyone?”
“Yes!” Dorsey responds. But Millett throws cold water on the idea.
“We’re at the point that days matter,” she points out. Acquiring a sanctioned sponsor can take months, time Doe does not have.
Henderson, who calls into the hearing remotely, then asks whether the government has a position on whether Jane Doe has any constitutional rights. It’s an excellent question, since, in district court, a DOJ attorney strongly implied that undocumented immigrants have no abortion rights, and perhaps no constitutional rights at all.
“We have not taken a position on that,” Dorsey hedges. Henderson sounds incredulous.
“How have you not?” she asks. Dorsey responds by noting that Garza presents “a different question” about “government refusal to facilitate abortion.” Kavanaugh points out that the government must allow pregnant women in federal prison to get abortions. The government has also allowed women held by Immigration and Customs Enforcement, who are frequently suspected of criminal behavior, to terminate their pregnancies.
“So if [Doe] committed a crime,” he says, “she’d be able to get an abortion.”
“The government can still make a decision not to facilitate” in Doe’s case, Dorsey replies. Plus, she reiterates that it’s not an “undue burden” because she can return to her home country.
What country is that? Kavanaugh wonders. That information is sealed, Dorsey says, although she concedes that it is “a country that does not allow abortion.” Dorsey seems unperturbed by the fact that she has just immolated the argument she made five seconds previously.
Millett asks why the government believes Doe’s judicial bypass shouldn’t allow her to get an abortion.
“That’s a state requirement,” Dorsey says. “HHS has its own interest in securing her best interest.”
“So you’re overriding Texas’ decision,” Millett replies.
Kavanaugh asks whether Texas could ban abortions for all undocumented women “on the theory that she can return to her home country.” Dorsey fidgets.
“We haven’t taken a position on whether she has constitutional rights here,” she reiterates.
“You are waiving any argument to the contrary,” Millett adds, sternly.
Then Henderson makes an unprompted declaration: “The district court judge made an appalling comparison between elective abortion and a tonsillectomy!” The judge’s thinly veiled expression of personal disgust for the procedure does not bode well for Doe.
Millett returns to the question of facilitation.
“Tell me what it is,” she asks, that “the government has to do to facilitate abortion” in this case?
The government must approve the procedure and “arrange transfer of custody,” Dorsey says.
But that’s not right, Millett notes—the shelter, a contractor, would arrange this transfer. “HHS has to do nothing,” except allow all this to happen.
Not true, Dorsey counters: HHS must still “authorize” the shelter to let Doe get the abortion—and then it must “take care of her health” following the procedure.
“So,” an irritated Millett says, “she’s already had judicial bypass. She has a guardian ad litem. The ‘facilitation’ would be ORR saying, ‘We’re going to let you exercise your choice.’ ”
Correct, Dorsey responds—and this “written authorization” would make the government complicit in her abortion.
Brigitte Amiri, an ACLU attorney, then steps up to argue on Doe’s behalf. Kavanaugh immediately demands that she explain why “the sponsor option [would not] resolve this case.”
“The process takes a significant amount of time”—months, maybe. Kavanaugh wants “some fact-finding on that question,” but Amiri pushes back: not when “the constitutional violation here is so clear.” Kavanaugh asks whether the process could be expedited “with a little nudge from the court.” At this point, it’s clear that he wants to wriggle out of this case by finding Doe a sponsor in record time. He analogizes the sponsorship solution to parental consent requirements, which the Supreme Court has upheld so long as they contain a judicial bypass alternative.
“She has a bypass,” Amiri responds, “and a guardian ad litem and an attorney … two adults working with her and acting in her best interest.” After all, “carrying a pregnancy to term is 14 times more dangerous than abortion.”
“What’s your response to the suggestion that [the government doesn’t] have to be complicit in abortion?” Kavanaugh asks.
“They can just let her leave!” Amiri says, barely containing her frustration. “Either [Doe] is confined like a prisoner or she’s not and should be allowed to leave. She has already been forced to remain pregnant for three weeks because the government blocked her abortion.”
Dorsey returns to the lectern for rebuttal and reiterates her key point: The government “is not putting an obstacle in her path,” merely “declining to facilitate an abortion.” If Doe wants the abortion, she should just go back home … to a country where abortion is illegal.
The government’s argument, as voiced by Dorsey on Friday, is a radical one. It evinces disdain for abortion rights and outright skepticism toward the constitutional rights of undocumented immigrants. The DOJ’s theory, which would eradicate the right to choose, is a flagrant distortion of the Supreme Court’s abortion jurisprudence. If the government can compel a woman to leave the country to get an abortion, then it can outlaw abortion within the United States altogether. Garza demonstrates this fact in stark terms: The Trump administration is forcing Doe either to birth a child she does not want or self-deport. To claim that the Constitution allows the imposition of this dilemma is to eradicate abortion rights altogether.
It’s difficult to predict how Friday’s panel will vote. Millett will surely favor Doe, but Kavanaugh and Henderson appeared to be on the fence. Henderson’s offhand comment revealing her aversion to abortion suggests she is leaning toward the government; Kavanaugh’s effort to nail down the fanciful sponsorship solution indicates a desperate desire for a compromise. While the possibility of a 2–1 vote against Doe is disturbing, the entire Garza affair has been darkly enlightening. In the past few weeks, we have learned that this administration does not believe undocumented minors have a genuine right to terminate an unwanted pregnancy. In fact, it isn’t even sure that undocumented immigrants count as people in the first place.