First Major Abortion Battle of Trump Era Could be Headed for Supreme Court
The case of a pregnant migrant teen held in Texas and blocked by the Trump administration from obtaining an abortion may be heading toward a point of no return.
When the legal drama began last month, she was about 11 weeks pregnant. She is now at about 16 weeks, and her lawyers say her options for an abortion in Texas are dwindling. At the same time, the chances of a showdown among federal judges is increasing.
The dispute, now at a Washington-based US appeals court and perhaps destined for the US Supreme Court, constitutes the first major abortion battle of the Trump administration.
It reinforces President Donald Trump’s recent moves to curtail reproductive rights and take up religiously tinged conservative causes. It also recalls decades-old disputes over whether a husband, parent or anyone else can essentially veto a woman’s choice to end an unwanted pregnancy.
In the 1973 milestone case of Roe v. Wade, the Supreme Court declared that women have a constitutional right to terminate a pregnancy. The justices have affirmed that right over the years, ruling that government may not unduly burden women seeking to exercise their rights. The cases have bitterly divided the nine justices and stirred passions across the country.
That fervor is building again in the case of Garza v. Hargan, involving a 17-year-old woman known in court papers as Jane Doe or J.D. and presenting the first clash in the Trump era between a woman’s personal liberty and government’s ability to determine when she has abortion.
J.D. fled her home country in Central America, saying she faced horrible family abuse. After she crossed the border into Texas, she landed in a government-funded shelter for children who have entered the country illegally. When she learned she was pregnant, a guardian was appointed. J.D. then obtained a state court hearing, during which a judge found that she was mature enough to decide whether she wanted to end her pregnancy. J.D. opted for an abortion.
The Department of Health and Human Services, overseeing the shelter, objected. HHS officials contended it would be in J.D.’s best interest to carry the pregnancy to term. It has blocked her from obtaining the abortion, saying it does not want to “facilitate” the procedure.
“The government may legitimately express a preference for childbirth over abortion, even if such a preference may have practical effects or limits on a woman’s exercise of her right to abortion,” Justice Department lawyers said in a filing on Monday.
They stressed that Doe arrived in the United States illegally and created her current dilemma. They make clear the administration’s aversion to abortion rights — a stance that could shape future cases — by stating that the government should not be forced to be “complicit in Ms. Doe’s abortion.”
DOJ lawyer Catherine Dorsey, who represented the government before the US Court of Appeals for the District of Columbia Circuit last week, said J.D. could simply go back to her home country. J.D.’s lawyers at the ACLU counter that she fears returning home and emphasize the fundamental constitutional right at stake.
ACLU lawyer Brigitte Amiri told the DC Circuit that time was slipping away, given that Texas prohibits most abortions after 20 weeks. She said it can be difficult for a woman to obtain an abortion there even earlier in the second trimester.
Amiri said J.D.’s guardian, shelter personnel and health clinic workers stand ready to help J.D. Private funds have been collected to pay for the procedure. “All (HHS) must do is step aside and stop blocking the door,” Amiri wrote in a filing.
A panel of the DC Circuit ruled by a two to one vote last Friday that J.D. may obtain an abortion but must first try to obtain a government-approved sponsor to take her into custody here in the US. The panel majority, Appeals Court Judges Brett Kavanaugh and Karen LeCraft Henderson, said if J.D. still has not found a sponsor by October 31, she may then return to courts to try to win the right to abortion on her own.
Judge Patricia Millett dissented. She said forcing J.D. to continue her pregnancy in the hope of finding a sponsor, which she failed to find over the past six weeks, “sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental purpose.”
Invoking Millett’s dissent, J.D.’s lawyers have asked the full DC Circuit to take up the case, reverse the panel, and allow J.D. to undergo an abortion as soon as possible.
Abortion cases often break along liberal-conservative lines, and the full DC Circuit may be more sympathetic to such arguments than the panel majority. Kavanaugh and Henderson are Republican appointees; Millett is a Democratic appointee. On the full court, there is a strong majority of Democratic judges.
In any event, the DC Circuit may not be the last word. The case could be appealed to the Supreme Court, where abortion decisions can come down to a single vote — typically Justice Anthony Kennedy’s — and predictions are risky.
What is clear, however, is the Trump administration position against the abortion rights of a teenager who came here illegally. As Judge Millett noted, the facts of this case are not all that rare and reverberations could be significant.
She wrote, “(U)nfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant.”