In a case that brings together two of the most volatile issues in American society, immigration and abortion, the Justice Department argued this past week before a federal appeals court that the government “has a strong, legitimate and profound interest in the life of the child in the womb.”
But a lawyer for the young immigrants said that federal efforts to restrict their access to abortion were “blatantly unconstitutional,” and that Congress had never given the administration “statutory authority to veto a minor’s abortion decision.”
The United States Court of Appeals for the District of Columbia Circuit is hearing the case after a district court judge ruled in March that the Trump administration policy was probably illegal because it violated Supreme Court precedents on abortion and nullified a young woman’s “right to make her own reproductive choices.” The judge, Tanya S. Chutkan, issued a preliminary injunction that prohibits the government from obstructing or interfering with a pregnant minor’s access to abortion services or counseling.
The issue first attracted wide attention in October 2017 when an undocumented teenager in Texas known as Jane Doe obtained an abortion over the government’s objection, after the appeals court in Washington allowed it. Judge Brett M. Kavanaugh, President Trump’s nominee for the Supreme Court, participated in that case and dissented from the ruling. He said it would create “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
In arguing before the appeals court this past week that young undocumented immigrants had no such right, a lawyer for the Justice Department, August E. Flentje, said that any of them who wanted an abortion had the option of returning to their home countries — an assertion that drew skepticism from a panel of judges.
Judge Sri Srinivasan, who presided over the argument in the appeals court, said that abortion was not readily available in some of the countries to which immigrants might return. The government, he said, was telling young women who wanted an abortion that they could “leave and go somewhere where that right is not in existence.”
Brigitte Amiri, a lawyer for the young immigrants, said the administration — specifically, the Office of Refugee Resettlement in the Department of Health and Human Services — had imposed “a blanket ban on abortion for any minor in government custody.”
The Office of Refugee Resettlement is headed by Scott Lloyd, a staunch opponent of abortion who has personally tried to dissuade some young immigrants from having the procedure. The refugee office, he said, is supposed to be “a place of refuge” and must not participate in “the destruction of an unborn child’s life.”
Mr. Lloyd’s decision-making process, Ms. Amiri said, was “based almost entirely on his ideological opposition to abortion.” The government, she said, has “stopped at nothing to prevent unaccompanied minors from accessing abortion.”
Ms. Amiri, a lawyer with the American Civil Liberties Union, said that at least 12 immigrant minors in federal custody had requested access to abortion or information about it since Judge Chutkan issued her ruling in March.
“If a minor says that she is uncertain about her pregnancy decision and is interested in discussing abortion,” Ms. Amiri said, “the government then springs into action and tries to coerce her to carry her pregnancy to term.”
Judge Chutkan allowed the case to proceed as a class action, on behalf of “all pregnant, unaccompanied immigrant minor children who are or will be” in federal custody.
While the appeals court judges questioned whether the government had the power to deny access to abortions, they also expressed concern about the size of the class certified by Judge Chutkan. The class includes many pregnant young immigrants who have not expressed an interest in or desire for abortions.
“Some class members may be personally opposed to abortion” and “suffer no injury” as a result of the government’s policy, Mr. Flentje said.
The government said that 420 pregnant young immigrants were in federal custody at some time last year. Eighteen requested abortions. Of that group, 11 obtained abortions, five withdrew their requests and two were released to sponsors, typically family members, federal officials told the court.
In 1992, the Supreme Court said that officials could not impose “an undue burden” on a woman’s constitutional right to decide to have an abortion. Mr. Flentje said that in the case of the young migrants, “there is never a burden imposed by the government — the burden is created by the minor crossing illegally into the country.”
Moreover, he said, Judge Chutkan’s order was improper because it required the government, in effect, to facilitate access to abortion.
In various cases, Mr. Flentje said, the Supreme Court has held that “the government does not have to commit any resources to facilitate abortion.” But under Judge Chutkan’s order, he said, the government would have to help arrange transportation for a minor and take other steps that would amount to facilitating an abortion, even though the government would not pay for the procedure.
Before being required to allow an abortion, Mr. Flentje said, the government should be given time to try to find a sponsor who could consider the best interests of an immigrant teenager. The government can often find a sponsor in a few weeks, he said, but the time depends on the facts of each case, such as a woman’s age and maturity and the stage of her pregnancy.
The Trump administration said the district court order would promote “abortion tourism,” encouraging citizens of other countries to enter the United States illegally and demand abortions here.
But a coalition of 18 states, led by Attorney General Barbara D. Underwood of New York, told the appeals court: “There is no evidence whatsoever that any unaccompanied minor has entered the country to access abortion services. Many girls do not learn that they are pregnant until they are apprehended and submit to a medical examination in the United States.”
The appeals court panel hearing the case consists of Judges Srinivasan and Robert L. Wilkins, both appointed by President Barack Obama, and Judge Laurence H. Silberman, who was appointed by President Ronald Reagan.
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