On Friday, a panel of the D.C. Circuit’s U.S. Court of Appeals entered an order preventing a 17-year-old undocumented woman in federal detention from exercising her constitutional right to choose. This happened despite the fact that she had already sought and received an order from a Texas state court judge confirming that she was mature enough to make this decision on her own, and that all she needed was the same freedom to visit her doctor for the purposes of terminating her pregnancy, which the Trump/Sessions Department of Justice (DOJ) would readily grant if she were continuing her pregnancy.
Over the weekend, the ACLU filed an emergency petition calling for for the entire D.C. Circuit to review this case, and it makes the same strong arguments as Judge Patricia Ann Millett’s dissent on Friday: time is of the essence, given that Jane Doe is 15 ½ weeks pregnant, her constitutional rights are clear,
there is no reason to believe that the Department of Health and Human Services will approve a “sponsor” for Doe in the next week, given how intensive and burdensome that process is.
In response, the DOJ has filed a brief this morning so patently false that it would be worthy of laughter if a young woman’s rights weren’t at stake. They argue that Doe could resolve this predicament herself by “filing for voluntary depature”—i.e., self-deporting—except, as they conceded in Friday’s oral argument, her home country actually bans abortion. They then claim that they don’t want to “facilitate” her abortion, though it carries the same paperwork and health monitoring burdens for them as it would if J.D. were visiting a doctor for prenatal care instead. And they finally suggest that another eight days for finding a sponsor (the panel’s deadline) will prove no burden to the young woman’s health, even though medical studies make clear that sooner is better, and the Trump/Sessions DOJ obviously disregards the profound dignitary harms of continuing to force her to carry a child against her will. As the ACLU argued in its emergency brief:
J.D. is not seeking any assistance from Defendants to obtain the abortion: Her court-appointed representatives or the shelter personnel stand ready to transport her; the health center stands ready to provide the care; and private funds have been provided to pay for the procedure. All Defendants must do is to step aside and stop blocking the door.
The D.C. Circuit is expected to act quickly. At present, it has seven Democratic-nominated judges and three Republicans, with one vacant seat.