Illegal-immigrant minors in the U.S. have an unfettered constitutional right to obtain an abortion, a federal judge ruled Wednesday, ordering both the Trump administration and Texas officials to back off and allow a 17-year-old girl being held in a government-run shelter to be taken to a clinic.
District Judge Tanya S. Chutkan, who was appointed by President Obama, said during a hearing she was “astounded” that the administration was trying to hinder the girl, identified in court papers only as “J.D.”
“Despite the fact that she’s in this country illegally, she still has constitutional rights,” the judge said.
She said the shelter, run by a nonprofit group under a government contract, must either transport the girl itself or else let her guardian take her to a counseling session Thursday, as required by Texas law, and then take her to have the abortion Friday or Saturday.
“Plaintiff … will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled,” the judge wrote in her order.
The girl illegally entered the U.S. from Mexico without her parents as part of the surge of unaccompanied alien children (UAC) who have streamed into America in the last five years.
Under federal law she was processed by Homeland Security and quickly released to the Health and Human Services Department, which placed her in a shelter to await a sponsor.
HHS said the decision opened the floodgates to “any illegal children seeking taxpayer-supported, elective abortions.”
“Though the order overrides the policies and procedures of the Office of Refugee Resettlement designed to protect children and their babies who have illegally crossed the border, we will continue to provide them with excellent health care and protect their well-being in all our facilities,” HHS said. “We will consider our next steps to ensure our country does not become an open sanctuary for taxpayer-supported abortions by minors crossing the border illegally.”
As a UAC, the girl is subject to deportation but has a chance to make a case for protection here. Those cases can stretch for years, giving her a chance to put down roots and disappear into the shadows along with the estimated 11 million other illegal immigrants.
But discovering she was pregnant, the girl sought an abortion. With her parents still in Mexico, and being unwilling to communicate with them, she obtained a judge’s permission for the procedure, using a bypass of parental consent allowed under Texas law.
The shelter, however, was still hindering her, refusing to take her to a clinic or to let her be taken by someone else.
The American Civil Liberties Union sued to force the issue.
The Justice Department told Judge Chutkan on Wednesday that the government had no obligation to assist the girl, and said releasing her to go have the abortion was not a “willy-nilly” process.
Texas Attorney General Ken Paxton filed briefs in the case saying that allowing the girl to get an abortion would be turning Texas into “a sanctuary state for abortions.”
“An unlawfully-present alien with no substantial ties to this country has no constitutional right to abortion on demand,” he said in the filing, joined by other GOP-led states.
They warned that if abortion rights could be claimed by illegal immigrants, there was no limit to what other constitutional rights could be demanded.
Judge Chutkan warned the government against attempting to interfere any longer.
“Failure to comply with the terms of this Order may result in a finding of contempt,” Judge Chutkan warned.
The ACLU asked to certify a class-action lawsuit on the issue, saying there are others in J.D.’s position.
According to information the ACLU obtained from HHS, the government identified 450 pregnant unaccompanied minors in 2015, and 12 of those obtained abortions. The Office of Refugee Resettlement paid for six of those. In 2014, five out of 726 pregnant immigrant minors had abortions. Four of those were government-funded — suggesting they were cases such as rape or incest, which are the exceptions in law that allow for taxpayer funding.
Americans United for Life, a pro-life group, said by requiring the Texas shelter to facilitate the girl’s abortion, it meant taxpayer money was going to the procedure.
“Once again an activist judge has declared abortion ‘access’ more important than U.S. law and policy that prohibits federal funding and support of elective abortion,” said Catherine Glenn Foster, president of AUL.
The ACLU is also arguing a case in federal court in California saying HHS has contracted with religious nonprofits, such as Catholic Charities, who refuse to help illegal immigrant girls in their shelters obtain abortions.
That case is still developing.