The Justice Department said Tuesday it will appeal after a federal court last week ordered the administration to facilitate abortions for pregnant illegal immigrant teens in government custody.
Government lawyers said the ruling by Judge Tanya Chutkan risks “incentivizing illegal immigration by compelling the federal government to facilitate an unaccompanied alien child’s request for an elective abortion.”
The Justice Department asked Judge Chutkan, an Obama appointee to the federal district court in D.C., to stay her own ruling while the appeal is pending.
The case is testing the limits of constitutional rights granted to illegal immigrants.
Judge Chutkan last week granted class-action status to pregnant illegal immigrant teens in government custody who came to the U.S. as Unaccompanied Alien Children (UAC), meaning they arrived without their parents.
Judge Chutkan said those girls have a right to abortion in the U.S., and said the Trump administration appeared to be interfering with that right. She ordered the government to facilitate abortions in cases where the girls request them.
But the Trump administration says the issue is more complicated than that. They argue that while the girls are in custody, the government has an interest in both their health and that of their fetus. They also argue that federal law restricts their ability to use taxpayer money to facilitate an abortion — a limit they said Judge Chutkan’s order forces them to breach.
“Holding that [the administration’s] policies violate the Fifth Amendment — and instead that the Constitution in every factual circumstance requires the government to facilitate an elective abortion for all unaccompanied minors that enter the United States — is incorrect,” Justice Department lawyers said in their stay request.
The Health and Human Services Department, which is in charge of UAC, says they have two other good options: They can accept deportation back home, or they can be placed with sponsors here in the U.S. In either case, they are free of U.S. government interference in their decisions, the Trump administration says.
Judge Chutkan rejected that, saying the sponsorship process can take so long that it violates the girls’ rights to a quick abortion, and saying she wouldn’t send the girls back to countries where abortions are illegal, because that too would violate their rights here in the U.S.
She had previously ordered abortions in several individual cases, but in a ruling issued late Friday she went further, declaring a class of all pregnant UAC in custody and ordering the government to assist anyone who requests to terminate her pregnancy.
She also ordered the government not to reveal the decision to abort to anyone.
The government says that’s not only difficult but counterproductive, since it would mean limiting disclosure to medical personnel who would have to treat the UAC after an abortion, and could end up hindering the ability to find an appropriate sponsor to place the girl with.
An early round of arguments had already made its way to to the U.S. Circuit Court of Appeals for the District of Columbia, which upheld Judge Chutkan’s initial ruling ordering abortions in specific cases.
The Trump administration has appealed that earlier decision to the Supreme Court, but the justices have yet to say whether they will hear the case.