The Trump administration asked the Supreme Court Monday evening to temporarily block an emergency order that they facilitate the abortion for an unaccompanied minor, referred to as Jane Roe. Federal Judge Tanya Chutkan decided Monday afternoon that the government must immediately facilitate the procedure.
Solicitor General Noel Francisco writes that the case “concerns the question whether the government must facilitate an abortion procedure that is not necessary to preserve the life or health of an unaccompanied minor who unlawfully entered the country and thus is in the government’s custody.”
“The answer to that question is no,” he says. “Under this Court’s case law, the government may make decisions favoring life over abortion; it is not obligated to facilitate Ms. Roe’s procedure; and the government acts permissibly if it does not place an undue burden in her path.”
The government is not attempting to delay the abortion of a second girl, Jane Poe, who was involved in the American Civil Liberties Union’s (ACLU) lawsuit and was 22 weeks pregnant. They simply state that due to “differing circumstances” they are not seeking a stay in her case.
Poe had changed her mind about getting an abortion just two weeks prior to the lawsuit and is also rapidly approaching the 24 week mark when most states outlaw the procedure so it is unclear what has happened in her case.
Judge Chutkan, an Obama appointee, reportedly granted a request from that Poe’s lawyers to allow her to receive her abortion immediately on Tuesday morning.
In Roe’s case, Francisco pointed out that she “is only about 10 weeks pregnant” and that efforts to find her a sponsor who could remove her from federal custody, so the government doesn’t have to facilitate the abortion, could be completed within two weeks.
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“A stay here would preserve the status quo pending further adjudication,” he said, “and would ensure that this Court need not choose ‘between justice on the fly’ and ‘participation in what may be an idle ceremony.’”
The D.C. appeals court allowed Jane Doe, another unaccompanied minor, to obtain an abortion in October. The government attorneys are alleging that the ACLU misled them as to the timing of Doe’s abortion and have petitioned the Supreme Court to vacate the decision and reprimand the ACLU attorneys.
“We are deeply disappointed in the decision to grant a temporary restraining order that will compel HHS to facilitate abortions for minors when they are not medically necessary,” a spokesperson for the Department of Health and Human Services (HHS), said Monday of Chutkan’s decision. “A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor. HHS-funded facilities that provide temporary shelter and care for unaccompanied alien minors should not become way stations for these children to get taxpayer-facilitated abortions.”
Brigitte Amiri, an ACLU lawyer representing the girls, said the judge’s decision “is a reminder that both the law and justice are on our side. We’ve already seen the courts rule in favor of Jane Doe, and today justice prevailed for two more young women like her.”
“Unfortunately, the Trump administration has shown no indication that they’ll abandon their cruel and dystopian crusade to block abortion access for some of the most marginalized people in our country,” she added. “We’re prepared to keep fighting for as long as we need to.”