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Trump administration goes to justices over abortion for undocumented teen (FURTHER UPDATED)

UPDATE at 5:29 p.m. on December 19: This afternoon the Department of Justice asked the D.C. Circuit for a six-hour extension (to 9 p.m. tonight) in which to file its response to the ACLU’s brief. The government explained that it had learned that Jane Roe is 19, rather than (as had previously been thought) 17. Because she is over 18, Roe will be transferred to the custody of the Department of Homeland Security, where she would be able to obtain an abortion. 

Two months ago, a 17-year-old pregnant teenager who had been caught trying to enter the United States won an order from the U.S. Court of Appeals for the District of Columbia Circuit clearing the way for her to have an abortion. She obtained the abortion the next day, before the Trump administration could go to the Supreme Court. The government is currently seeking sanctions against the teenager’s lawyers, alleging that they engaged in “what appear to be material misrepresentations and omissions to the government designed to thwart” Supreme Court review. Tonight the government demonstrated that it will not take any chances with similar cases going forward. Within hours of a ruling by a federal trial court that would allow another pregnant teenager in immigration custody to obtain an abortion, the government went to the Supreme Court, asking the justices to put the trial court’s order on hold while it appeals to the D.C. Circuit and, if necessary, the Supreme Court.

In its brief filed tonight at the Supreme Court, the federal government urged the justices to intervene in the case of “Jane Roe,” who is currently 10 weeks pregnant, because the trial court’s order “effectively grants Ms. Roe permanent relief”: Although the trial court put its order on hold for 24 hours to give the government time to appeal, Roe is likely to obtain an abortion tomorrow night if the court does not act. But if the court were to step in, the government contended, the justices could “consider on an expedited basis whether the government should be compelled to facilitate Ms. Roe’s ability to obtain an abortion,” while at the same time preserving the option for her to obtain an abortion later if she were to prevail.

All of the factors that the court should consider when determining whether to put the lower court’s order on hold point toward a ruling for the government, wrote U.S. solicitor general Noel Francisco. For example, the government is correct on the merits of the case: If the government allowed Roe to leave immigration custody so that she could get an abortion, that would be the same thing as facilitating an abortion, which it is not required to do. The law requires only that the government not impose an “undue burden” on Roe as she seeks an abortion. No such burden is present here, the government asserted, because Roe has other options for leaving immigration custody – she could voluntarily depart the United States or a sponsor could take responsibility for her. The government and the public interest will suffer “irreparable harm” if Roe’s abortion is allowed to go forward, the government argued; by contrast, putting the order on hold would give the government “a modest period of time to work with Ms. Roe to complete the process of vetting and obtaining a sponsor,” which could in turn “eliminate the need for this Court to address the constitutional question presented in a short timeframe.”

The justices can either block the lower court’s order temporarily or call for a response from Roe’s attorneys. No matter which approach they choose, they are likely to act quickly.

UPDATE at 10:15 p.m.: The D.C. Circuit has put the trial court’s order on hold for an additional 24 hours, until approximately 6 pm on December 20, and it has ordered attorneys for the teenager to respond tomorrow morning, with the government’s reply brief due by 3 pm tomorrow. That order could reduce the need for the Supreme Court to act immediately. 

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Trump administration goes to justices over abortion for undocumented teen (FURTHER UPDATED), SCOTUSblog (Dec. 19, 2017, 5:29 PM),