The Justice Department’s argument that an illegal immigrant is not entitled to an abortion could force the teenager to choose between staying in the U.S. or having the abortion.
The Justice Department filed a brief Monday urging the D.C. Court of Appeals not to provide a full “en banc” review of Garza v. Hagan because the decision last week from the federal appeals court’s three-judge panel failed to contradict Supreme Court precedent.
“There is no precedent that supports Ms. Doe’s assertion that by illegally entering the United States and choosing to remain in custody rather than return home, the government must facilitate her access to abortion in order to avoid placing an ‘undue burden,'” Justice Department lawyers wrote Monday. “And to the extent Ms. Doe argues that opting for voluntary departure is itself an ‘undue burden’ because it pressures her to give up pursuit of a possible avenue to staying in the United States legally, the argument lacks merit and the en banc court should not consider that claim given the incomplete record, as well as the fact that prior to this petition she has never asserted such a claim.”
A federal judge first ruled in favor of the pregnant teenager, who is represented by the American Civil Liberties Union and is listed in court documents as “Jane Doe,” but a three-judge panel at the D.C. Circuit Court of Appeals ruled the government did not need to immediately allow the girl to have an abortion. The D.C. Circuit’s panel opinion directed the government to find a sponsor to take custody of the girl, who is living in a government shelter in Texas, before the end of October.
The girl is 16 weeks pregnant, and Texas prevents most abortions after 20 weeks. The teen followed state law by obtaining permission from a state judge in Texas to have an abortion and said she would pay for the procedure or would do so with help from her court-appointed guardian.
The federal appeals court’s ruling could provide new guidance about protections afforded to illegal immigrants and which people the courts believe are entitled to access to abortions.
