Age of undocumented immigrant alters government's case against abortion

PHOTO: Activists with Planned Parenthood demonstrate in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion, outside of the Department of Health and Human Services, Oct. 20, 2017.PlayJ. Scott Applewhite/AP
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The Trump administration's abortion court battles continued this week when the Department of Health and Human Services (HHS) argued to block two undocumented teens from terminating their pregnancies while in HHS custody.

But both women will likely be allowed to receive the procedure, as new information came to light Tuesday about one of the teens.

The government on Tuesday filed an updated court document stating that it had discovered that one teen, known as Jane Roe, is in fact 19-years-old -- therefore not a minor -- and would soon be transferred to Department of Homeland Security (DHS) custody.

DHS, which cares for undocumented adults in administrative custody, does not have the same guidance as HHS, which is responsible for minors, when it comes to abortions.

The administration appealed directly to the U.S. Supreme Court, as well as the appeals court on Monday evening in the case of only Roe, saying that its approach "approach reflects the facts and circumstances specific to each case."

DOJ spokesperson said in a statement that "given the privacy concerns involved, as well as the terms of the temporary restraining order, we cannot discuss further details," in response to why the department had not pursued appeals regarding both teens.

This cleared the way for the other teen, known as Jane Poe, to proceed with her abortion. Now that it is known that Roe is 19 years old, the arguments against allowing her to have abortion will be moot.

On Monday, a federal district court judge in Washington, D.C. ruled in favor of the suspected minors, who entered the U.S. illegally, paving the way for both of them to obtain abortions.

Roe and Poe were detained at the border and placed in HHS-managed shelters -- the procedure for unaccompanied minors who are apprehended at the border. Roe is approximately 10 weeks pregnant and Poe is approximately 22 weeks pregnant. Both decided to terminate their pregnancies while in HHS custody, according to court documents.

The district judge ordered the government to transport or allow transport for the teens to an abortion provider and related medical care "promptly and without delay," finding that if they were not allowed to leave, they "will both suffer irreparable injury” and "perhaps the permanent inability to obtain a desired abortion to which they are legally entitled."

“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,” said Brigitte Amiri, senior staff attorney with the American Civil Liberties Union (ACLU) Reproductive Freedom Project, in a statement.

Because there is no longer an "exigent situation" for Poe or Roe, the government requested additional time on Tuesday to file in court.

"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," said spokesperson for HHS’ Administration for Children and Families in a statement after the district court ruling.

A pregnant minor who has entered the country illegally has the option to voluntarily depart to her home country or identify a suitable sponsor, according to HHS.

“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,” added the spokesperson.

In March 2017, Office of Refugee Resettlement (ORR), which manages the unaccompanied minor program under HHS, announced that all federally funded shelters are prohibited from taking “any action that facilitates” abortion access for unaccompanied minors absent “direction and approval from the Director of the ORR,” according to court documents.

Earlier this year, the ACLU brought a similar case against the administration on behalf of another 17-year-old known as Jane Doe, who also arrived to the U.S. without legal paperwork or a guardian.

In October, a full panel of the U.S. Court of Appeals for the D.C. Circuit overturned a previous ruling by a three-judge panel, which delayed her ability to have the procedure.

Weeks earlier, Doe received a Texas state judicial order granting her permission to have an abortion without parental consent, which is required by state law. HHS said it would not “facilitate” the abortion and the case moved up to federal court.

Doe had an abortion the day after the appeals court ruling.