A federal judge has ordered the U.S. government to allow an undocumented teenager, who is in detention in south Texas, to have an abortion.
Jane Doe, her name in court to protect her privacy, has been detained in a refugee shelter in Brownsville, Texas, since Sept. 11, when she was apprehended at the U.S.-Mexico border.
While Doe, 17, obtained required permission from a state judge to carry out the abortion, the Health and Human Services Department (HHS) has refused to grant her permission to leave the shelter for the medical procedure.
HHS has jurisdiction over Doe’s welfare through its Administration for Children and Families.
“There is no constitutional right for a pregnant minor to illegally cross the U.S. border and get an elective abortion while in federal custody,” HHS said in an earlier statement.
“The government cannot ban abortion for anyone,” American Civil Liberties Union lawyer Brigitte Amiri countered in a Washington, D.C., courtroom on Wednesday, citing Roe v. Wade, which makes it illegal to prevent an abortion before the third trimester. “If she is unable to have an abortion soon, she will have to travel hundreds of miles to San Antonio. Or, she will be forced to carry to term against her will.”
“Each week of delay will increase risks of the medical procedure,” Amiri added. And time is running out. Doe is 15 weeks pregnant. Under Texas state law, it is illegal to obtain an abortion after 20 weeks of pregnancy.
Government attorney Scott Stewart said allowing Doe to travel for the abortion imposes a burden on the government, which is not obligated to pay or otherwise assist with the health care of undocumented immigrants.
Judge Tanya Chutkan pointed out that Doe was not asking the government to transport her or pay for her abortion, but only to allow her to leave the detention center so she could go to the medical facility where the abortion would be performed.
Chutkan asked; “Is it your position that her coming here unlawfully extinguishes her of constitutional rights?”
Stewart argued that leaving the refugee shelter was not “a willy-nilly process,” but Chutkan pointed out that Doe had obtained judicial authorization to obtain the abortion, which entitled her to medical treatment.
“Aren’t residents of this shelter allowed to leave for medical procedures?” Chutkan said. “Why is this any different?”
Stewart maintained allowing Doe to leave the shelter was facilitative action, and thus a burden on the government.