US Supreme Court throws out undocumented minor abortion ruling
By Christine Rousselle / CNA
June 6, 2018
On Monday the Supreme Court vacated an appellate court’s decision from October which permitted an undocumented minor held in federal custody to an obtain an abortion.
This move by the court means there will no longer be a precedent should a similar case arise.
The June 4 order in Azar v. Garza was unanimous, though the initial case had been rendered moot as the minor had already had an abortion. The Supreme Court took up the case in January.
The minor in question, identified only as “Jane Doe,” obtained an abortion Oct. 25, 2017, after an appeals court ruled that the government had to provide her with one. Doe was from Central America, and was arrested after illegally crossing the U.S. border. She learned she was pregnant after she was in custody. Doe is now 18 years old and is no longer in federal custody. She was represented in court by the American Civil Liberties Union.
The Trump administration argued that it was not the role of the government to assist with an undocumented minor’s abortion. In an appeal filed last year, Solicitor General Noel Francisco wrote that the government is “not obligated to facilitate abortion,” and that “the government acts permissibly when it does not place an undue burden in a women’s path.”
While the ruling did not go as far as some pro-life activists would have preferred, they were still pleased with the decision.
Charlotte Lozier Institute President Chuck Donovan told CNA that although the court did not determine whether the federal government must assist undocumented minors with abortions, he felt it was a setback for those in favor of abortion rights.
“The Supreme Court’s ruling in this case doesn’t answer the fundamental question – does the federal government have an obligation to help an undocumented teen abort her unborn child – but it does deny the ACLU a major victory in their drive to promote abortion on demand,” he said.
“Solicitor General Noel Francisco and the Trump Administration deserve the greatest thanks for waging this fight and helping our nation honor the right to life of every human being, born and unborn, who reaches our shores,” Donovan stated.
Kerri Kupec, Justice Department spokeswoman, welcomed the court’s decision. “The Supreme Court has repeatedly made clear that the federal government is not required to facilitate abortions for minors and may choose policies favoring life over abortion. We look forward to continuing to press the government’s interest in the sanctity of life.”
The Supreme Court’s decision detailed the timeline of the case.
The appellate court ruled Oct. 24, 2017 that the government make Doe available to obtain the counseling required by Texas law and to obtain an abortion. Texas requires pre-abortion counseling with the same doctor who will perform the abortion to take place at least 24 hours in advance of the procedure.
Doe’s representatives scheduled an appointment for her, and arranged for her to be transported to the clinic Oct. 25 at 7:30 a.m.
The government planned to ask the Supreme Court for emergency review of the appellate court’s ruling, and said it would file a stay application early in the morning of Oct. 25, believing an abortion would not take place until Oct. 26.
“The details are disputed, but sometime over the course of the night both the time and nature of the appointment were changed,” wrote the Supreme Court.
A doctor who had performed counseling for Doe earlier was available to perform an abortion, and her 7:30 a.m. appointment was moved forward to 4:15 a.m.
The government was informed at 10 a.m. Oct. 25 that Doe had procured an abortion that morning.
The Supreme Court declined to discipline Doe’s lawyers, whom the Trump administration alleged had committed misconduct, making “what appear to be material misrepresentations and omissions … designed to thwart this Court’s review.”
“Not all communication breakdowns constitute misconduct,” the court wrote.