Patricia Millett Patricia Millett. Photo credit: Diego M. Radzinschi/ ALM

The weeks-long court fight over the Trump administration’s refusal to allow a detained immigrant teenager from seeking an abortion ended soon after a federal appeals panel ruled for her Tuesday. The court’s decision to allow the 17-year-old girl to travel to an abortion facility in Texas now could benefit a wider challenge that is unfolding in Washington’s federal trial court.

The American Civil Liberties Union on Oct. 18 sought class certification on behalf of female immigrants similarly situated to the “Jane Doe” teenager who prevailed in the U.S. Court of Appeals for the D.C. Circuit. The full court overturned a panel decision, issued late last week, that blocked the girl from immediately being able to leave federal custody to have an abortion.

The lawyers who brought the case, Garza v. Hargan, said they expected the D.C. Circuit decision will have wider implications for the benefit of the purported class of unaccompanied pregnant minors who are or will be in federal detention. They are challenging revised policy that they claim erected barriers to undocumented minors who want to have an abortion.

“We’ll try to get the government policy blocked for all immigrant minors,” said Brigitte Amiri, senior staff attorney at the ACLU’s Reproductive Freedom Project. The challengers said in court papers that government records suggest that every year “there are hundreds” of pregnant immigrant minors in federal custody.

But it’s an open question just how far-reaching the D.C. Circuit’s ruling will be either to the underlying purported class action or to immigration litigation at large.

D.C. Circuit Judge Brett Kavanaugh, who voted against allowing the girl immediate access to an abortion facility, teed up his doubts in a footnote this week that questioned any precedential value of the ruling. The majority on the court, he noted, said only that it “substantially” agreed with Judge Patricia Millett, who last week voted against the government’s effort to delay or otherwise deny the girl access to an abortion center.

Judge Brett Kavanaugh. Photo credit: Diego M. Radzinschi/ ALM

“The majority’s decision rules against the government ‘substantially for the reasons set forth in’ the panel dissent. Given this ambiguity, the precedential value of this order for future cases will be debated,” Kavanaugh wrote. “But for present purposes, we have no choice but to assume that the majority agrees with and adopts the main reasoning for the panel dissent.”

The D.C. Circuit’s unsigned order Tuesday rejected a divided panel ruling that would have delayed the teen’s abortion until Oct. 31 in order to give the government time to find a sponsor for her. A sponsor, according to the government, would have allowed the teen to leave detention and presumably assist her in having an abortion.

Writing in her dissent last week, Millett said the Supreme Court’s decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman’s Health v. Hellerstedt made clear that the government could not stand in the way of the teenage girl’s effort to have an abortion.

In her concurring opinion Tuesday, Millett skewered “big government” for interfering with the minor’s rights. “The government’s mere hope that an unaccompanied, abused child would make the problem go away for it by either (i) surrendering all of her legal rights and leaving the United States, or (ii) finding a sponsor the government itself could never find is not a remotely constitutionally sufficient reason for depriving J.D. of any control over this most intimate and life-altering decision,” she wrote.

Millett wrote: “Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby. The bedrock protections of the Fifth Amendment’s due process clause cannot be that shallow.”

The D.C. Circuit’s 6-3 decision is binding precedent in the D.C. Circuit. Other federal appellate courts may look to the order when facing similar issues, but the ruling does not dictate how other cases outside the D.C. Circuit should be resolved.

“I think those in the majority will treat it that way,” Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said. “The government may not give up, but I think the D.C. Circuit will adhere to this position unless the Supreme Court decides otherwise.”

Steven Aden, chief legal officer and general counsel to Americans United for Life, predicted the D.C. Circuit ruling will have “minimal” precedential value.

“I do believe this is an issue that needs to be settled by the Supreme Court and I hope it will be,” Aden said. “The question is whether public funds and public officials are required to facilitate the elective abortion of a person in their custody.”

The lawyers representing the class action, Aden said, now have a “basic read” on how a majority of the D.C. Circuit would rule on that issue. “But I think the issue will continue to come up in other courts and, in an appropriate case, we’ll find out if the Supreme Court is interested,” he said.

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