WASHINGTON -- All the Trump administration/"Handmaid's Tale" comparisons seemed overwrought. Then came J.D.
She is a 17-year-old detained by federal authorities after illegally crossing the border in Texas without her parents, who she claims abused her. She is also pregnant -- 15 weeks and counting -- and wants an abortion. In fact, she's been seeking one for nearly a month.
J.D. isn't asking the federal government to pay for an abortion; she just wants the government not to stand in her way.
Instead, federal officials required J.D. to undergo counseling at a religiously affiliated, anti-abortion center. Although J.D. said that when her older sister became pregnant in her home country her parents beat her so badly she miscarried, U.S. authorities contacted J.D.'s mother to inform her of the pregnancy. They also threatened to revoke federal funding for the shelter where J.D. is living if it let her leave to obtain an abortion.
In effect, J.D. is being held hostage by anti-abortion zealots running the Office of Refugee Resettlement, a part of the Department of Health and Human Services that oversees unaccompanied minors. The director of the office, Scott Lloyd, came to the job with scant experience in refugee issues but a long track record opposing abortion rights.
An HHS spokesman compared Lloyd's role of counseling pregnant minors in his custody to that of a "foster parent," adding: "He is going to make choices that he thinks are best for both the mother and the child." But J.D., with the help of a group called Jane's Due Process, has already convinced a Texas judge -- Texas! -- that she is mature enough to make the choice herself.
The government insists J.D. has options that turn out to be no option at all. If J.D. wants an abortion, they say, she is free to leave to return to her home country. Except, as a government lawyer acknowledged last week to a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, J.D.'s home country -- its identity is under seal -- does not permit abortion.
Alternatively, the government says, J.D. could be released to the custody of a sponsor in this country. Except a sponsor has not been found, and the process of finding someone suitable could take weeks or months, by which point J.D.'s effort to secure an abortion would be moot. Indeed, every day that goes by makes the abortion more complicated, especially because Texas requires that J.D. obtain counseling and then wait 24 hours before proceeding.
People of goodwill are entitled to believe that abortion is the taking of a human life, and work to prevent it. But government officials of goodwill must recognize that the Supreme Court has decided and reaffirmed that the Constitution protects a woman's right to make that decision for herself. They don't have to pay for abortions, and they can institute policies that encourage women to choose childbirth over abortion. They just can't stop them from exercising their constitutional rights.
Even if the women are not here legally. In a friend-of-the-court brief, Texas and seven other states made the audacious assertion that "the Constitution does not confer on Jane Doe the right to an abortion." But the federal government does not go that far, and for good reason; it has long been clear that the "persons" protected under the due process clause include anyone present in the United States, lawfully or not.
If due process protections did not apply to undocumented immigrants, as D.C. Circuit Judge Patricia Millett pointed out, "they could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term."
The government's argument boils down to asserting that it should not be required to "facilitate" an abortion. But as Millett noted, "there is nothing for it to facilitate" besides simply letting the procedure take place.
Millett's two colleagues on the panel sided against her, giving the government until the end of the month to find a sponsor for J.D. This is wishful thinking taking precedence over constitutional law. The ACLU has asked the full appeals court to intervene.
Donald Trump's America is not Margaret Atwood's Republic of Gilead. But it is nonetheless chilling how far this administration is prepared to go to compel J.D. to continue her pregnancy against her will.
En banc petition and appeals court opinion: https://assets.documentcloud.org/documents/4114413/10-22-17-en-Banc-Petition-Garza.pdf
Amicus brief: https://www.texasattorneygeneral.gov/files/epress/JD_stay_pending_appeal.pdf?cachebuster:16
Government brief -- facilitate
Ruth Marcus' email address is email@example.com.
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