Scott Stewart, a U.S. deputy assistant attorney general, failed to convince the Obama-nominated judge that the teenager, who remains in government custody in Brownsville, Texas, should return to her home country if she doesn't want to carry the pregnancy to term, or otherwise find a USA sponsor.
Texas Attorney General Ken Paxton, filed an amicus curiae brief on the side of the federal government in the case along with 7 other attorneys general, arguing a ruling to allow the minor access to an abortion would create a unsafe precedent. He has also instructed ORR deputy director, Jonathan White, that another minor in custody in Arizona get an ultrasound and counseling at Choices Pregnancy Centers, a crisis pregnancy center, which comprise nearly all of the approved counseling centers listed by the ORR when minors are requesting abortion care.
The judge wrote that Jane Doe must be able to receive pre-procedure counseling required by Texas law on October 19, before having the procedure on either October 20 or 21. She added that the agency refused to transport the minor themselves.
In her order, Chutkan - who was nominated by President Barack Obama - also barred federal officials from discussing Doe's abortion decision in any context or retaliating against her for the decision. They also claimed they were not blocking her from getting an abortion because she could get one elsewhere if she agreed to leave the country.
"Just because she's here illegally doesn't mean she doesn't have constitutional rights", Chutkan, who said she was "astounded" by the government's position on the matter, said. "If "Doe" has a right to an abortion, it is hard to imagine what other constitutional protections she would not enjoy by extension".
"Doe" first filed a lawsuit in Texas state court, asking for an order compelling HHS to take her to get an abortion. "No one should be held hostage to the extreme anti-abortion views of a handful of government officials".
In the lawsuit, she claims that the Department of Health and Human Services, the Administration for Children and Families and the Office of Refugee Resettlement prevented Doe from going to a clinic to obtain an abortion, despite Doe having a judicial bypass. Texas, where the girl resides, allows abortions up until 20 weeks gestation. "The government may not want to facilitate abortion - but it can not block it".
"It's unprecedented, it's unconstitutional and it's also unconscionable", said the teen's lawyer and senior staff attorney with the ACLU Reproductive Freedom Project, Brigitte Amiri.
ORR did not immediately respond to a request for comment.
A lengthy Politico report indicated that the Trump administration has "intervened to prevent abortions sought by girls at federally funded shelters, even in cases of rape and incest and when the teen had a way to pay for the procedure". "Grantees should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling", he wrote in late March. He has also made the highly unusual move of visiting minors directly to discourage them from obtaining an abortion. All women in the United States - including prisoners and immigrants, documented or undocumented - have a constitutional right to abortion, says the U.S. Magistrate Laurel Beeler. "It is doing that here".
In a two-page decision, DC District Judge Tanya Chutkan ordered officials at the Department of Health and Human Services to allow the girl, identified only as Jane Doe, to be transported by a guardian or attorney "promptly and without delay" to an abortion provider to obtain state-mandated counseling and then to obtain the abortion.
Today's hearing could have fear-reaching implications for unaccompanied immigrant minors in ORR custody, and lawmakers are taking notice.