Patricia Millett.

The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, ruled Tuesday to allow an undocumented teenager in government custody to get an abortion, reversing the court's ruling last week.

In a per curiam order, the court vacated Friday's 2-1 ruling that prevented 17-year-old Jane Doe from getting the abortion until at least Oct. 31, giving the government until then to find a sponsor for her.

Tuesday's 6-3 decision, made without oral argument, came roughly along party lines with Republican-appointed Judges Karen Henderson, Brett Kavanaugh and Thomas Griffith dissenting, and Judge Nina Pillard recused. In a concurrence, Judge Patricia Millett, who dissented from the Oct. 20 decision, said the ruling “rights a grave constitutional wrong by the government.”

“The court today correctly recognizes that J.D.'s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her,” Millett wrote.

It's unclear whether the government will appeal to the Supreme Court. In an email, Department of Justice spokeswoman Sarah Isgur Flores said DOJ is “reviewing the order” and declined to comment further.

Doe is currently in a government-funded shelter in Texas, in her 16th week of pregnancy. Though a state judge issued an order allowing her to proceed with the procedure, the federal government refused to allow Doe to leave the shelter for doctor's appointments. Both the shelter staff and Doe's court-appointed guardian were willing to transport her and handle logistics, but the Department of Health and Human Services declined to let her to leave the facility.

The government argued, both in the district court and the appeals court, that it should not be forced to “facilitate” an abortion. The government did not take a position on whether undocumented minors have a right to get an abortion, but said even if they did, it was not violating that right because Doe could either leave the country or secure a sponsor. With a sponsor, Doe would be allowed to leave the custody of the government and presumably get the procedure.

Sponsorship concerns

In her concurrence Tuesday, Millett wrote that neither option was viable and that the government “bulldozed over constitutional lines” by placing the burden on Doe to “extract” herself from government custody to get the procedure.

The panel's Oct. 20 ruling hinged on the sponsorship option. Should Doe be able to find the sponsor quickly, the entire case could be resolved easily, Kavanaugh said during oral argument. But in her concurrence Tuesday, Millett wrote that the government already failed to find a sponsor after seven weeks.

“Tacking on another eleven days to an already nearly seven-week sponsorship hunt—that is, enforcing an almost nine week delay before J.D. can even start again the process of trying to exercise her right—is the antithesis of expedition,” she wrote.

Millett also said the government's argument that it should not be forced to “facilitate” an abortion was without merit, because the government did not have to fund the abortion, transport Doe to the doctor or even complete any paperwork for the procedure.

“So on the record of this case, the government does not have to facilitate—make easier—J.D.'s termination of her pregnancy,” Millett wrote. “It just has to not interfere or make things harder.”

Dissenting opinions

Kavanaugh and Henderson, who both vehemently dissented from Tuesday's ruling, were the majority in the Oct. 20 decision. Henderson and Griffith joined in Kavanaugh's dissent saying the en banc majority “badly erred.”

Kavanaugh wrote that the court created “a new right” for undocumented minors in U.S. custody “to obtain immediate abortion on demand.”

He wrote the government would not be placing an “undue burden” on Doe by transferring her to a sponsor before she has an abortion, so long as the transfer happened quickly. Should the transfer not occur by the Oct. 31 deadline, Kavanaugh wrote, the government would likely be required under Supreme Court precedent to allow the abortion, as it must do with women in federal prisons and adults held by U.S. immigration authorities who have no other options to obtain one.

By allowing Doe to have the abortion before that date, Kavanaugh wrote, the majority deviated from Supreme Court precedent allowing the government to impose regulations on abortion “so long as they do not unduly burden the right to abortion.”

“This is a novel and highly fraught case,” Kavanaugh wrote. “The case came to us in an emergency posture. The panel reached a careful decision in a day's time that, in my view, was correct as a legal matter and sound as a prudential matter. I regret the en banc Court's decision and many aspects of how the en banc Court has handled this case.”

In her separate dissent, Henderson said the government “wrongheadedly” failed to take a position on whether undocumented minors have a constitutional right to an abortion.

“I say wrongheadedly because at least to me the answer is plainly—and easily—no,” Henderson wrote. “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”

Patricia Millett.

The U.S. Court of Appeals for the D.C. Circuit, sitting en banc, ruled Tuesday to allow an undocumented teenager in government custody to get an abortion, reversing the court's ruling last week.

In a per curiam order, the court vacated Friday's 2-1 ruling that prevented 17-year-old Jane Doe from getting the abortion until at least Oct. 31, giving the government until then to find a sponsor for her.

Tuesday's 6-3 decision, made without oral argument, came roughly along party lines with Republican-appointed Judges Karen Henderson, Brett Kavanaugh and Thomas Griffith dissenting, and Judge Nina Pillard recused. In a concurrence, Judge Patricia Millett, who dissented from the Oct. 20 decision, said the ruling “rights a grave constitutional wrong by the government.”

“The court today correctly recognizes that J.D.'s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her,” Millett wrote.

It's unclear whether the government will appeal to the Supreme Court. In an email, Department of Justice spokeswoman Sarah Isgur Flores said DOJ is “reviewing the order” and declined to comment further.

Doe is currently in a government-funded shelter in Texas, in her 16th week of pregnancy. Though a state judge issued an order allowing her to proceed with the procedure, the federal government refused to allow Doe to leave the shelter for doctor's appointments. Both the shelter staff and Doe's court-appointed guardian were willing to transport her and handle logistics, but the Department of Health and Human Services declined to let her to leave the facility.

The government argued, both in the district court and the appeals court, that it should not be forced to “facilitate” an abortion. The government did not take a position on whether undocumented minors have a right to get an abortion, but said even if they did, it was not violating that right because Doe could either leave the country or secure a sponsor. With a sponsor, Doe would be allowed to leave the custody of the government and presumably get the procedure.

Sponsorship concerns

In her concurrence Tuesday, Millett wrote that neither option was viable and that the government “bulldozed over constitutional lines” by placing the burden on Doe to “extract” herself from government custody to get the procedure.

The panel's Oct. 20 ruling hinged on the sponsorship option. Should Doe be able to find the sponsor quickly, the entire case could be resolved easily, Kavanaugh said during oral argument. But in her concurrence Tuesday, Millett wrote that the government already failed to find a sponsor after seven weeks.

“Tacking on another eleven days to an already nearly seven-week sponsorship hunt—that is, enforcing an almost nine week delay before J.D. can even start again the process of trying to exercise her right—is the antithesis of expedition,” she wrote.

Millett also said the government's argument that it should not be forced to “facilitate” an abortion was without merit, because the government did not have to fund the abortion, transport Doe to the doctor or even complete any paperwork for the procedure.

“So on the record of this case, the government does not have to facilitate—make easier—J.D.'s termination of her pregnancy,” Millett wrote. “It just has to not interfere or make things harder.”

Dissenting opinions

Kavanaugh and Henderson, who both vehemently dissented from Tuesday's ruling, were the majority in the Oct. 20 decision. Henderson and Griffith joined in Kavanaugh's dissent saying the en banc majority “badly erred.”

Kavanaugh wrote that the court created “a new right” for undocumented minors in U.S. custody “to obtain immediate abortion on demand.”

He wrote the government would not be placing an “undue burden” on Doe by transferring her to a sponsor before she has an abortion, so long as the transfer happened quickly. Should the transfer not occur by the Oct. 31 deadline, Kavanaugh wrote, the government would likely be required under Supreme Court precedent to allow the abortion, as it must do with women in federal prisons and adults held by U.S. immigration authorities who have no other options to obtain one.

By allowing Doe to have the abortion before that date, Kavanaugh wrote, the majority deviated from Supreme Court precedent allowing the government to impose regulations on abortion “so long as they do not unduly burden the right to abortion.”

“This is a novel and highly fraught case,” Kavanaugh wrote. “The case came to us in an emergency posture. The panel reached a careful decision in a day's time that, in my view, was correct as a legal matter and sound as a prudential matter. I regret the en banc Court's decision and many aspects of how the en banc Court has handled this case.”

In her separate dissent, Henderson said the government “wrongheadedly” failed to take a position on whether undocumented minors have a constitutional right to an abortion.

“I say wrongheadedly because at least to me the answer is plainly—and easily—no,” Henderson wrote. “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.”