A  three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on Friday unanimously rejected the Trump administration's blanket policy of denying abortion access to unaccompanied minors who are in government custody.

The panel, in a 81-page unsigned opinion, upheld in main part a Washington federal trial judge's preliminary injunction against the policy. The government's position could not “be squared” with U.S. Supreme Court decisions, according to panel members judges Sri Srinivasan, Robert Wilkins and Laurence Silberman.

“To be sure, the 'right to an abortion' is viewed to have a 'controversial nature,' as to which people 'sincerely hold directly opposing views,'” the judges said in their ruling, quoting from Supreme Court decisions. “But the Supreme Court 'has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose.' And we are not free to dilute a constitutional right recognized by controlling Supreme Court precedent—a right the government affirmatively assumes unaccompanied minors here have—so that others will be dissuaded from seeking a better life in this country.”

The panel sent back to the district judge, Tanya Chutkan, another part of the injunction that barred disclosure to parents and others of unaccompanied minors' pregnancies and abortion decisions. “That portion of the preliminary injunction, we conclude, warrants further explication to aid appellate review,” the D.C. Circuit judges said.

Although unanimous in rejecting the government's position barring abortions for unaccompanied minors in U.S. custody, the panel divided 2-1 on certain procedural rulings that the district court had issued. Silberman, writing in his dissent, said he disagreed with the majority's ruling that Chutkan had properly certified the class of minors in the case and that the case was not moot.

Laurence Silberman Senior Judge Laurence Silberman, of the U.S. Court of Appeals for the District of Columbia Circuit. Credit: Diego M. Radzinschi/ ALM

“The crux of my dispute on this issue is that I believe that the class is much too broad; it should not include pregnant minors who do not wish an abortion, whether you refer to that as a violation of commonality, typicality, or adequacy,” Silberman wrote.

Silberman, reflecting on the merits of the case, embraced what he called a “persuasive prior opinion” written by then-Judge Brett Kavanaugh, while he was still on the D.C. Circuit.

In the D.C. Circuit, Kavanaugh lauded the government's “permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” (Kavanaugh, now a Supreme Court justice, would be recused in the event the dispute did reach the high court.)

“I am afraid the majority's refusal to consider narrowing the scope of the district court's order justifies Judge Kavanaugh's accusation that the court is endorsing abortion on demand—at least as far as the federal Government is concerned,” Silberman said Friday.

Wilkins and Srinivasan countered: “But after that [Kavanaugh] opinion, the government at no point asked the district court in the ensuing proceedings to consider crafting a remedy that would give the government some extra time period to find a sponsor upon learning of [an unaccompanied alien child's] interest in an abortion. Nor did the government suggest the contours of any such approach.”

Devising a narrower remedy, Wilkins and Srinivasan, “would have entailed 'making distinctions in a murky constitutional context . . . where line-drawing is inherently complex' and is laden with the kinds of policy judgments a court typically does not make on its own.”

In 2017, the Trump administration instituted a policy essentially barring any unaccompanied minor, under the age of 18, in its custody from obtaining a previability abortion.

The policy blocked abortion even if the minor met all requirements for one under state law, including a showing she is mature enough to make that decision, and even if she secured her own funding and transportation for the procedure. There is no exception if the pregnancy results from rape. Anyone age 18 or older in immigration custody is allowed to terminate her pregnancy.

Brigitte Amiri of the American Civil Liberties Union argued on behalf of the class. U.S. Justice Department special counsel August Flentje represented the government.

Arguing in the D.C. Circuit, Flentje denied the policy created an undue burden on immigrant minors. “The burden is created by the minor crossing illegally—not by the government,” Flentje told the panel. “When the person is able to choose to go back to her country of nationality, there is no undue burden imposed by the government.”

Amiri argued in support of Chutkan's rulings that established the injunction and approval of class certification.

“The government has operated a policy of banning abortion for all unaccompanied immigrant minors while in custody,” she told the appeals panel. “It is rare to see such a stark prohibition on abortion. This is a blanket ban on abortion for anyone while in custody, which is blatantly unconstitutional under Roe [v. Wade] and it progeny.”

The D.C. Circuit's ruling in J.D. v. Azar is posted below.

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