The Trump administration has backed away from a fight at the Roberts Court over a policy that effectively bars any unaccompanied pregnant minor in its custody from obtaining an abortion. The U.S. Department of Justice (DOJ) on Friday declined to file a petition to have the Court review an appeals court decision blocking the policy while a lawsuit challenging it proceeds.
Two years ago, the Trump administration set off a legal firestorm when it instituted a policy effectively barring any unaccompanied pregnant minor in its custody from obtaining an abortion. In March 2017, the Office of Refugee Resettlement (ORR), a division of the U.S. Department of Health and Human Services (HHS), announced that shelters contracting with the government “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR,” then anti-choice advocate Scott Lloyd. The Trump administration reportedly selected Lloyd to drive federal policy at the ORR that reproductive rights advocates described as “anti-choice fanaticism” that is “part Handmaid’s Tale, part Nazi doctor.” According to court documents, Lloyd denied every abortion request presented to him during his tenure as head of ORR, including instances where a pregnancy resulted from rape.
Shortly after the policy took effect, the American Civil Liberties Union (ACLU) filed an emergency federal lawsuit on behalf of Jane Doe, an undocumented minor in government custody whom the Trump administration was denying access to an abortion, despite a court order ruling Doe could have one. Doe’s fight made its way through the federal courts, and she ultimately had an abortion. But this didn’t happen without then-D.C. Circuit Judge Brett Kavanaugh, now a Supreme Court justice, siding with the Trump administration in a dissenting opinion. Kavanaugh wanted to let the clock run out on Doe’s ability to obtain an abortion, and described efforts by her attorneys to comply with the judicial bypass that granted her abortion as facilitating “immediate abortion on demand.”
The Trump administration was so angry about the fact that Doe ultimately got the abortion she needed that Solicitor General Noel Francisco took the unprecedented step and asked the Roberts Court to sanction Doe’s attorneys for, basically, representing Doe’s interests and securing for her the care that she needed.
The Roberts Court declined Francisco’s request. But that didn’t end the fight over ORR’s policy.
Roe is gone. The chaos is just beginning.
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While the ACLU litigated Doe’s case, it learned of other undocumented minors in government custody who had also been blocked from accessing abortion care. The ACLU sued on behalf of those minors as well and in 2018 won certification of the challenge as a class-action. In June 2019, a different panel of D.C. Circuit judges affirmed the lower court ruling certifying the class of plaintiffs and blocking ORR’s policy.
“The policy functions as an across-the-board ban on access to abortion,” the court wrote. “It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held—including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion.”
It seemed all but certain the Trump administration would take its fight back to the Roberts Court, having asked twice for an extension to file its petition for review. Also, with Kavanaugh now on the Court, the administration had all but secured a ruling in its favor absent a recusal from Kavanaugh. But on Friday that deadline passed with no request from the DOJ for the Roberts Court to weigh in on both the constitutionality of the administration’s policy and the decision the certify the challenge to it as a class-action. This means the D.C. Circuit Court of Appeals decision affirming the injunction blocking the program stands while the ACLU battles in the lower court for an order striking the policy as unconstitutional for good.
It’s unclear why the administration would twice signal an intent to ask the Roberts Court to intervene only to back away at the last minute. It is unlike this administration to shy away from a Supreme Court fight over its most draconian and unconstitutional policies. Perhaps the department is stretched thin, given the sheer volume of cases against it challenging one unlawful administration policy after another. Maybe it simply decided its resources were better spent defending the policy in the lower court at this time?
Or perhaps the DOJ was worried the Roberts Court would decline to take the case, what with it already having one high-profile abortion rights challenge on this term’s docket. A denial from the nation’s highest court would not only leave the appellate decision in place but could create the appearance that the Roberts Court disapproved of the policy—revealing potential cracks in the appearance of a unified conservative block opposed to abortion rights. Either option is plausible with this administration.
But, ultimately, the reason why the administration chose to back away from a Supreme Court fight doesn’t really matter. What matters is the administration’s blatantly unconstitutional policy remains blocked, and undocumented pregnant minors in government custody can access the abortion care they need.