Supreme Court May Act On Government Facilitated Abortions For Illegals

Kevin Daley | Supreme Court Reporter

The Supreme Court may take action on an inflammatory case involving the Trump administration’s refusal to facilitate an abortion for an underaged illegal alien in federal custody as soon as Friday.

The case, Hargan v. Garza, is an ACLU-organized legal challenge to a policy the administration has struggled to defend in court.

The case arose when the Department of Health and Human Services’ Office of Refugee Resettlement declined to facilitate abortive care for a 17-year-old immigrant held at a federal facility in Texas. Little is known of the minor, identified in court papers only as “Jane Doe.” She was apprehended in September while illegally entering the United States.

Doe was 15 weeks pregnant when the litigation began. Texas does not permit abortions after 20 weeks.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in October that HHS can deprive Doe of abortion access until Oct. 31, while the government searches for an adult sponsor to procure the procedure on her behalf. The full D.C. Circuit overturned that decision, concluding that the Department’s actions imposed an undue burden on a woman’s access to abortion.

The ACLU helped Roe obtain the abortion immediately after the ruling, before the Justice Department could appeal to the Supreme Court, effectively ending the controversy.

The abortion was funded by private donations.

In response, government lawyers asked the Court to assess sanctions against the ACLU’s lawyers, though ethics experts are skeptical Roe’s lawyers acted unprofessionally. They also asked the high court to vacate the D.C. Circuit’s ruling, since the case was mooted before the justices had the chance to review it. A case is considered “moot” when the controversy at issue is resolved before a ruling is issued.

The Court is scheduled to consider those requests during a Friday conference.

The administration has taken multiple positions in this case and in related litigation. The government has argued it has no duty to facilitate abortion or that an illegal minor could return to their home country to procure an abortion.

The U.S. Supreme Court established in a 2008 case found that foreign nationals detained by the U.S. in U.S. territory have certain Fifth Amendment rights.

The ACLU has organized other legal challenges on behalf of similarly situated foreign nationals currently in federal custody. Those cases are currently pending before lower federal courts.

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