- The Washington Times
Thursday, November 14, 2019

The Justice Department has decided not to appeal a court ruling that requires the government to facilitate illegal-immigrant teens getting abortions in the U.S., defying President Trump’s pro-life allies who had been calling for a fight all the way to the Supreme Court.

The decision was made last week, when Solicitor General Noel Francisco allowed the deadline to lapse without filing an appeal with the justices.

He’d asked for two extensions of time this fall, as he said the government was pondering its decision, but ultimately dropped the case, leaving in place a lower court ruling that granted class action status to illegal immigrant teens and ordered the government to facilitate abortions for those who request them.

“It’s a disappointing decision,” said Kristan Hawkins, president of Students for Life.

A spokeswoman for Mr. Francisco and the Justice Department declined to comment on the decision.

But analysts said he may have been convinced to drop the case after gaming out possible outcomes at the high court — particularly the role of Justice Brett M. Kavanaugh, who participated in the case when it came through the federal appeals court in Washington, D.C.

Though the final decision would have been up to Justice Kavanaugh, it is standard practice for a justice to recuse himself from a case he had heard while on a lower court.

Curt Levey, president of the conservative court-watching outfit Committee for Justice, said that expected recusal would make this “not the ideal case” for a Supreme Court test.

“How can you win when at most you have four votes?” he said.

He also said there could be another bite at the apple later. The current ruling is related to a preliminary injunction which, while binding the government while the case is being heard, is not a final decision on the merits. Without an appeal, the case now goes back to the federal district court in Washington.

The American Civil Liberties Union filed the lawsuit in October 2017 on behalf of juvenile girls who’d been snared trying to enter the U.S. without authorization. Under U.S. law, juveniles found at the border without parents are deemed “Unaccompanied Alien Children,” and are quickly processed by Homeland Security and turned over the Health and Human Services Department.

HHS holds the juveniles in dorms until they can be placed with sponsors.

The ACLU said during that time in HHS dorms, teen girls who had arrived in the U.S. pregnant and sought to get abortions here were being pressured not to follow through — or in some cases outright refused.

The Trump administration had argued that while the actual procedure wasn’t at taxpayers’ expense, having to transport and provide staff to and from the abortion, and any care afterward, was on taxpayers. That, government lawyers said, ran afoul of a general prohibition on spending public money on abortion.

U.S. District Judge Tanya Chutkan, an Obama appointee to the court in Washington, D.C., sided with the ACLU and ordered the government to quit stalling and to facilitate the abortions.

She certified the class, ruling there were enough illegal immigrant juvenile girls that could be pregnant that they needed blanket protections. She ordered notices posted in all the government dorms alerting teens to their abortion rights.

Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project, said the group was pleased the with Trump administration’s decision, and are prepared to continue the fight in the lower courts to “strike down this cruel and unconstitutional policy once and for all.”

“In the meantime, the policy remains blocked so that young people in government custody are able to access critical reproductive health care,” she said.

HHS documents detail the department’s efforts to track pregnancies of teen migrants in custody. One document from March 2019, posted online by altgov2.org, shows details of girls’ ages, the estimated gestational age and whether the pregnancy was the result of consensual sex or abuse or assault.

According to notes on some of the entries, teens were impregnated by husbands or boyfriends a decade or more older.

Justice Department lawyers had argued the juveniles’ abortion decisions should be delayed until the girls could be placed with sponsors, who would better be able to counsel them on the right course of action. While in government custody, though, officials had a duty to defend the life of the fetus, HHS officials said.

Besides, the Justice Department said, the girls had another option — they could accept deportation, which would put them back in their home countries where they would be free from the hand of the U.S. government.

Judge Chutkan rejected that, saying many of the girls’ home countries restricted abortion.

“This court will not sanction any policy or practice that forces vulnerable young women to make such a choice,” Judge Chutkan said.

Texas Attorney General Ken Paxton, whose state was site of several early test cases, said the ruling effectively turned Texas into a “sanctuary state for abortions.”

Mr. Paxton’s office didn’t respond to several requests for comment on the Justice Department’s new decision to forgo an appeal.

The case had been a major flashpoint in late 2017 and early 2018, and Justice Kavanaugh’s participation was an issue during his confirmation hearing last year.

He had written an opinion overturning Judge Chutkan’s initial ruling that some illegal immigrant teens should be allowed to get speedy abortions. He said the government should have had more time to find sponsors to take the juveniles before being forced to facilitate the procedure.

His decision was later overturned by the full appeals court.

Mr. Levey said he considered the case more an abortion case than an immigration case, and in that respect he said it’s not the best vehicle for conservatives who want to see a narrowing of jurisprudence.

There’s another case coming before the justices that will be a bigger test of abortion rights.

Still, pro-life groups had hoped the Trump team would fight this one, too.

“The abortion lobby wants to mandate taxpayer funded abortion for any reason, and using this sad situation, they found a way to bypass the U.S. Congress,” said Ms. Hawkins at Students for Life. “This is another disappointing event at the Department of Justice that has had four years to look into the allegations of Planned Parenthood’s misconduct in trafficking in human infant remains.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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