Tomorrow, the D.C. Circuit will apparently hear oral argument on the government’s emergency motion to prevent an undocumented young woman from obtaining an abortion before it becomes too late for her to do so.  In Texas, where the young woman is, you can’t obtain an abortion after 20 weeks of the pregnancy.  The young woman is currently 15 weeks pregnant, and the district court (Judge Chutkan) ordered the government to allow her to obtain an abortion.

Zoe Tillman at Buzzfeed summarized the facts:

The pregnant teenager, who is being held in a federally funded shelter in South Texas, has been fighting to obtain an abortion since she was apprehended at the US–Mexico border on Sept. 11. Trump administration officials had blocked the shelter from permitting her to travel to a provider, according to court filings.

Tillman’s report also highlighted some points of contention during oral argument:

The judge was incredulous as she questioned the lawyer for the government, at one point saying she was “astounded” at the government’s apparent position that the teen’s only options were to either carry the pregnancy to term or go back to her home country.

“Just because she’s here illegally doesn’t mean she doesn’t have constitutional rights,” Chutkan said.

US Department of Justice lawyer Scott Stewart argued before the court Wednesday that Doe is in the United States illegally and disputed that she was entitled to have an abortion. Chutkan asked Stewart if he would agree that Doe still had constitutional rights. When Stewart pushed back, saying he wasn’t going to make a concession on that, Chutkan shook her head and laughed.

“That is remarkable,” the judge said….

The exchange calls to mind an exchange between Justice Kagan and the lawyer for the United States during the argument in Jennings v. Rodriguez.  Rodriguez presents the question of whether the government must conduct individualized bond hearings to determine whether it should continue to detain certain people who are detained for immigration-related reasons.

The exchange is as follows:

JUSTICE KAGAN: Mr. Stewart, is – is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

MR. STEWART: It is premised on that….

JUSTICE KAGAN: Okay. If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -­that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no. Is that right?

MR. STEWART: Yeah, I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country. 

JUSTICE KAGAN: Okay.  So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor... 

And earlier:

JUSTICE KAGAN: But if I could just push on Justice Kennedy's question a bit, I mean, for those -- that class of aliens, we are talking about people who have been in this country, who clearly do have various constitutional rights. And are you suggesting that if the backlog is five years, it's okay to keep them there for five years …?

MR. STEWART: I would say that is not unconstitutional….… Let me give you my most extreme answer, and then let me give you a – a backup answer. The most extreme answer is the criminal alien who is detained for more than six months, unlike every other form of detention that are -- is discussed in the briefs, that alien always has the option of terminating the detention by accepting a final order of removal and returning home.

JUSTICE KAGAN: I take it that that's your most extreme answer because it doesn't sound all that good.

(Laughter.)

The D.C. Circuit panel that will hear argument tomorrow is Judge Millett, Judge Kavanaugh (who could be under consideration for a nomination to the Supreme Court if President Trump gets another nomination), and Judge Henderson.  It’s not exactly a great panel for the young woman.

On the other hand, for those judges or Justices who are interested in the arcane matter of the text of the Constitution, the Due Process Clause extends its protections to all “person[s],” not just citizens.  (The Due Process Clause is the provision from which the Court has inferred women have a right to decide to end a pregnancy.)  And the implications of the government’s position—denying this young woman her ability to exercise her rights by threatening her with immigration consequences—are alarming to say the least.

This is a case to watch, and as Irin Carmon noted, it deserves more attention than it’s getting.  So thank you to Zoe Tillman for keeping us all updated.

@LeahLitman

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