//  10/30/17  //  Commentary

Cross-posted from Dorf on Law

Acting before the Department of Justice could seek an emergency stay from the Supreme Court, an undocumented minor known in court papers as Jane Doe received an abortion just a day after the en banc US Court of Appeals for the DC Circuit ruled that the federal government could not continue to block her from doing so. Judge Millett's concurring opinion provides the chief rationale for the ruling, which was an otherwise unexplained per curium order. It is a remarkably thorough opinion, given the tight time constraints.

In a Verdict column this week, I intend to discuss one of the arguments that the government offered in its opposition to en banc review: the notion that permitting Doe to receive an abortion, even at private expense, would make the government complicit in the abortion, which the Trump administration opposes on moral grounds. I shall explain that while this is an unprecedentedly extreme view of complicity, it is the next logical step in a ratcheting up of complicity claims in recent years, first in religion cases and lately in speech cases. Spoiler alert: I disapprove of this trend.

Here I want to puzzle over another aspect of the government's position in the Doe litigation: Timing. The Trump/Sessions DOJ, in the nominal interest of protecting the unborn, took the position that a delay in obtaining an abortion raises no serious issues.

Here is a bare outline of the case: Doe crossed the border illegally and was quickly apprehended. Doe claimed a right to stay in this country, at least temporarily, because (she claimed) she came here fearing abuse in her home country. As an unaccompanied minor, she was detained in a facility under contract with the federal government while the government sought a "sponsor" such as a family member or other to whom to release her pending deportation proceedings. That search was unsuccessful. While in custody, Doe learned she was pregnant and sought an abortion. With the aid of attorneys, she obtained an order from a Texas state judge permitting her to make that decision for herself, pursuant to Texas's procedure (which is required by SCOTUS precedent) requiring that minors otherwise forbidden from obtaining abortions without parental notification or consent be given the opportunity to prove that they are sufficiently mature to make the decision for themselves (as Doe proved) or, if not, that an abortion would be in the girl's best interest. Notwithstanding her compliance with Texas law, the federal government, pursuant to a policy that has also been challenged in other litigation, refused to allow Doe to obtain an abortion. She sued in federal court and eventually obtained the order that enabled her to do so.

Before her victory in the en banc DC Circuit, however, Doe lost before a panel of that court, which accepted the government's argument for delay until the end of the current month so that the government could try to find a sponsor who would take custody of Doe and thus relieve the government of any complicity in her abortion. As Judge Millett noted in her concurrence in the en banc ruling (and earlier in a dissent from the panel ruling), this was a particularly strange ruling, given that the government had not found a sponsor for Doe in nearly seven weeks. Why, she asked, was there reason to think the government would find one in less than two weeks?

The government did not argue that Doe had no right to an abortion. That bothered Judge Henderson, who wrote in dissent from the en banc opinion that a minor alien in Doe's situation has no constitutional right to an abortion. But that was not the government's position. The government conceded that Doe had a right to an abortion but contended first, that it was not blocking her from getting one because she could do so by consenting to voluntary deportation, and second, that it should not have to "facilitate" the abortion by releasing her into the temporary custody of her guardian ad litem and others to travel to obtain one. The facilitation concern would be vitiated, the government said, if Doe had a sponsor who took her for the abortion.

But that could mean waiting another eleven days or longer. Abortion becomes a riskier procedure as one advances into pregnancy. Judge Millett cited a study showing that the risk increases by 38% with each gestational week. Even if the absolute risk of an abortion remains relatively low, one would think the government would want some good reason to impose that added risk on a minor who, by its own account, is going to have an abortion anyway.

One would also think that the government would be concerned about the moral implications of delaying a second-trimester abortion by eleven days. In recent years, some states have enacted laws banning abortion after twenty weeks. The U.S. House of Representatives recently passed a bill that would do the same at the federal level (as I discussed here). Unless and until the Supreme Court overrules or substantially modifies the rulings finding a constitutional right to abortion, such laws are unconstitutional (because 20 weeks is before fetal viability, the line drawn by the current case law). But in supporting 20-week laws, pro-life legislators and executives have signaled that later abortions are worse than earlier abortions.

A strict pro-life view would reject that judgment. If one thinks that a human zygote is as entitled to live as is a 39-week fetus or a 17-year-old, then one won't worry about whether an abortion takes place now or in eleven days. And if that's one's view, then delaying an abortion is an unalloyed good, because it increases the odds that no abortion will take place: Maybe the girl or woman contemplating an abortion will change her mind; maybe she will miss her appointment; etc. Perhaps that is the real logic of the Trump administration's opposition to "facilitating" the abortion for Jane Doe and others like her. Perhaps unlike most Americans who view later abortions as more problematic than earlier ones, the Trump administration takes an orthodox pro-life view.

But if so, the administration is being dishonest. Its real reason for opposing Jane Doe's abortion had little to do with opposing facilitation of abortion. Its real reason was opposition to abortion, full stop, even if that opposition leads to later abortions.

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