U.S. District Judge Tanya S. Chutkan ordered the federal government to allow a teenaged illegal immigrant in its custody to have an abortion. Judge Chutkan said she was “astounded” that the Trump administration had sought to prevent the killing of the unborn child. Chutkan, a native of Jamaica, was nominated by Barack Obama.

According to lawyers acting on behalf of Attorney General Jeff Sessions, the 17-year-old girl had crossed the US border illegally last month. Moreover, the government lawyers argued that she has no right to an elective abortion while in federal custody, unless it is a medical necessity. The girl is currently in the 15th week of gestation. Texas prohibits most abortions after 20 weeks. The girl’s parents are reportedly in Mexico. 

Chutkan said in court that the federal government appeared to be offering “Jane Doe” two options: voluntary return to her country from which she left so as to procure an abortion, or carry her baby to full term. “I am astounded by that position,” Chutkan told Deputy Assistant Attorney General Scott Stewart. The judge ordered the federal government to take the teen to terminate her pregnancy — “promptly and without delay.”

Chutkan ordered that the teen should go first to abortion counseling on Thursday and then have the abortion on Friday or Saturday. “Plaintiff…will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled,” the judge wrote. Writing that the abortion is in the public interest, Chutkan wrote “Failure to comply with the terms of this Order may result in a finding of contempt.”

The American Civil Liberties Union is representing the girl in question. ACLU lawyers asked the judge for an emergency restraining order to prevent the federal government from standing in the way of the abortion. The ACLU is also seeking preliminary injunction to protect other girls and women seeking abortions.

Brigitte Amiri argued for ACLU that the federal government was outside of “constitutional bounds” in standing in the way of the teen’s right to an abortion. Earlier this month, a federal magistrate in California agreed with the ACLU in the case but could not issue a ruling because the teen girl is currently being held in Texas. 

Arguing for the government, Stewart said that pregnant illegal immigrant minors are not entitled to abortions. He said that opening the door “would significantly infringe on the government’s interests in preserving life and protecting national boundaries.”

“I respectfully disagree that she’s entitled to an abortion” said Stewart. He said that there is no medical emergency. The federal government contends that there are “strong and constitutionally legitimate interests in promoting childbirth, in refusing to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody.”

In response, Judge Chutkan said that the girl need not have a medical emergency to get an abortion, arguing that the teen had followed state and federal rules, and had permission from a state judge in Texas to have an abortion. She was to pay for the abortion herself or with help from a court-appointed guardian.

Arguing for the government, Stewart said that the girl can leave the US voluntarily and obtain an abortion elsewhere. He said that she had chosen to remain in government custody instead of going back to her home company. Chutkan said that federal workers had taken the girl to Christian group for pregnancy counseling and had told her mother about the abortion plans. According to Chutkan, the girl’s constitutional right to privacy was thus violated. “The government certainly had no problem taking her against her will to receive pregnancy counseling, which was designed to change her mind,” Chutkan said. “The government didn’t seem to have any problem facilitating that.”

Chutkan quizzed Stewart about his knowledge of the law, asking whether he thought that illegal immigrants had constitutional rights and if he believes the Roe v. Wade remains the “law of the land.” While he acknowledged the Supreme Court’s ruling on abortion, Stewart said that illegal immigrants have but “minimal” rights in the United States. “I’m not going to give you a concession on that your honor,” he said. The judge laughed in response. 

It is not clear from which is the girl’s native country or whether abortion is legal there. She was arrested in the US after crossing the border from Mexico.

Judge Chutkan was appointed to the bench in 2014 by Barack Obama. She contributed to Obama's first presidential campaign and to his second. She has also contributed to the political campaign of liberal Democrat Sen. Kirsten Gillibrand of New York.



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Martin Barillas is a former US diplomat and the editor of Spero News.

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