A federal appeals court in Washington ruled Friday against a Trump administration policy it described as a "blanket ban" preventing immigrant teens in government custody from getting abortions, and it kept in place an order blocking the policy.
The policy, which dates to 2017, prohibited shelters from facilitating abortions for children held in government shelters after entering the country illegally. The policy has not been in force since March 2018, when a judge blocked it, writing that the government couldn't implement a policy that strips minors of the right to make their own reproductive choices. On Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld that judge's ruling.
"We are unanimous in rejecting the government's position that its denial of abortion access can be squared with Supreme Court precedent," the opinion says. The Supreme Court first announced the right to an abortion in its 1973 Roe v. Wade case, and subsequent rulings have upheld it.
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The opinion for the panel of judges — Sri Srinivasan, Robert Wilkins and Laurence Silberman — was unsigned. Beyond that agreement, however, Silberman wrote a dissent to explain why he wouldn't have allowed the case to go forward as a class action. And he argued in support of giving officials a limited window to transfer a minor out of government custody to the care of a sponsor, where the child could then obtain an abortion without the government's assistance. Srinivasan and Wilkins were appointed by President Barack Obama and Silberman by President Ronald Reagan.
The Trump administration could now ask the full U.S. Court of Appeals for the District of Columbia Circuit to hear the case. It could also appeal to the Supreme Court. But Justice Brett Kavanaugh likely wouldn't take part in the case. That's because he ruled on the case at an earlier stage as a judge on the D.C. Circuit, where he made the argument Silberman repeated about transferring a minor to a sponsor's care. That would leave eight justices, four liberals and four conservatives, to rule on the case.
The case against the administration's policy was brought by the American Civil Liberties Union, which represented several pregnant minors who were seeking abortions. In those instances, teens who sought abortions were ultimately able to obtain them. And since the judge's order in 2018 blocking the policy, other minors in government custody who have sought abortions have been able to get them.
"The Trump administration's cruel policy of blocking young immigrant women in federal custody from accessing abortion was a blatant abuse of power," said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, in a statement after the ruling. "We are relieved that today's ruling continues to prevent the policy from taking effect while the case proceeds, and allows the case to proceed as a class action as we continue this fight."
The Department of Justice declined to comment on the ruling. A spokesman for the office within the U.S. Department of Health & Human Services that is responsible for sheltering children who illegally enter the country unaccompanied by a parent, said the decision is being reviewed. DHS allows pregnant women in immigration custody to obtain abortions, but the policy had been different for minors.