The DOJ's Arguments for Preventing an Undocumented Girl From Having an Abortion Are Sickening

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The U.S. Department of Justice has been fighting a case to prevent a teenage girl, who is an undocumented immigrant, from having an abortion. She has been in federal custody since early September. And the DOJ’s argument in her case has been, in a word, galling.

The American Civil Liberties Union is representing the girl, known only as Jane Doe, in the case. The ACLU says that their client has secured transportation to and from an abortion clinic, as well as funding for the procedure, yet federal officials have prevented her from getting an abortion for 25 days. She is now in her second trimester.


On Wednesday, a federal judge ordered the government to allow the 17-year-old girl to get an abortion. That decision was temporarily stayed after the Justice Department appealed Chutkan’s ruling to the U.S. Court of Appeals for the D.C. Circuit late Wednesday.

The DOJ’s stance in this case is deeply troubling. From the Washington Post:

In court filings, the Justice Department said the government has “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.”

Read those words again, and let them sink in. The litigative arm of the federal government is now arguing that the government has “strong and constitutionally legitimate interests in promoting childbirth.”

District Judge Tanya Chutkan was justifiably bewildered in her reaction to the DOJ’s argument on Wednesday. From the Post:

During the hearing Wednesday, Chutkan asked Justice Department lawyer Scott Stewart whether he thought illegal immigrants had constitutional rights and whether he believes that the 1973 Supreme Court ruling Roe v. Wade , which guarantees a woman’s right to an abortion, is still the “law of the land.”

Stewart acknowledged the ruling but said the government views this case differently because the teen is an undocumented immigrant in federal custody. He signaled that undocumented minors do not have a constitutional right to an elective abortion in federal custody, unless it is a medical emergency, and also said immigrants here illegally have “minimal” protections in this country.

“I’m not going to give you a concession on that, Your Honor,” he said.

The judge laughed. “This is remarkable,” she said.

While federal agents have not allowed the girl to go to an abortion clinic, they had no qualms taking her to a Christian pregnancy facility against her wishes in an effort to convince her not to go through with the abortion. The officials also told the girl’s mother that she was pregnant. Both of these actions may have violated her constitutional rights, according to Chutkan.


On Friday, a different federal judge reviewed the case in the wake of the DOJ’s appeal. Slate justice correspondent Mark Stern was at the hearing, which sounded even worse than Wednesday’s hearing:


This all comes as the Senate prepares to vote on a 20-week abortion ban, which has already passed through the House. And while abortion is technically legal everywhere, some red states have used legal snakery to make abortion services virtually inaccessible for many residents.


What kind of government does this sound like to you? Does this sound like a government that respects Supreme Court precedent? That respects equal protection under the law? That respects women’s autonomy over their own bodies? That respects the rights of those who disagree with its agenda?

It’s tempting to shout, “This can’t happen here!” But the fact is that forced births are already a reality in the United States, especially for poor women, immigrants and women of color. Unfortunately, we live in a country that right now is controlled by a lot of old white men who don’t like the idea of women having autonomy over their own bodies. Forced childbirth is the logical endpoint when a society sees women not as human beings, but as sentient fetal incubators.


We could do so much better.

Update, 5:24 PM:


Update, 5:55 PM:

Senior politics reporter at Splinter.

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