WASHINGTON (AP) — A federal appeals court on Tuesday cleared the way for a 17-year-old immigrant held in custody in Texas to obtain an abortion.
The full U.S. Court of Appeals for the District of Columbia Circuit ruled 6-3 in favor of the teen. The decision overturned a ruling by a three-judge panel of the court that at least temporarily blocked her from getting an abortion. The Trump administration could still appeal the decision to the Supreme Court.
Later Tuesday, in a separate order, a judge said the teen should be quickly taken to obtain required counseling and the abortion. Under Texas law, a woman seeking an abortion must have a counseling session 24 hours before the procedure with the doctor who will perform the abortion.
The teen, whose name and country of origin have been withheld because she’s a minor, is 15 weeks pregnant. She entered the U.S. in September and learned she was pregnant while in federal custody in Texas.
She obtained a state court order Sept. 25 permitting her to have an abortion. But federal officials refused to transport her or temporarily release her so that others could take her to have an abortion.
Lawyers for the Department of Health and Human Services, which is responsible for sheltering children who illegally enter the country unaccompanied by a parent, said the department has a policy of “refusing to facilitate” abortions and that releasing the teenager would require arranging a transfer of custody and follow-up care.
The teenager’s lawyers have said all the government needed to do was “get out of the way.” An attorney appointed to represent the teen’s interests said she could transport her to and from appointments necessary for the procedure, and the federal government would not have to pay for it.
One of the six appeals court judges that sided with the teen Tuesday, Patricia Millett, wrote that the court’s decision “rights a grave constitutional wrong by the government.” All six judges were appointed by Democratic presidents.
Three judges, all of whom were appointed by Republican presidents, dissented, with Judge Brett Kavanaugh writing that his colleagues’ decision “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
A lower court judge, U.S. District Judge Tanya Chutkan, had sided with the teen and set dates for the procedure last week, saying it should take place Friday or Saturday, but the government appealed and the three-judge panel of the appeals court blocked the abortion from occurring then. The panel ruled 2-1 on Friday that the government should have until Oct. 31 to release the teen into the custody of a so-called sponsor, such as a relative in the United States, so she could obtain the abortion outside government custody.
On Tuesday, the full appeals court overruled the panel’s decision and returned the case to Chutkan, saying she was “best suited” to set new dates. Chutkan responded with an order saying the teen should be taken for counseling and the abortion “promptly and without delay.”
The teen had been allowed under an order from Chutkan to attend a counseling session last week.
But Susan Hays, legal director for the Texas group Jane’s Due Process, which is assisting the teen with obtaining an abortion, said the teenager will likely need to undergo a new counseling session with the doctor who would perform an abortion. That counseling session could be scheduled for as soon as Tuesday afternoon, with the abortion on Wednesday, Hays said. Late Tuesday, however, Hays said the counseling had not yet taken place.
The Department of Health and Human Services didn’t immediately comment on the ruling. The Justice Department said it is reviewing the order and declined to comment.