What’s Going On With These Two Other Illegal Immigrants Seeking U.S. Abortions?

What’s Going On With These Two Other Illegal Immigrants Seeking U.S. Abortions?

The American Civil Liberties Union is seeking to force the federal government to facilitate abortions for two more illegal immigrants. And the details of the case so far are odd.
Margot Cleveland
By

As Christians around the world prepare to celebrate the birth of our Savior to a poor, young, unwed mother, the American Civil Liberties Union was busy in court seeking to force the federal government to facilitate abortions for two illegal aliens: Jane Roe and Jane Poe.

Much has happened since the ACLU filed an amended complaint on December 15, 2017 in Garza v. Hargan, a case that garnered the nation’s attention two months ago when a 17-year-old illegal alien from Central America, identified as Jane Doe, sued to force the federal government to facilitate the abortion of her 15-week-old fetus. Unfortunately, Doe succeeded.

In Friday’s amended complaint, the ACLU added two new plaintiffs, identified as Jane Roe and Jane Poe. As with their original filing, the ACLU alleged that the U.S. Department of Health and Human Services was violating the girls’ constitutional right to an abortion by refusing to release them from the custody of the Office of Refugee Resettlement to obtain abortions.

Roe is 10 weeks pregnant and Poe is 22 weeks pregnant. The complaint alleged both girls were 17 years old, which matters because minors are given U.S. services and delayed residence in the United States rather than returned home more directly, the usual for adult illegals. Attached to the complaint were signed statements, under oath and penalty of perjury, attesting their minor status.

Court Orders Feds to Facilitate Illegals’ Abortions

On Monday, following an expedited hearing, federal district court Judge Tanya Chutkan entered a temporary restraining order (“TRO”) requiring the government to transport Poe and Roe, or allow Poe and Roe to be transported, “promptly and without delay, on such dates, to an abortion provider, in order to obtain any pregnancy or abortion-related medical care and to obtain the abortion procedure itself, in accordance with the abortion providers’ availability and any medical requirements.”

At the government’s request, the district court stayed its restraining order for 24 hours to allow the government to file an appeal. Late Monday evening, the government filed an appeal with the D.C. Circuit Court of Appeals and moved to stay the TRO pending appeal, but only for Jane Roe. The only reference to Poe came in a cryptic footnote, reading: “Ms. Poe also sought a TRO. Because of the differing circumstances surrounding Ms. Poe’s case, the government does not seek a stay of the TRO as it relates to Ms. Poe.”

Something was up. For some reason, the government did not appeal the district court’s order directing the Office of Refugee Resettlement to facilitate Poe’s abortion—when Poe was 22-weeks pregnant, a stage at which the baby can survive outside the womb! In later court filings, the government merely noted that it “did not seek an immediate stay of the injunction with respect to Ms. Poe, and the injunction is in effect with respect to Ms. Poe. That aspect of the injunction will soon be moot when Ms. Poe obtains an abortion pursuant to this Court’s order.”

When asked why a stay had not been sought in Poe’s case, a Department of Justice representative intoned: “We are committed to defending the Department of Health and Human Services’ care of unaccompanied minors. As to these cases, our approach reflects the facts and circumstances specific to each case. However, given the privacy concerns involved, as well as the terms of the temporary restraining order, we cannot discuss further details.” Something was really up.

So, What’s Going On?

The answer may lie in a side-fight between the ACLU and the government. After the ACLU obtained the restraining order and the government filed its notice of appeal with the D.C. Circuit, the ACLU filed, under seal, the “Decision by Director Scott Lloyd for Jane Poe with attached note to file,” with a motion to file a redacted version in the public record.

Lloyd is the director of Office of Refugee Resettlement (“ORR”) and, according to court filings, “the document explains why the ORR Director determined that Ms. Poe should not receive an abortion.” The government opposed the motion to make Lloyd’s document public, reasoning that Lloyd’s “determination is no longer at issue in this litigation, because Ms. Poe’s individual claim for injunctive relief will soon become moot.”

In other words, because the feds capitulated and facilitated Poe’s abortion of her 22-week-old unborn baby, there is no reason to make public the basis for Lloyd’s decision that she should not receive an abortion. The ACLU, however, is still pushing the court to make this document public, which could happen as early as today.

But what about Roe? Well, Roe’s out of the case too. After filing its motion for a stay with both the D.C. Circuit and the U.S. Supreme Court, the government learned on Tuesday morning, that, contrary to her sworn statement, Roe is not 17 years old, but 19. While unaccompanied minors illegally present in the United States receive taxpayer-sponsored housing in shelters, health care, and education, adult illegal aliens detained at the border face expedited removal.

ICE Just Released Roe Inside the U.S.

Upon discovering Roe’s true age, the ORR initiated the process of transferring her to the Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”). The Office of Refugee Resettlement transferred Jane Roe to ICE, which in turn released Roe from custody on her own recognizance. The government then voluntarily dismissed its appeal from the district court’s order directing the government to transfer or arrange the transport of Roe to obtain an abortion.

The district court has not yet ruled on the ACLU’s motion to unseal a copy of the “Decision by Director Scott Lloyd for Jane Poe with attached note to file,” but directed the government to file any supplemental briefing on its claim that Lloyd’s decision is privileged by noon on Wednesday.

Finally, yesterday the Supreme Court distributed to the justices the government’s petition for review of the D.C. Circuit’s earlier decision in Garza –that the government substantially burdened Jane Doe’s supposed right to an abortion by refusing to allow her to obtain one. The Supreme Court scheduled the petition to be discussed at its January 5, 2018, conference.

While the government’s decision to release Roe rather than initiate removal or criminal proceedings for perjury may seem strange, DHS apparently facilitates abortions for adult detainees, so waving Roe on allows the government to wash its hands of complicity in the killing of her unborn baby. But why, then, did the government stand down in protecting Poe’s unborn baby—who at 22 weeks old had a shot at survival?

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.

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