Six months after the Trump administration asked the Supreme Court to take up Azar v. Garza, the case of an unauthorized immigrant teenager who sought an abortion while in government custody, the Court has finally answered — that the whole case is moot.
Because the teenager (referred to as “Jane Doe”) actually had the abortion back in October, the Court ruled Monday in a per curiam (unsigned) opinion that the lawsuit over whether the government could legally stop her from having the abortion didn’t matter anymore.
Jane Doe is one of several unauthorized immigrant teenagers who have sought abortions while under the care of the Office of Refugee Resettlement (ORR), an agency within the Department of Health and Human Services that is responsible for caring for “unaccompanied alien children”— immigrants under 18 who come to the US without papers and who aren’t in the care of an adult relative.
(The Trump administration has recently started separating families who arrive at the US-Mexico border without papers by prosecuting the parents in criminal court and sending the children to HHS as “unaccompanied” minors. But before the recent policy shift, HHS only dealt with immigrants under 18 who’d come to the US unaccompanied by parents.)
The Supreme Court’s ruling vacates a ruling from the DC Circuit Court of Appeals, which held that Jane Doe did have the right to an abortion, and instructs the lower courts to dismiss the case.
In theory, this is a victory for the Trump administration, which has maintained that Jane Doe shouldn’t have gotten an abortion in the midst of the lawsuit — during what appears to have been a communication breakdown between the administration, the American Civil Liberties Union attorneys representing Jane Doe, and the courts. But the Supreme Court rejected the administration’s request to sanction the ACLU attorneys for their actions in the case.
The bottom line, in the view of New York magazine legal correspondent Cristian Farias, is that the Court “split this thing right down the middle.”
Wow: Supreme Court finally rules in the case of the undocumented teen who sought an obtained an abortion.— . (@cristianafarias) June 4, 2018
They literally split this thing right down the middle: No sanctions for @ACLU, wiped down ruling in favor of teen as "moot," and the case remains live in the lower courts.
The short procedural ruling — and the fact that no justice wrote a dissent — seemed weirdly anticlimactic to legal observers, given how dramatic the facts of the case were and how long the Supreme Court had been considering the Trump administration’s request for an appeal.
To analysts who are used to reading the tea leaves in Supreme Court rulings, the most likely explanation is that it took the Court a long time to piece together a compromise that could get all nine justices on board — or at least satisfied enough not to write a dissent.
tl:dr: This doesn't mean much. The main reason we were paying attention was because, given how long they had it, we presumed a justice must have been writing a fiery dissent. No one did, though, and there were no sanctions, either, so this sort of goes into the ether.— Chris Geidner (@chrisgeidner) June 4, 2018
This case isn’t dead yet, because it hasn’t been formally dismissed. And because the Supreme Court didn’t resolve the underlying question of whether unauthorized immigrants in government custody have the right to an abortion — which is closely tied to the question of which rights unauthorized immigrants have under the Constitution, generally — the issue is almost certain to come up again in future.
The agency fighting an anti-abortion crusade against immigrant teens has come under fire for whether it’s adequately doing the rest of its job
Under Trump, the Office of Refugee Resettlement has spent a lot of energy trying to keep teenagers in its custody from getting abortions. The head of ORR, Scott Lloyd, says he’s never approved an abortion request — and met personally with one abortion-seeking immigrant to try to change her mind. According to a Vice News report, ORR officials considered “reversing” one teenager’s medical abortion that was already underway.
Increasingly, though, the agency is under scrutiny for its treatment of the tens of thousands of immigrant children and teenagers who aren’t trying to have an abortion.
Recent reporting has revealed that during both the Obama and Trump administrations, ORR has lost track of many immigrants that were supposed to be its responsibility after releasing them to relatives or guardians. Of 7,000 immigrants that ORR tried to locate last fall, Ron Nixon of the New York Times reported in April, nearly 1,500 couldn’t be located.
It’s not clear how many of those immigrants made an informed decision to go “off the grid” to avoid the risk that they, or their unauthorized immigrant parents or guardians, would ultimately be deported. But in at least a few cases, immigrant children and teenagers have gotten released to human traffickers and subjected to slave labor.
Meanwhile, questions are growing about how ORR treats the children and teenagers who are in its custody. Sen. Jeff Merkley (D-OR) attempted to visit a facility for unaccompanied children run by an ORR contractor Sunday night and was denied entry and threatened with arrest.
In this context, it’s noteworthy that ORR is spending so much energy trying to keep teens from getting abortions — including Lloyd’s personal involvement. Monday’s Supreme Court ruling, by declaring this specific lawsuit moot, ensured that the legal issue remains alive — and that the administration will probably continue to spend its resources fighting it.
Correction: This article originally claimed that the Supreme Court was still keeping the possibility of sanctions against ACLU attorneys open. This was based on a misinterpretation of a separate order in the case, and has been removed.