In 1992, the Supreme Court said that officials could not impose “an undue burden” on a woman’s constitutional right to decide to have an abortion. Mr. Flentje said that in the case of the young migrants, “there is never a burden imposed by the government — the burden is created by the minor crossing illegally into the country.”
Moreover, he said, Judge Chutkan’s order was improper because it required the government, in effect, to facilitate access to abortion.
In various cases, Mr. Flentje said, the Supreme Court has held that “the government does not have to commit any resources to facilitate abortion.” But under Judge Chutkan’s order, he said, the government would have to help arrange transportation for a minor and take other steps that would amount to facilitating an abortion, even though the government would not pay for the procedure.
Before being required to allow an abortion, Mr. Flentje said, the government should be given time to try to find a sponsor who could consider the best interests of an immigrant teenager. The government can often find a sponsor in a few weeks, he said, but the time depends on the facts of each case, such as a woman’s age and maturity and the stage of her pregnancy.
The Trump administration said the district court order would promote “abortion tourism,” encouraging citizens of other countries to enter the United States illegally and demand abortions here.
But a coalition of 18 states, led by Attorney General Barbara D. Underwood of New York, told the appeals court: “There is no evidence whatsoever that any unaccompanied minor has entered the country to access abortion services. Many girls do not learn that they are pregnant until they are apprehended and submit to a medical examination in the United States.”
The appeals court panel hearing the case consists of Judges Srinivasan and Robert L. Wilkins, both appointed by President Barack Obama, and Judge Laurence H. Silberman, who was appointed by President Ronald Reagan.