Written By Lauren Wolfe
On March 30, 2018, a federal judge granted a preliminary injunction blocking the Office of Refugee Resettlement (ORR) from interfering with or obstructing access to abortion services for all pregnant, unaccompanied immigrant minors in legal custody of the United States.
The ORR is responsible for the care and placement of unaccompanied, immigrant minors. These minors are placed in shelters, run by various aid organizations, where they have full access to medical care.
Under the Obama Administration, ORR gave immigrants in the custody of the United States access to abortion services at their own expense, paying for such services only in cases of rape, incest, or a threat to the minor’s life.
In March of 2017, the Trump Administration made known its refusal to “facilitate” such procedures for “pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.” In consequence, ORR informed federally-funded shelters that their employees were “prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR.”
Multiple individual cases have been brought in response to the March directive. There several named plaintiffs in a class action suit.
(1) Jane Doe
Jane Doe (“J.D.”) was apprehended at the U.S.-Mexico border and placed in an ORR shelter in Texas in September of 2017. After finding out she was pregnant, J.D. sought to terminate her pregnancy. She received a judicial bypass of Texas’ parental notification and consent requirement, obtained private funding, and arranged for transportation to the medical facility. However, ORR refused to transport or allow anyone else to transport her to the facility, claiming that doing so would constitute the facilitation of an abortion. She subsequently sought injunctive relief, which was granted on October 18, 2017; however, ORR sought an emergency stay, pending appeal. Just a couple of days later, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, granted the injunction. Consequently, J.D. was able to proceed with her abortion.
(2) Jane Poe
In December of 2017, Jane Poe (“J.P.”) was in an ORR shelter in an undisclosed location, when she decided to terminate her pregnancy after discussing the options with her physician. Her pregnancy was the result of a rape prior to her crossing the U.S.-Mexico border. She requested to have an abortion three times, threatening to hurt herself if she could not terminate her pregnancy. The Director of ORR, E. Scott Lloyd, claims to have refused to sign off on her abortion because he believes abortion represents “violence that has the ultimate destruction of another human being as the goal.” Lloyd determined that having an abortion would not be in J.P.’s best interest since “there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her.” The U.S. District Court for the District of Columbia granted J.P.’s request for injunctive relief, and she was allowed to obtain an abortion.
(3) Jane Roe
Jane Roe (“J.R.”) was in an ORR shelter in an undisclosed location, when she learned she was pregnant on November 21, 2017. She decided to terminate her pregnancy, but the ORR refused to allow it. The U.S. District Court for the District of Columbia granted J.R.’s request for injunctive relief, but ORR appealed. However, before the case was concluded, J.R. turned eighteen. Subsequently, ORR moved for dismissal due to the fact that J.R. was not longer a minor. J.R. was thereafter transferred to the custody of the Department of Homeland Security, where regulations allowed her to obtain an abortion. ORR has custody over unaccompanied immigrant minors and Immigration and Customs Enforcement, part of the Department of Homeland Security, has custody of other unauthorized immigrants, including adults. Under current governmental policy and regulations, adult women in Immigration and Customs Enforcement custody are permitted to have abortions.
(4) Jane Moe
Jane Moe (“J.M.”) was denied an abortion while in ORR custody in an undisclosed location. She obtained private funds to pay for procedure and staff at the shelter were willing to accompany her to a clinic. She filed with the U.S. District Court for the District of Columbia seeking a temporary restraining order on January 11, 2018. ORR responded by claiming they had found a sponsor for J.M., A sponsor is similar to a foster parent. They have to provide a home for the minor and ensure that they appear at all immigration proceedings. While in their care, a sponsor may take the minor to get an abortion. J.M. was released into a sponsor’s custody on January 14, 2018.
The Supreme Court held in Roe v. Wade that a woman has a constitutional right to choose whether to have an abortion. In Planned Parenthood v. Casey, the Supreme Court further held a statute will be held unconstitutional if it has the purpose or effect of imposing an undue burden upon, or a substantial obstacle in, the path of a woman seeking an abortion.
In Maher v. Roe and Harris v. MaRae, the Supreme Court held that prohibiting the use of Medicaid funds for abortions did not place an undue burden on a woman’s access to an abortion. In comparison, there was never an issue over the use federal funds to pay for abortions in this case. For all plaintiffs mentioned, private funding was available to pay for the abortions.
The United States District Court for the District of Columbia held that “ORR’s policies and practices infringe on the female U[naccompanied] C[hildren]’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision on whether or not to continue their pregnancy prior to viability—a quintessential undue burden.” Judge Tanya S. Chutkan noted that the right of a minor to choose whether to terminate her pregnancy is “not diminished by [her] status as [an]unauthorized immigrant.”
Government officials argued that their polices did not create an undue burden because the unaccompanied, immigrant minors could voluntarily deport themselves to their home country or be placed with a sponsor. The court disagreed with this argument because, by choosing to be deported, the minor is relinquishing any claim regarding her entitlement to remain in the United States. Judge Chutkan claimed that this creates a “Hobson’s choice, wherein one set of rights must be waived in order to effectuate another.”
In addition, the other option of being placed with a sponsor also creates an undue burden. A sponsor is similar to a foster parent because they are responsible for the care and custody of the minor until their immigration proceedings are concluded. Sponsors have to be either related to the minor or have some “bona fide social relationship” with the minor prior to entering the United States. This option creates an undue burden because it is a lengthy and complex process with ORR having the final say on approval. In one instance, it took over nine weeks to find a sponsor.. Depending on how far along one’s pregnancy is, finding a sponsor could exceed the time limit on a legal abortion. The court held that ORR may not create or implement any policy that takes away unaccompanied immigrant minors’ right to choose whether to have an abortion.
The case against ORR’s policy will proceed as a class action in the United States District Court for the District of Columbia representing “all pregnant, unaccompanied immigrant minor children who are or will be in the legal custody of the federal government.” There were at least 420 pregnant unaccompanied minors in ORR custody in 2017, so the class action will cover numerous pregnant minors. Based on the prior similar decisions, it is likely that the court will side with the plaintiffs, guaranteeing access to abortion services for unaccompanied immigrant minors.
Ann E. Marimow, Spencer S. Hsu & Maria Sacchetti, U.S. Government Ordered to Allow Abortion Access to Detained Immigrant Teens, The Washington Post, Mar. 30, 2018.
Brigitte Amiri, A Fourth Young Immigrant Woman is Being Blocked by the Trump Administration From Obtaining an Abortion, American Civil Liberties Union, Jan. 11, 2018, https://www.aclu.org/blog/reproductive-freedom/abortion/fourth-young-immigrant-woman-being-blocked-trump-administration
Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017).
Garza v. Hargan, No. 17-cv-02122, 2018 U.S. Dist. LEXIS 54899 (D.C. Cir. Mar. 30, 2018).
Harris v. McRae, 448 U.S. 297 (1980).
Jonathan Blitzer, The Trump Officials Making Abortion an Issue at the U.S.’s Refugee Office, The New Yorker, Oct. 26, 2017, https://www.newyorker.com/news/news-desk/the-trump-officials-making-abortion-an-issue-at-the-uss-refugee-office.
Kat Greene, Teen Detainees Win Block on Abortion Ban, Class Cert., Law360, Mar. 30, 2018, https://www.law360.com/articles/1028634.
Maher v. Roe, 432 U.S. 464 (1977).
Matt Stevens, Judge Temporarily Stops U.S. From Blocking Undocumented Teenagers’ Abortions, The New York Times, Mar. 31, 2018, https://www.nytimes.com/2018/03/31/us/abortion-immigrant-teens.html.
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Roe v. Wade, 410 U.S. 113 (1973).
Photo courtesy of Washington Examiner.