The American Civil Liberties Union is accusing the Trump administration of illegally blocking a 17-year-old Central American immigrant from having an abortion and will urge a federal judge in Washington on Wednesday to clear the way for her and other young immigrants to terminate their pregnancies.
Known as "Jane Doe" in federal court, the teenager is one of thousands of unaccompanied minors who have crossed the border illegally. She is being held in South Texas and has permission from a state judge to have an abortion, but she says federal officials refuse to transport her to a clinic.
“It’s unprecedented, it’s unconstitutional, and it’s also unconscionable,” said Brigitte Amiri, a senior ACLU staff lawyer and attorney for the girl, who filed suit through her court-appointed guardian. “Blocking access to abortion for unaccompanied minors is downright cruel.”
The ACLU alleges that federal employees in Texas went as far as to visit the girl to talk her out of the procedure and took her to a Christian “crisis pregnancy center,” where she allegedly received an ultrasound against her will.
Lawyers are seeking an emergency restraining order preventing the government from interfering with the girl's plan to undergo an abortion and a preliminary injunction to protect others in her situation. The hearing is at noon in U.S. District Court in Washington.
The Department of Health and Human Services, which is responsible for caring for detained unaccompanied minors, said this week that “there is no constitutional right” for an immigrant minor to get an elective abortion while in federal custody. Officials said they are required to care for immigrant children and teens through the program, including an “unborn baby.”
On Tuesday, an HHS official said Scott Lloyd, who directs the agency's Office of Refugee Resettlement, had personally intervened to try to persuade unaccompanied minor girls not to have abortions. The official, who was authorized to comment only as an unnamed spokesman, declined to say whether those girls were blocked from getting the procedure or to comment on Jane Doe's case.
Lloyd's office contracts with shelters to house unaccompanied minors until they can be reunited with family members.
“When there’s a child in the program who is pregnant, he has been reaching out to her and trying to help as much as possible with life-affirming options,” the spokesman said. “He by law has custody of these children, and just like a foster parent, he knows that that’s a lot of responsibility and he is going to make choices that he thinks are best for both the mother and the child.”
The spokesman said the Office of Refugee Resettlement is reviewing its medical policy for the minors, with plans to “clarify” issues related to abortion in the next few weeks. Court records show that on March 30, Lloyd said in an email that federally funded shelters “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
There are about 5,000 unaccompanied minors in the office’s custody.
Jane Doe’s case has drawn the attention of immigration hard-liners and antiabortion groups, as well as abortion rights advocates.
In a brief supporting HHS, Texas Attorney General Ken Paxton (R) said it would be breaking new ground to declare that undocumented immigrants with "no substantial ties" to the United States have a constitutional right to "abortion on demand."
Siding with the ACLU would “effectively announce that anyone on Earth has any number of constitutional rights simply by being apprehended at the United States border,” he wrote.
The ACLU argues that the Trump administration's position violates Roe v. Wade, the 1973 Supreme Court ruling that grants women the right to an abortion. In addition to blocking abortions, lawyers say, the administration is also illegally forcing unaccompanied minors to tell their parents or sponsors about their pregnancies or to visit antiabortion crisis pregnancy centers.
"They are holding her hostage to ensure that she does not have an abortion, but rather continues the pregnancy, and has a baby, against her will," the ACLU said in a legal brief urging U.S. District Judge Tanya S. Chutkan to rule in their favor. "Entirely shutting off a person's access to abortion services is the greatest conceivable 'undue burden' on a person's constitutional right to an abortion — it prohibits her from exercising her rights at all."
A federal magistrate judge in California agreed with the ACLU when lawyers tried to add the girl to a related case there. The judge declined, because the girl is in Texas, but said she would have ruled in their favor.
“The government may not want to facilitate abortion, but it cannot block it,” U.S. Magistrate Judge Laurel Beeler ruled on Oct. 11.
The teenager is more than 14 weeks pregnant. Texas law bars terminating pregnancies after 20 weeks. The House recently passed similar legislation that President Trump endorsed, though it is unlikely to pass the Senate.
Robert Carey, director of the Office of Refugee Resettlement under President Barack Obama from 2015 until Trump took office, said it would be unusual for a person in his position to personally approach a minor in his custody.
“I would not have seen that as appropriate,” Carey said. “I was involved in weighing in on policy decisions but would not have intervened in individual cases like this.”
During his tenure, the office was forbidden from paying for abortions, except in cases of rape, incest or a threat to the woman’s life, Carey said. The office did, however, pick up the cost of transporting girls to abortion clinics as a matter of policy. Carey said some pregnant minors may have suffered sexual abuse in their home country or during the trek north to cross the border.
Adult federal detainees also have access to abortions, according to federal court records.
Two members of Congress wrote to acting HHS secretary Eric Hargan this week about the case. “It is troubling to consider that this Administration is imposing its ideological agenda on girls,” wrote Rep. Beto O’Rourke (D-Tex.) and Rep. Zoe Lofgren (D-Calif.). “To force a girl to carry an unwanted pregnancy to term against her expressed will . . . is wrong and unlawful.”