On Wednesday, government lawyers will stand before the D.C. Circuit Court of Appeals and argue that the government has the right to force undocumented pregnant minors in federal custody to carry unwanted pregnancies to term.
The American Civil Liberties Union (ACLU) filed the lawsuit last year against the Office of Refugee Resettlement (ORR) on behalf of Jane Doe, an unaccompanied immigrant minor whom the government tried to block from obtaining an abortion. After a federal district court ordered the government to permit Doe to proceed with her abortion, the ACLU learned that there were other young women in federal custody also being blocked from obtaining abortion care.
This was thanks to a policy issued in March 2017 by ORR Director Scott Lloyd—who is virulently anti-choice—requiring that he personally sign off on any action that “facilitates” an abortion; he decided to vest in himself the power to veto pregnant minors’ decisions to terminate their pregnancies no matter the circumstances. Not “facilitating” an abortion, in this case, also means withholding information about abortion, pressuring minors to continue their pregnancies, and banning abortion entirely.
The ACLU continued the case on these pregnant minors’ behalf. The case, Azar v. Garza, was certified as a class action in March 2018, and Lloyd’s policy has been blocked across the board as the case proceeds.
When Doe filed suit, she had already obtained a judicial bypass of Texas’s parental notification and consent requirement. She simply needed ORR to let her leave federal custody to go to her doctor’s appointment.
But she couldn’t. In Jane Doe’s own words before the October 2017 decision, “they have not allowed me to leave to get an abortion.” Ultimately, she had to go to federal court and obtain a temporary restraining order—a federal court had to order the government to, essentially, get out of the way and let Doe get her abortion. The same has been true for other minors in custody.
According to the government’s lawyers, this policy is a sound one: The government cannot be forced to facilitate abortions.
But lawyers for plaintiffs—known in this case as the “Janes”—point out that the government isn’t being forced to facilitate anything. The government is not required to pay for the abortion. The government isn’t even required to transport the pregnant patient to the abortion provider. Asking its agents to stop interfering is not facilitation. That’s just getting the fuck out of the way.
But the government won’t do it.
What’s more, the government wants to break up the class of plaintiffs and force them to file their own individual lawsuits. So even if a pregnant minor in ORR custody complies with all state judicial bypass laws (which in and of themselves are problematic because they essentially put teenagers on trial where they are cross-examined—often in a hostile fashion—about their reasons for choosing abortion), the federal government believes that undocumented pregnant minors should be forced to clear an additional hurdle that no other pregnant minor has to clear.
Absent the injunction blocking the government “from interfering with or obstructing any class member’s access to … an abortion,” which the district court issued in Jane Doe’s case—and which applies nationwide—every pregnant minor in ORR custody would be forced to file emergency requests for temporary restraining orders in order to obtain abortion care.
Class actions are meant to avoid these sorts of legal messes by allowing plaintiffs with similar claims to band together. As plaintiffs argue in their briefing filed with the court, class actions were designed to save courts “from reviewing near-identical emergency claims for relief on a fire-drill basis.” They also mean that plaintiffs aren’t subject to varying judgments or the repeated hassle of finding lawyers.
Lawyers for the government disagree. Forced to concede, according to court documents, that approximately 30 pregnant undocumented minors enter their care and custody on a monthly basis, the government has tried to shrink the parameters of the class to exclude pregnant minors who do not seek abortion. That’s largely what Wednesday’s oral arguments are about: whether the case is properly a class action, and whether the injunction should remain in place.
In other words, the government is arguing that the number of pregnant undocumented minors in their custody who want to get an abortion is so small that they can file their own individual lawsuits and the court can handle each case separately.
But lawyers for plaintiffs view the case more broadly. The class is not limited to undocumented pregnant minors who want abortions, they claim; it includes all pregnant minors who are subject to ORR’s uniform policy.
“Even those who do not request abortions are harmed by having non-biased information withheld from them, and by being chilled from requesting the care in the first instance,” lawyers for plaintiffs have argued in briefs filed with the court.
It’s hard not to agree.
ORR has instituted an unlawful total abortion ban, even though the Supreme Court has said time and again—in Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt—that the government cannot ban pre-viability abortions or unduly burden the right to an abortion.
Of course, Lloyd’s ORR won’t admit that outright. In order to distract from its total abortion ban, the government will likely feign concern during Wednesday’s oral argument for the undocumented pregnant minors. Its lawyers certainly lay it on pretty thick in their court filings: “ORR must assume a de facto parent role for these pregnant minors, who often lack the maturity to independently make such crucial life decisions … It is in the public interest to allow ORR to fulfill that obligation, including by assisting these minors with navigating complex moral, mental, and physical issues they face.”
Setting aside that it is absurd that ORR assumes that pregnant minors are too immature to make a decision about whether to get an abortion but are mature enough to become a parent, ORR’s policy is not to assist or counsel minors in deciding whether to terminate a pregnancy. ORR’s policy bans minors from obtaining information about abortion and bans minors from obtaining abortion care. ORR’s policy leads to pregnant minors being forced to visit crisis pregnancy centers and be pressured into choosing to carry the pregnancy to term. It also, in at least one case, meant that the agency forced one plaintiff to tell her parents about her plans to obtain an abortion. According to court documents, the plaintiff’s parents threatened physical violence if she went through with the abortion, which sank her into a suicidal depression.
ORR claims to be “de facto” parents to these pregnant minors, but it is claiming more rights than an actual parent would have. If the law does not give parents the power to veto their minor children’s decisions regarding whether to have an abortion, it certainly does not give ORR that authority. The judicial bypass process serves that parental role, and ORR does not have the authority to undercut it—or at least it shouldn’t. The government cannot stop a pregnant minor from entering into a bypass proceeding any more than a parent can.
One argument government lawyers won’t make out loud during oral arguments—but which will nevertheless undergird the proceedings—is that they don’t think that undocumented immigrant minors have a constitutional right to abortion, even if that minor has complied with state law.
The government has said that it is not taking a position on whether immigrants have a constitutional right to abortion. But from its briefing and the way they talk about the Janes—suggesting that they would cause an influx of abortion tourists seeking abortion on demand—its position is pretty clear. It doesn’t believe that pregnant minors have a constitutional right to abortion, and it doesn’t plan to respect those rights unless a court forces them to.