After weeks of legal limbo, a federal appeals court today ruled that Jane Doe, an unaccompanied immigrant minor in Office of Refuge Resettlement (ORR) custody, cannot access the abortion care for which she received a judicial waiver.
The court has given Jane Doe until October 31 to secure a sponsor. Once a sponsor is secured, Jane Doe will be released from the custody of Health and Human Services (HHS), which oversees ORR, and she can access abortion care.
Two people have already been rejected as appropriate sponsors for the 17-year-old. By October 31, she will be around 18 weeks pregnant. Abortion is illegal in the state of Texas after 20 weeks.
The government’s counsel during Friday’s proceedings repeatedly refused to take a position on whether undocumented people have constitutional rights. But in its decision, the court stated that “the government has assumed, for purposes of this case … that [Jane Doe] possesses a constitutional right to obtain an abortion in the United States.”
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Several times in Friday’s arguments, the government claimed that refusing to facilitate transportation for Jane Doe’s abortion care does not constitute an undue burden.
If Jane Doe were an adult in an immigrant detention center overseen by Immigration and Customs Enforcement or an undocumented adult in prison for committing a crime, she could have accessed an abortion by now. But because she is a minor in legal custody of ORR—and ORR maintains an interest in “fetal life and child birth”—the teen is being forced to carry an unwanted pregnancy.
When asked by the court to clarify why Jane Doe could access abortion care as an undocumented adult in detention or prison but not as an undocumented minor detained in a shelter, the government’s counsel said the difference is that Jane Doe has the option of “voluntary departure.”
Voluntary departure means that Jane Doe, who fled an abusive home in Central America where her teenage sister was beaten by her parents for being pregnant, could self-deport to her country of origin, where abortion is illegal. The government says that presenting voluntary departure to Jane Doe as her primary option does not constitute an undue burden.
“Jane Doe is in in HHS custody because she is here illegally,” the government’s counsel said during Friday’s arguments. “Otherwise there would be no problem for her to get an abortion in Texas.”
Even if Jane Doe were to choose voluntary departure, she is a 15-week-pregnant undocumented unaccompanied immigrant minor in the United States without authorization. Jane Doe would remain in the custody of immigration authorities until she was deported, leaving her with limited options for accessing abortion care. And accessing an abortion in the United States as an undocumented immigrant is no easy feat, especially not in the state of Texas, which requires patients to be counseled by the doctor providing care.
The government said Friday that another “issue” with facilitating Jane Doe’s abortion—which would have only required permitting the teen to leave with her guardian to attend her appointment—is that HHS and ORR would suffer the undue burden of having to “monitor Jane Doe’s health” and facilitate any follow-up care she may need as a result of “complications.”
Abortion in the first trimester is “ten times safer than child birth,” Dr. Anjani Kolahi, a fellow with Physicians for Reproductive Health, told Rewire. Indeed, abortion care has been proven safer than wisdom tooth removal.
When asked about the additional health care Jane Doe would require if forced to carry the pregnancy and give birth, the government’s counsel said the government “would be happy to provide” that care. Texas has the highest maternity mortality rate in the developed world.
Kolahi said that undocumented immigrants nationwide face “insurmountable barriers” when it comes to accessing abortion care.
There are state anti-abortion laws to consider, but there’s also the issue of cost. Federally qualified health centers are often undocumented immigrants’ only source of health care. But because they are federally funded, the Hyde Amendment dictates that they can’t provide abortion care, forcing undocumented people to seek out a private provider. Transportation is also a problem. In Texas, where clinics are few and far between, accessing abortion care means traveling hundreds of miles. For undocumented immigrants, this means having to go through Border Patrol checkpoints, leading to their detention and deportation.
“As you can see, this idea that Jane Doe can just easily access abortion care [outside of ORR custody] is absurd,” Kolahi said. “They have already forced Jane Doe to cancel two appointments. [ORR] is legally required to care for her and she is legally obligated to the health care she is requesting and they are refusing to take her to a medical facility, or allow her to be taken to a facility. As a doctor, I know she should be seen at a medical facility. This is setting a very bad, strange precedent.”
The Trump administration seems invested in creating this “strange precedent.”
In March 2017, the Trump administration implemented a revised policy “that allows [shelters] to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion,” according to court documents. This directive prevents unaccompanied immigrant minors in their care from obtaining abortions by prohibiting federally funded shelters from facilitating “abortion access to unaccompanied minors in their care without ‘direction and approval’” from ORR Director Scott Lloyd.
Susan Hays, legal director for Jane’s Due Process, an organization providing legal representation to pregnant minors in Texas, told Rewire that Lloyd is “an incredibly troubling figure,” ushering in “anti-choice fanaticism” that is “part Handmaid’s Tale, part Nazi doctor.”
Lloyd has told his staff “the unborn child is a child in our care” and that they were to make medical decisions accordingly. In April, Lloyd instructed Jonathan White, ORR’s deputy director, to ensure that a minor in custody in Arizona get an ultrasound and counseling at Choices Pregnancy Centers, an anti-choice crisis pregnancy center, or fake clinic. Anti-choice fake clinics make up almost all of the counseling centers approved by ORR for minors requesting abortion care. Before becoming ORR director, Lloyd was an attorney for the Catholic charity Knights of Columbus and served on the board of the Front Royal Pregnancy Center, an anti-choice fake clinic. Crisis pregnancy centers are known to mislead or lie to patients about abortion.
In a 2011 piece for the Center for Morality in Public Life, Lloyd wrote that “the defining event in an abortion, as we use the term in our common parlance and in medical settings, is the death of a human being who has not yet been born.”
“I’m not a politician or an appointed official, but I am a doctor and I do know that denying a person access to care should have nothing to do with your personal feelings regarding the care they need to access,” Kolahi said. “Personal feelings do not justify taking away a person’s access to abortion care, and immigration status should never dictate the type of care people have access to.”
If a sponsor is not secured and Jane Doe is not released from custody by October 31, the district court may reorder a temporary restraining order, preliminary injunction, or “other appropriate order,” according to the court. The government or Jane Doe will be able to immediately appeal.