While Jane Doe, the unaccompanied immigrant minor “held hostage” by the Office of Refugee Resettlement (ORR) because she wanted an abortion, was eventually able to access care on October 25, the legal battle surrounding ORR’s anti-choice policy is ramping up.
The Trump administration implemented a revised policy in March 2017 “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 abortion care by prohibiting federally funded shelters from taking “’any action that facilitates’ abortion access to unaccompanied minors in their care without ‘direction and approval’” from ORR Director Scott Lloyd.
Lloyd told the Christian Broadcasting Network on October 30 that ORR’s policy was “under review.” But Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union’s (ACLU) Reproductive Freedom Project, told Rewire there is “no evidence in court proceedings that the policy is under review in any way.”
“People may think we got this victory for Jane Doe and that everything is great and OK now,” Amiri said. “Yes, Jane Doe was able to get the abortion she had the constitutional right to access, but it’s important to understand that the policy she was subjected to is still in place, and it will be in place until the court allows us to proceed as a class action and gives us a preliminary injunction as a class to prevent the federal government from imposing the policy on other girls going forward. Make no mistake: This policy still exists and is still being enforced.”
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The ACLU filed a brief this week to proceed with its class action suit on behalf of unaccompanied immigrant minors in ORR custody being blocked from accessing abortion care, like Jane Doe. The ACLU is asking that Jane Doe be the class representative.
The federal government, which has taken unusual steps surrounding the case—including seeking to penalize the attorneys working on Jane Doe’s behalf—says that Jane Doe is an inappropriate class representative because she was eventually able to access abortion care.
Meanwhile, the Department of Justice (DOJ) is fighting for the ability to share information related to Jane Doe’s abortion with her potential sponsors, citing the First Amendment.
Referring to its own policy on information sharing, ORR says that Section 8.101 of the agency’s policies and procedures “in no way prevents ORR from using and disclosing a minor’s information as ORR carries out its custodial duties on the minor’s behalf, including information the minor’s medical care providers and potential sponsors regarding important and relevant personal and medical facts.”
Jane Doe has now been in ORR custody for months and has had multiple sponsors denied by the agency. Amiri told Rewire she doesn’t know the exact reason the teen is still in custody. A federal appeals court on October 20 gave the teen until October 31 to secure a sponsor so that she could access abortion care, and the federal government said it could find Jane Doe a sponsor by that date. But as of November 30, Jane Doe is still without a sponsor. This means that had Jane Doe’s attorneys not continued to fight for her to access care sooner than the October 31 deadline, she would have passed the 20-week mark and been forced to carry an unwanted pregnancy.
ORR operates within the Department of Health and Human Services (HHS), which contracts with local shelters to care for unaccompanied immigrant minors. Amiri said that young people on average spend 34 days detained in these shelters before being released to sponsors in the United States. But the length of detainment can vary for a number of reasons, including the nationwide backlog on adjudicating immigration cases and the lengthy nature of the asylum process. But there may be more nefarious reasons at play.
Advocates say there is reason to believe ORR is dragging its feet trying to find sponsors for unaccompanied immigrant minors so they can be transferred to Immigration and Customs Enforcement (ICE) custody and placed in detention once they turn 18. In Jane Doe’s case, ORR’s inaction may be retaliatory.
Susan Hays, legal director for Jane’s Due Process, an organization providing legal representation to pregnant minors in Texas, told Rewire that she suspects Jane Doe’s sponsorship opportunities have been “sabotaged.”
“They want to tell any potential sponsor she’s had an abortion, that is what the federal government is fighting for. And let’s say a potential sponsor [for Jane Doe] is a beloved family member who is against abortion and they would reject her if they knew—that’s the risk [the federal government] wants Jane Doe to run. It is absolutely retaliation,” Hays said.
According to court documents, the federal government has taken great pains to inform the parents of unaccompanied immigrant minors in ORR custody that their child is seeking abortion care, even when these young people have received a judicial bypass and their parents remain in their country of origin. The federal government says there may be medical reasons for telling a potential sponsor that Jane Doe has had an abortion procedure. The fallacy behind that, Hays said, is that having an abortion doesn’t affect one’s health, despite a sustained anti-choice propaganda campaign stating otherwise.
Anti-Choice Extremism in the Immigration System
The myth the federal government is using to justify the violation of Jane Doe’s right to privacy can be traced to Lloyd, an anti-choice radical who has emerged as a staunch opponent of reproductive rights in an administration full of similar ideologues. Nothing in his background indicates Lloyd is qualified or equipped to lead ORR or to “counsel” pregnant people in ORR custody against seeking abortion care, which he admitted to doing when speaking to the Christian Broadcasting Network.
Immigration advocates see Lloyd as an ideological pick by the Trump administration as it ushers “anti-choice fanaticism” into the immigration system. Lloyd’s personal beliefs mirror those of anti-choice extremists and men’s rights activists, as evidenced by his published writings. Emails recently released by the ACLU as part of court proceedings reveal how deeply entrenched anti-choice extremism has become within ORR.
One emails says a shelter must confirm a minor will receive anti-abortion counseling as a condition of her release. In another email, HHS officials are informed that shelters are required to alert ORR before doing anything to facilitate an abortion. A memo from Lloyd reveals that another teen received a judicial bypass to obtain abortion care, but her shelter was instructed to hinder her from moving forward. It remains unknown if the minor was able to access the medical procedure.
Lloyd has a well-documented history with so-called crisis pregnancy centers (CPCs), or fake clinics, which provide people with false information to dissuade them from seeking abortion care. Lloyd instructed ORR Deputy Director Jonathan White via email to ensure a minor in custody in Arizona get an ultrasound and counseling at Choices Pregnancy Centers, an anti-choice fake clinic. These clinics comprise almost all of the approved counseling centers listed by ORR for minors requesting abortion care. An investigation by Reveal found that this list came from the anti-abortion advocacy group Heartbeat International, whose mission is “to make abortion unwanted today and unthinkable for future generations.”
Hays told Rewire she is worried that young people in ORR custody who want abortion care may not realize they are being funneled into anti-choice fake clinics. They may be too afraid to voice their desire to have an abortion, given that so many come from countries where abortion is criminalized.
Government documents indicate Lloyd “receives, or for some time this year received, weekly updates concerning each pregnant [unaccompanied child]’s location, the circumstances of her pregnancy, her gestational age, and whether she requested information regarding abortion,” according to the brief filed by the ACLU. Amiri, who has worked on issues related to ORR since 2008, said she has “never seen anything like this.”
Amiri told Rewire that Lloyd is “literally inserting himself” into the patient-provider relationship, forcing girls to not only obtain permission from the federal government before they access abortion care, but to consult the federal government about every aspect of their pregnancy. Hays said her overarching concern is that teens in custody will be forced to carry unwanted pregnancies and the “world may never know.”
There were around 726 pregnant unaccompanied minors in ORR custody in 2014, 450 in 2015, and 682 in 2016, according to court filings by the ACLU. A court filing filling from the federal government revealed that there were 43 unaccompanied immigrant minors in ORR custody as of October 16, 2017.
Hays said ORR officials put “their boot down on shelter’s necks,” when they implemented the new anti-choice policy in March. What she means is that shelters depending on contracts with the agency were faced with a choice: Help a young person get an abortion and risk getting funding removed, making it impossible to care for any other immigrant minors. Or toe the line and prevent a young refugee from getting the abortion care she wants. Hays said it’s easy to see “who got sacrificed.”
“It is the work of a bully and a coward to pick on the most vulnerable demographic you can imagine: pregnant undocumented refugees,” Hays said. “Scott Lloyd is fixated on the reproductive capacity of adolescent refugees to the point of being creepy. The fact that Scott Lloyd is flying across the country, presumably on the taxpayer’s dime, to sit down with a teen girl he’s never met and talk to her about her reproductive status is so inappropriate it’s mind boggling.”