The U.S. Supreme Court recently made a decision in Azar v. Garza, a class action lawsuit challenging the Trump administration’s exercise of veto power over unaccompanied immigrant minors’ access to abortion in Office of Refugee Resettlement (ORR) custody. Misleading headlines aside, the June 4 Supreme Court decision did two things: rejected the Trump administration’s bizarre request to sanction American Civil Liberties Union (ACLU) attorneys for allegedly misleading U.S. Department of Justice (DOJ) lawyers about the timing of Jane Doe’s abortion, and vacated a D.C. Circuit ruling on the grounds that the abortion Jane Doe obtained rendered the case moot.
Immediately following the Supreme Court decision, the Court of Appeals rejected the government’s request for a stay of the preliminary injunction pending appeal.
As Rewire.News’ Imani Gandy reported, the ruling and subsequent Court of Appeals decision do not change the larger class action lawsuit or the preliminary injunction, which will continue to block the Trump administration’s policy, enabling unaccompanied immigrant minors in ORR custody to access abortion. “The [Supreme Court’s] decision was disappointing, but not really detrimental to our overall case,” said Brigitte Amiri, the senior staff attorney at the ACLU’s Reproductive Freedom Project currently litigating multiple cases related to ORR. “It doesn’t change our case and it doesn’t affect our preliminary injunction. Jane Doe has already turned 18, so she doesn’t have an individual claim for access to abortion anymore anyways.”
“After the decision came down, I spent the day speaking to reporters and explaining all of this because I thought it was critically important they get this information right,” Amiri further explained to Rewire.News. “There are currently young people in ORR custody—or people who have family members in custody—who may be confused by how this is reported. I want everyone to know that right now, young people in custody are protected and able to access abortion.”
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Oral arguments for Azar v. Garza will begin in September, but in the meantime the federal government may appeal the June 4 Supreme Court decision. On Thursday, Rewire.News spoke with Amiri and Rochelle Garza, who regularly represents unaccompanied immigrant minors and who was Jane Doe’s court-ordered guardian, about the likelihood of an appeal, what permanent relief for migrants in ORR custody might look like, and the retaliation immigration lawyers face under the Trump administration. Here is an edited transcript of that conversation.
Rewire.News: What have your days been like since the Supreme Court decision?
Brigitte Amiri: Monday when we got the decision was a bit of a rollercoaster ride. Tuesday I was still reeling from the aftermath. Now, we’re just waiting to see if there will be an appeal from the denial of the state to the Supreme Court. [The government has], I believe, 14 days to ask for a stay. One of the things [the government has] to show to the Supreme Court is that they will be irreparably harmed by the injunction continuing to be in effect. I think that’s a really hard argument for them to make, period, but extra hard if they delay seeking review. The longer they take on their own delay, the harder it will be for them to prove they are being irreparably harmed and that they need an emergency order now preventing the preliminary injunction from taking effect.
Rewire.News: As the case has played out, the question of whether undocumented immigrants have a constitutional right to abortion has been sidestepped by the federal government. And it seems the Supreme Court didn’t address the constitutionality of ORR’s policy blocking young people from accessing abortion care. Do you have any indication either way on where the government or Court stand on these issues?
BA: The Supreme Court didn’t speak to the constitutionality of the policy at all. It was really just about the mootness question as to Jane Doe’s abortion access claim. The issue of undocumented immigrants’ constitutional rights being the same as those of citizens came up very early on in the case. The government was kind of wishy washy about the position it was going to take until we had oral arguments in the Court of Appeals in the panel arguments about Jane Doe’s specific access. The judge asked, “Are you making the claim that unaccompanied immigrant minors lack the constitutional right to access abortion?” The government was really pushed on this and the government said they were not making that argument. After that, the government was waived for the case from making that argument and cannot make that argument in this case in the future. Now, the Texas attorney general and other attorneys general are in the periphery making that argument, but that is not the federal government’s position.
Rewire.News: Do young citizens in juvenile detention centers have similar issues accessing care or are they blocked too? Is there even a comparable situation? Or is this playing out differently because the group of young people in question are undocumented and in the custody of federal immigration authorities?
BA: Really the only difference is Scott Lloyd, to be blunt about it. This was his policy that was specifically designed to prevent unaccompanied immigrant minors from accessing abortion because of his personal hostility toward abortion and, quite frankly, the population he is supposed to care for. It is unconstitutional in the context of ORR and it would be unconstitutional in the juvenile detention setting for young American citizens. It is inappropriate and unconstitutional whenever the federal government or state prohibits access to abortion. The only restriction the Supreme Court upheld as it relates to restricting minors’ access to abortion is in the context of parental involvement laws. The Supreme Court said states can require parental notification or consent because of the interest in ensuring parental involvement in decisions of minors, but—and it’s a big but—states must allow an alternative avenue for access to abortion if they can’t or don’t want to tell their parent. That’s the judicial bypass. That’s the only difference in terms of minors’ access to abortion and adults’ access to abortion.
Rochelle Garza: I’ve heard of a lot of issues coming from children who are in Child Protective Services custody in Texas experiencing barriers to not just abortion, but the judicial bypass process. I know this is on Jane’s Due Process’ radar and I worry that we’re going to start hearing more about those cases.
Rewire.News: Rochelle, as the Trump administration’s “zero-tolerance” policy at the border plays out and children are torn from their families, what are your biggest concerns as an immigration attorney in Texas?
RG: Right now, there is a lot of confusion as to what’s happening at the border, and things are happening very quickly, with children being put into facilities all over. One of my greater concerns is this lessening of rights that children have in ORR custody and I think that began to erode with Scott Lloyd attacking abortion. There are very large concerns right now when it comes to young people in custody not having access to attorneys or proper medical care.
BA: [New York Civil Liberties Union] has a case against Scott Lloyd and ORR seeking a preliminary injunction to prevent him from indefinitely detaining minors, as he has been doing based on his misunderstanding they might be gang members. He’s made it so that he has to approve every release of a minor who has been in heightened supervision, preventing reunification of families and holding these minors indefinitely because of an unfounded personal belief these teens are violent.
RG: Scott Lloyd thinks he has absolute control over the children [in ORR custody].
Rewire.News: Do you think with the influx of young people in ORR custody there will be more Jane Does?
BA: If our court order operates correctly, we wouldn’t actually necessarily know if more Jane Does emerge because the government is prohibited from interfering with access to abortion. So unlike the other Jane Does who came forward that we represented, we were connected to them because there was an issue, there was an obstruction of access to abortion. But if the court order operates the way it’s supposed to, we may not actually hear of those Janes because they are obtaining access to abortion.
Rewire.News: We know Scott Lloyd has acted unlawfully before. How do we know Scott Lloyd isn’t still attempting to block access to care?
BA: We are doing everything we can to monitor the situation closely, keeping our ear to the ground and staying in touch with advocates around the country. It’s not a fail safe way of ensuring there is no problem, but so far we’ve not heard of Scott Lloyd returning to his old ways and if he did, it would be contempt of court and we would seek an order asking to hold him in contempt.
Rewire.News: It seems that Scott Lloyd is tied to so much of what is affecting young people in ORR custody, but didn’t unaccompanied immigrant minors have trouble accessing care under previous administrations too?
BA: I’m simultaneously litigating another case, the religious shelter case against ORR. We’re in the middle of briefing on this issue now and we’ll have oral arguments in California in August. So, religiously affiliated shelters [that contract with ORR] kick girls out for even requesting an abortion or having had an abortion. That lawsuit was filed in June 2016 under the Obama administration and it was a big problem under Obama. We met with [the administration] numerous times and we said that it is problematic and unconstitutional to give millions of dollars to religiously affiliated shelters and to allow those shelters to use their religious opposition to abortion to kick young people out of the shelter. The Obama administration did not fix the problem, so we sued them.
It’s interesting these two cases against ORR are proceeding simultaneously because now we have the preliminary injunction in [Azar v. Garza], which is a case about blocking abortion in custody entirely. Whether you were in a religious shelter or not, Lloyd was blocking you from having an abortion. Now that we have the no abortion policy blocked, things go back to where they were under the Obama administration, which means if you are in a religiously affiliated shelter, you get kicked out for even asking for an abortion. We need to strike that policy down too.
RG: Speaking from my broader experience representing unaccompanied immigrant children, there were huge issues under Obama when it came to deportation and the growth of the detention system. As Brigitte said, there were also issues related to accessing reproductive health care in ORR, but nothing quite like what we’re seeing now with Scott Lloyd. Under the Trump administration, under Scott Lloyd, they’re using shelters to push back on everything from legal representation to abortion access, they try to deny young people in ORR access to anything they personally think they shouldn’t have access to. In ORR, things are markedly different. We know that kids were detained for long periods of time, so it doesn’t at all surprise me that these issues are worse under this administration.
Rewire.News: While there is an injunction in place and Scott Lloyd cannot legally block abortion access, currently there is no permanent relief for young people in ORR custody. What would permanent relief look like, and would it at all be complicated by state laws?
BA: The permanent relief doesn’t look all that different from what we have now with the injunction. It would just be the end of it and we could be done fighting, which would be really nice. With state law, it’s a little apples and oranges, but it would be a different experience for a minor in California to access abortion than a minor in Texas, and that is a function of respective state laws on abortion. In ORR custody in Texas, the process would look different than it would in California because in Texas a young person would go through the judicial bypass process. Our lawsuit can’t do anything in respect to the restrictive laws of Texas. Everyone within a state’s borders have to abide by those states’ laws on abortion.
Rewire.News: Brigitte, how afraid were you by the possibility that you’d be sanctioned?
BA: When it first happened, it truly felt like a punch in the stomach. My colleagues and I were being accused of acting inappropriately; it was shocking. Once I got past the initial shock of the personal accusation, I became very scared that this is what our government thinks it can do to civil rights lawyers who do their jobs. This is the oppressive regime we’re now living under, and it feels very, very scary and very chilling. I’m fortunate to work with the ACLU, where I’m supported by a large organization. I feel very fortunate that I have the resources to fight something like this. That’s not always going to be the case for advocates who are targeted. Tina, you’ve written about reproductive justice advocates being targeted for deportation. It seems no one is immune to the government’s retaliation.
Rewire.News: What could the government have done to you?
BA: I’m a member of the Supreme Court Bar, so they could have disbarred me. They could have sanctioned me, referred the matter to my state bar in New York, and asked the bar to investigate me. Ultimately, I didn’t think any of those things would actually happen; I didn’t think I’d lose my license to practice law. But even having to think about those possibilities is stressful and scary. Receiving word that I wasn’t going to be sanctioned was a big relief. I worry about a lot of things, including our individual plaintiffs and the horrific ways in which this administration is punishing unaccompanied immigrant children and immigrants in general, so this is one less thing hanging over my head.
RG: I think it was really about trying to send a message and chill other attorneys out there doing their job and fighting for their clients’ civil rights. There shouldn’t be any place for that in our system or in our profession. I’m glad the Supreme Court chose not to touch that or go beyond saying an attorney has a duty to their client and leave it at that. I’ve been dragged through the mud by [the administration] as well, which is terrifying because I’m one person in a two-person law firm. I don’t have the resources or the emotional strength to fight it.
BA: I’ll dispute that last contention. Rochelle has amazing courage and bravery. No one should have to fight these things, but you’re a badass.