Undocumented Migrant’s Fight to Obtain an Abortion By Daniel Tagliarina and Allyson Yankle
A teen known only as “Jane Doe” has found herself at the center of a recent legal dispute. Jane Doe, an alias, is a 17-year old undocumented migrant. She was stopped at the border in Texas and taken into custody as an unaccompanied, undocumented minor. The story gained attention after the teen was informed that she was nine weeks pregnant following a routine medical examination conducted after she was detained. Upon finding out, she indicated that she wanted to have an abortion. The Trump administration sought to block her attempts.
The teen was being detained at a shelter for undocumented migrants. With the help of her court-appointed guardian, she was able to go to a court and obtain the judicial bypass necessary for underage minors to obtain an abortion in Texas without parental consent. Despite having judicial approval to obtain a legal abortion, facility at the staff where she was detained would not let her leave the facility to obtain an abortion.
The clock was ticking as Texas law prevents abortions past 20-weeks, unless it is a medical emergency. The staff purportedly was acting on direct orders from the heads of the Administration for Children and Families (ACF) and the Office of Refugee Resettlement (ORR), both of which are parts of the Department of Health and Human Services (DHS).
Not only was the teen denied access to an abortion by the detention facility staff, but court proceedings also allege that the staff took the teen, against her will, to religiously-affiliated, anti-abortion counseling. During this counseling a sonogram was performed, again against the teen’s expressed wishes.
With the help of the ACLU, the teen sought an emergency temporary restraining order to require the staff to stop obstructing her from obtaining an abortion, for which a judge had already granted permission. On October 18, Federal District Court Judge Chutkan granted the teen the temporary restraining order. Texas law requires a 24-hour waiting period after mandatory counseling regarding an abortion procedure. The teen obtained this counseling on October 19.
Texas, joined by Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina filed a brief in the case supporting the federal government’s actions. Also on October 19, the Federal Court of Appeals for the D.C. Circuit stayed the district court’s grant of a temporary restraining order. This, again, meant the teen could not go through with the procedure. On October 20, the circuit court heard arguments and released a 2-1 ruling that while the teen has a right to an abortion, HHS policy requires that the teen obtain and be released to the care of a sponsor before she may obtain the desired medical procedure. Texas was given until October 31 to comply.
On October 22, the teen petitioned to have the case reheard, en banc (by the full panel of circuit court judges) by the DC Court of Appeals. This time, the District of Columbia and the States of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington joined in support of the teen.
On October 24, the Court of Appeals vacated the October 20th ruling by the three-judge panel, which effectively sent the case back to the District Court. It is worth mentioning that two sets of dissents emerged from the en banc review. The first, speaking for four judges, argued that the initial appellate court ruling did not create an undue burden on the teen’s right to an abortion. The second dissent, speaking for one of the four dissenters, argued that undocumented migrants either have no, or at least next to no, right to an abortion.
After the Court of Appeals ruling, the teen returned to District Court Judge Chutkan. Judge Chutkan reissued a modified version of her restraining order. The federal government did not immediately file for an appeal. Having previously had the legally required counseling that starts the 24-hour waiting period on the 19th, the teen was able to obtain an abortion from the doctor that provided her with the legally mandated counseling on October 25th. She was approximately 16 weeks along at the time of her abortion, still under the 20 week window. Private funds were used to pay for the procedure.
While the immediate case has ended with the teen’s abortion, the broader legal fight is not over. There is a wider case challenging whether the government can do the same thing to other pregnant undocumented migrants in their custody. This case is pending in the federal district court in D.C. Moreover, the question of what rights do undocumented migrants have to abortions and other medical procedures has not been conclusively answered. The teen, “Jane Doe,” is not the only one to experience intransigence when seeking an abortion.
The shelter where she was being detained was told that they would lose funding if Jane Doe were able to access to an abortion. Court documents filed by the ACLU also allege that the director of the ORR, E. Scott Lloyd, has required other undocumented migrants to go to religiously-affiliated anti-abortion crisis pregnancy centers, as Jane Doe was also forced to do. This point, involving Lloyd’s direct involvement in trying to personally convince pregnant undocumented migrants not to have an abortion has been confirmed by The Washington Post.
The ACLU also alleges that one teen was forced to go to an emergency room after taking the first medication of a medically-induced abortion to see if the hospital could still preserve the life of the fetus before the teen was allowed to complete her medical abortion. These are issues that will continue to push this legal challenge forward.
Furthermore, the federal government’s stance has been that the government is unwilling to “facilitate” abortion for unaccompanied minors. This facilitation applies even when no government funds are being requested—not that they could be used under current law—to provide an abortion. HHS claims that the government is trying to “promote child birth and fetal life.” It is this stance that lead to the altercations involved in Jane Doe’s legal battles.
HHS changed to this stance in March 2017, moving away from previous policies of providing necessary medical care, including that requested by detainees. These previous HHS policies were consistent with the Prison Rape Elimination Act and the Violence Against Women Reauthorization Act of 2013, which aimed to provide minors that had suffered sexual abuse with medical treatment, emergency contraception, and pertinent, medically-accurate information about all lawful pregnancy-related medical services.
Finally, the Justice Department (DOJ) is now pursuing charges against the ACLU for misconduct in the Jane Doe case. The DOJ filed a petition with the Supreme Court arguing for the Court to vacate the judgment from the D.C. Circuit and consider possible disciplinary action against the ACLU attorneys for misleading the government. Part of this decision to appeal to the Supreme Court is because of the goals of the DOJ. The D.C. Circuit’s decision sets a precedent that the Trump Administration disagrees with and prevent future lawsuits using similar claims to Jane Doe.
This is important considering that the ACLU is now continuing its lawsuit and is asking for class certification to ensure future unaccompanied minors could receive abortions without similar government interference. More unusual is the DOJ asking the Supreme Court to consider the issue of misconduct by ACLU attorneys, which could lead to punishment by either the Supreme Court or the state bar associations. The ACLU dismissed these claims as baseless. They argue that their attorneys had no legal obligation to tell the government about Jane Doe’s schedule and that the government did not appeal in a timely manner.
What this case brings to the foreground is a confluence of the Trump administration’s anti-immigration policies, along with its Christian-right-influenced anti-abortion efforts. Neither immigration nor abortion are settled topics, and thus the central conflict in this case is not going away anytime soon. This is likely just the start of many legal battles to come over access to abortion—and not just for undocumented migrants—and what rights pertain to those who are undocumented in a much wider variety of areas.
Daniel Tagliarina is Assistant Professor of Government and Politics at Utica College.
Allyson Yankle is Visiting Assistant Professor of Political Science at Lycoming College.
