Thousands of unaccompanied, undocumented immigrant minors are currently in the custody of the United States federal government, which is legally obligated to provide them with health care. Some are pregnant and wish to obtain an abortion. In March, however, the Office of Refugee Resettlement announced that federally funded shelters are barred from taking “any action that facilitates” abortion for these unaccompanied minors without “direction and approval” from ORR Director Scott Lloyd. And according to the ACLU, Lloyd, a Trump nominee, is now prohibiting minors from accessing abortion care—and instead sending them to “crisis pregnancy centers” that urge them not to terminate their pregnancies.
The ACLU is suing on behalf of one such woman (“Jane Doe”) and all others similarly situated—possibly dozens or even hundreds of women, the ACLU says. Its motion for an injunction against the new policy argues that the Trump administration is violating Doe’s constitutional rights.
Doe came to the United States without her parents at age 17 and was taken into federal custody, then placed at a shelter in Texas. (Doe’s lawyers aren’t saying where she came from in order to protect her anonymity.) She arrived pregnant and requested an abortion. Her shelter, which gets its money from the federal government, refused, since Lloyd had decreed that “grantees should not be supporting abortion services … only pregnancy services and life-affirming options counseling.”
The shelter then took Doe to an anti-abortion crisis pregnancy center, where she was compelled to undergo an ultrasound and forced to listen as counselors tried to talk her out of an abortion. Doe did not change her mind, but she faced another roadblock: In Texas, a minor cannot terminate her pregnancy without the consent of her parents, or the approval of a judge. With the help of a court-appointed guardian and guardian ad litems tasked with investigating the best interests of a child, Doe received the necessary judicial bypass. She scheduled a counseling appointment at a real health care center, which Texas requires at least 24 hours before a women receives an abortion. But she alleges that her shelter refused to let her attend the appointment and informed her that she still could not terminate her pregnancy. A staff member then called Doe’s mother and told her that Doe was pregnant. As of this writing, the shelter continues to prevent her from obtaining the abortion.
This is not the first time that the Trump administration has intervened in an immigrant minor’s efforts to terminate her pregnancy after receiving judicial assent. The ACLU alleges that in March, a different unaccompanied minor at a federally funded Texas shelter obtained judicial bypass and state-mandated counseling. She requested a medical abortion and took her first pill, a dose of mifepristone, which halts the pregnancy. Two days later, she was supposed to take her second pill, a dose of misoprostol, which expels the fetus.*
But before she could take this second dose, ORR intervened and forced her to go to an emergency room “to determine the health status of [her] and her unborn child.” The acting director of ORR at the time, Ken Tota, decreed that “if steps can be taken to preserve the life of … her unborn child, those steps should be taken.” Eventually ORR allowed the woman to take her second dose and complete the abortion. (Tota is not just a Trump guy: He briefly served as acting ORR director in 2006, 2015, and 2017. The Obama administration never stopped unaccompanied minors from obtaining abortions, though the ORR has long given federal funds to religious shelters that expel women who ask for an abortion.)
The Trump administration has taken a keen interest in the pregnancy status of unaccompanied immigrant minors at federally funded shelters. According to the ACLU, Lloyd, the current ORR director, has personally called pregnant minors in an attempt to talk them out of terminating their pregnancies. He has also formalized the agency’s anti-abortion policies through various regulations. Shelters are, for instance, proscribed from taking “any steps that facilitate future [abortion] procedures,” including “scheduling appointments, transportation, or other arrangement,” without Lloyd’s “written authorization”—which he consistently refuses to provide. Under the current policy, minors who want to get an abortion must also be taken to a crisis pregnancy center to be “counseled” out of their decision.
In its motion to block the government from denying Doe abortion access, the ACLU claims that these policies violate immigrant minors’ constitutional right to access abortion care. The Trump administration obviously disagrees, as do a handful of states that have filed an amicus brief supporting the government’s refusal to let these women get abortions. Penned by the Texas Attorney General’s Office and joined by Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina, this brief argues that these women do not have the right to an abortion because they are “unlawfully-present aliens” who lack “developed substantial connections with this country.”
It seems unlikely that the federal courts will agree with Texas and the Trump administration that women can be denied their constitutional right to an abortion because of their alien status. No court, let alone the Supreme Court, has ever held that undocumented women lack abortion rights. This argument certainly finds no purchase in Planned Parenthood v. Casey, in which the Supreme Court declared that the right to an abortion is “central to the liberty protected by” the Due Process Clause of the 14th Amendment. That clause speaks of “person[s],” not citizens, and the court has never said that an immigrant living in the United States may be deprived of her constitutionally protected liberty to terminate her pregnancy because she is undocumented.
That might change in the near future. Texas’ amicus brief is co-authored by Jeff Mateer, the state’s first assistant attorney general. Mateer has said that transgender children are part of “Satan’s plan” and described same-sex marriage as “disgusting” “debauchery.” Trump has nominated him to a federal district court in Texas. He is one of many extreme anti-abortion, anti-LGBTQ judges whom Trump is elevating to the federal judiciary. By the end of his term, Trump will have placed hundreds of judges, many with similar views, on the federal bench to serve lifetime appointments.
*Correction, Oct. 11, 2017: This post originally misstated the second drug in a medical abortion. It is misoprostol, not mifepristone.