‘Anti-Choice Fanaticism’ in the U.S. Immigration System: The Real Reason Jane Doe’s Abortion Request Is Being Denied

"This case isn’t the only one—nationally, the federal government is obstructing young immigrant women’s access to abortion. It’s blatantly unconstitutional, not to mention unconscionable.”

Jane Doe, nearing the 20-week mark of her pregnancy, may soon be unable to access an abortion at all.  Eric Gay-Pool/Getty Images

Read more of our coverage of Jane Doe’s case here.

On Friday, the American Civil Liberties Union (ACLU) filed a second emergency action on behalf of Jane Doe, an unaccompanied immigrant minor being “held hostage” by the Office of Refugee Resettlement (ORR), after a district court on Wednesday denied a request for a temporary restraining order that would have allowed the teen to access an abortion.

As Rewire reported, ORR, the federal agency overseeing migrant youth in the United States after crossing the U.S.-Mexico border alone, has repeatedly stripped the teen of her right to access abortion care by preventing her from going to the clinic.

A Texas judge granted the teen a judicial bypass, allowing her to obtain an abortion without receiving consent from her parents. However, the 17-year-old had to cancel two appointments because ORR officials refused her transportation to the medical facility and refused to allow her to leave the shelter with her guardian for the purpose of obtaining an abortion. Under the law, ORR must provide transportation to minors when they need to go to court or see a doctor.

The ACLU’s Reproductive Freedom Project, which sought the temporary restraining order on Jane Doe’s behalf, called the Wednesday ruling a “serious disappointment.”

“The denial of abortion care and basic human rights by this Administration will not go unanswered: the ACLU will continue to pursue all avenues to get justice for Jane Doe and young women like her,” a statement from the organization read.

The teenager’s case highlights the difficulties of accessing abortion care in Texas—where few clinics remain, mandatory counseling is required by the doctor who will perform the abortion, and minors must either obtain parental consent or a court waiver—and, importantly, what advocates refer to as a “sea change” under the Trump administration.

“The Trump administration’s action is shocking—a young woman is essentially being held hostage and forced by federal officials to continue a pregnancy against her will,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. “And this case isn’t the only one—nationally, the federal government is obstructing young immigrant women’s access to abortion. It’s blatantly unconstitutional, not to mention unconscionable.”

Historical Context

While pregnant people in the immigration system have long-encountered barriers to accessing health care, advocates say Jane Doe’s case is a harbinger of the “anti-choice fanaticism” working its way into the immigration system since Trump’s presidential inauguration.

In response to the September 11, 2001 attacks on the United States, then-President George W. Bush signed into law a sweeping Homeland Security Act, which restructured the U.S. immigration system, reconfiguring the Immigration and Naturalization Service and creating the Department of Homeland Security (DHS). As part of the law, ORR began caring for immigrant and refugee minors under the Department of Health and Human Services.

Susan Hays, legal director for Jane’s Due Process, an organization that provides legal representation to pregnant minors in Texas, including 17-year-old Jane Doe, told Rewire that the reshuffling of immigration agencies under Bush is part of the reason Jane Doe can’t access abortion. Under his administration, the rights and reproductive autonomy of minors held in shelters were handed off to different parties.

“Under Bush, social workers working with minors [in ORR shelters] could make legal decisions because the shelters had legal custody of the minors. But after two social workers helped an unaccompanied immigrant minor obtain an abortion, it really upset the Catholic-run shelter where they were employed and where the child was housed,” Hays said. “In response, Bush changed who has custody of minors.”

Now, Hays added, “ORR has legal custody and the shelter has physical custody, so shelter workers can’t consent to things like abortion. It’s made everything much harder. [So] we have to go to court.”

The legal director told Rewire it has been her experience that shelter workers where Jane Doe is housed “are horrified” by what is happening to her. But not all shelter workers may feel empathy toward Doe. The federal government grants millions of dollars each year to religiously affiliated organizations that refuse to allow young women access to abortion.

An “added layer,” Hays says, is that a bulk of these young women are pregnant as a result of rape that occurred in their country of origin or on their journey to the United States. Brigitte Amiri, who is working on Jane Doe’s case on behalf of the ACLU, told Rewire that she’s seen estimates as high as 60 percent for the number of minors raped en route.

In June 2016, the ACLU filed a lawsuit against the federal government for funding organizations that provide care, including access to medical care, to unaccompanied immigrant minors because the government allows these organizations “to refuse on religious grounds to follow the law that requires them to provide these young people with access to contraception and abortion, even if the minor has been raped,” the ACLU reported. Last week, the ACLU attempted to add Jane Doe to the existing lawsuit, but “a judge ruled that although the government had no justification for blocking the abortion, Doe’s case needed to be filed in a separate suit in a different court,” according to the ACLU.

Who is being granted millions of dollars to deny minors access to health care? These are organizations like the United States Conference of Catholic Bishops, which has been awarded upwards of $10 million to care for immigrant minors, despite the religious institution’s refusal to allow young people to access abortion services.

The government is failing unaccompanied immigrant minors, explained Amiri.

“The federal government has a legal obligation to provide day-to-day care for these minors, including shelter, clothes, food, and medical care. The federal government has been allowing religiously affiliated entities to impose their religious opposition to reproductive health care on unaccompanied immigrant minors in their care. There have been multiple stories of young women getting kicked out of these religiously affiliated shelters just for requesting an abortion after having been raped,” Amiri said.

“Part Handmaid’s Tale, Part Nazi Doctor”

Under President Donald Trump, conditions for pregnant people in ORR custody have only worsened.

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 explicitly prevents unaccompanied immigrant minors in their care from obtaining abortions by prohibiting all 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. 

In an email from then-ORR director Kenneth Tota, obtained by the ACLU and included in court documents, Tota wrote that “grantees should not conduct [abortion] procedures, or take any steps that facilitate future [abortion] procedures such as scheduling appointments, transportation, or other arrangements without signed written authorization from the ORR Director.” Similar sentiments have been made by Trump appointee Lloyd, who wrote that “[g]rantees should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming options counseling.”
Tota’s memo was spurred by news that another minor at a contracted shelter had begun a medically induced abortion the day before. In his letter, Tota directed office officials to attempt to save the pregnancy.
Hays told Rewire this involved blocking the teen from taking the second pill associated with the abortion, transferring her to an emergency room, and forcing her to undergo a gynecological exam to see if the pregnancy was still viable.

The girl eventually received the second pill, but after her ordeal, an email from the ORR director said that “effective immediately,” shelter operators must send word whenever a girl expresses interest in ending her pregnancy. On March 14, the new Trump-appointed ORR director, Lloyd, wrote his staff, “Often these girls start to regret abortion, and if this comes up, we need to connect her with resources for psychological and/or religious counseling.”

The notion that the majority of patients will regret their abortion is a common refrain among the anti-choice movement, and one that is not based on scientific research.

Hays sees Lloyd as “an incredibly troubling figure,” ushering in “anti-choice fanaticism” that is “part Handmaid’s Tale, part Nazi doctor.”

“They’re treating immigrant girls as their breeding stock. Can you imagine fleeing violence in your country, walking across the entirety of Mexico, getting raped, and then having this white man in a suit show up and try to tell you he knows what’s best for you?” Hays said. “Did I mention that we have multiple instances in which Scott Lloyd is using taxpayer money, using the power granted to him by the federal government, to personally fly to Texas and ‘counsel’ minors about their pregnancies? He is trying to impose his religious beliefs on pregnant immigrants, a bulk of whom are pregnant as a result of rape. In all of my years doing this work, I have never heard of such disgusting overreach. This is beyond the pale of anything the government has ever tried to do as it relates to abortion and immigrants.”

In another email, Lloyd told his staff “the unborn child is a child in our care,” implying they were to make medical decisions accordingly. The following month, in April, Lloyd instructed ORR deputy director, Jonathan White, to ensure that another minor in custody, this time in Arizona, get an ultrasound and counseling at Choices Pregnancy Centers, a crisis pregnancy center, which comprise almost all of the approved counseling centers listed by the ORR when minors are requesting abortion care.

None of this is a surprise if you take a look at Lloyd’s resume. 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, itself a crisis pregnancy center. Crisis pregnancy centers are known to mislead or outright 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.” Under George W. Bush, Lloyd also advocated for a rule protecting health-care providers who oppose abortion on religious grounds during his time as a health and human services official.

Hays told Rewire that there was some understanding of what was coming down the pike when Jane’s Due Process began to hear “rumors” from various agencies about the shift occurring in ORR. Hays traced it up the line of command, where the Trump appointees began, and independently found that many of the troubling cases they began to hear about from unaccompanied immigrant minors in shelters could be tied to former HHS Secretary Tom Price before he resigned. Federal anti-choice officials working under an anti-immigrant administration have found a friend in Texas, a state that has led the way on anti-choice laws in the form of the omnibus anti-abortion bill HB 2 and anti-immigrant laws like SB 4.

Texas Attorney General Ken Paxton said in a statement regarding Jane Doe’s case that the state has a “legitimate and substantial interest in preserving and promoting fetal life.”

“No federal court has ever declared that unlawfully present aliens with no substantial ties to this country have a constitutional right to abortion on demand,” Paxton said. “If ‘Doe’ prevails in this case, the ruling will create a right to abortion for anyone on earth who enters the U.S. illegally. And with that right, countless others undoubtedly would follow. Texas must not become a sanctuary state for abortions.”

“This Is What They’re Up Against”

Jane Doe, nearing the 20-week mark of her pregnancy, may soon be unable to access an abortion at allPart of the problem may be where Jane Doe is sheltered: in Brownsville, Texas.

Because Texas law also requires parental consent or a judicial waiver before a minor may obtain an abortion, Jane Doe had to go to court with the assistance of an attorney and an appointed guardian and to obtain the necessary judicial waiver, further delaying her care. While the young woman has legal authority to obtain an abortion, the federal government now has stepped in to block her from being transported to a clinic. They instead required her to visit a crisis pregnancy center to undergo counseling to continue the pregnancy, and she was required to have a sonogram conducted by non-medical personnel against her will. 

Hays said that historically, the reasoning stated for abortion restrictions was health and safety, but Texas’ HB 2 “blew that apart.”

“Medical data shows us that abortion is incredibly safe. In Texas, it’s safer to get an abortion than it is to give birth,” Hays said, referring to the state’s recent designation as having the highest maternal mortality rate in the developed world. “HB 2 made it so that there’s no need to pretend there’s this pretense concerning safety; now the government can simply express its preference for what women should do, and the state can say it has an interest in the unborn child. Running with that logic, there’s no end to the number of burdens and hurdles you can put up for women seeking abortion, especially minors and women in custody of immigration authorities.”

Unaccompanied immigrant minors leave their home countries, often fleeing abuse, torture, and violence, and come to the United States without their parents. Once the minor reaches the United States, the federal government provides day-to-day care for them until they are reunited with family here, are given some type of status, or are deported. The government—and government-funded shelters—are required by law to provide minors with access to the full range of medical care.

It seems that outright denying reproductive health care to immigrants in custody is becoming a trend under the Trump administration. In September, Rewire reported on another shift in policy, this time related to pregnant people in the custody of Immigration and Customs Enforcement (ICE).

Until very recently, ICE had a clear policy on how it treated women in the detention system: Girls and women between the ages of 10 and 56 were given pregnancy tests upon arrival at a facility. If they had a positive pregnancy test result, they were released from detention within 24 hours. While no new, formal policy has been made public, ICE now appears to be detaining pregnant people at the rate of one per day, according to advocates. Many of the detained immigrant women listed in a recent complaint were pregnant as a result of rape during their journey north. Since they have received inadequate medical care, they were not presented with abortion as an option, and in some cases have experienced complications in their pregnancy, including miscarriage.

Amy Fischer, the policy director at the Refugee and Immigrant Center for Education and Legal Services (RAICES), an organization that works with immigrant women who have been detained, told Rewire that access to abortion and access to reproductive health services need to be viewed as a right for migrants who have been detained, the same way that access to an attorney is viewed as a right. While not being aware of the specifics of Jane Doe’s case, Fischer explained that minors held in shelters do generally receive better treatment than women in detention centers, but the fact remains that girls and women in these facilities are a particularly vulnerable population “whose trauma is not being considered.”

“You have girls and women who are fleeing gender-based violence, sometimes from countries where abortion has been criminalized. They come from a place where you can’t trust government officials, and then they are often raped on their way here,” Fischer said. “This idea that this population of girls and women will then be able to comfortably ask for an abortion in a detention environment, where there are men with guns, is simply a joke. When they do find the courage to voice that they want an abortion, this is what they’re up against. What is happening to Jane Doe is not just horrifying and traumatizing for her, but it’s unlawful.”

RAICES has supported a number of women released from ICE detention who have wanted to move forward with terminating their pregnancy. Now, with ICE detaining pregnant people, Fischer said it is the agency’s responsibility to provide access to abortion, as outlined in the Performance-Based National Detention Standards’ section addressing medical care for women. The problem is that advocates are not at all confident that ICE, a federal agency known for human rights violations, is equipped to properly facilitate abortions. 

“We don’t trust them as an agency to support women because they attempt to dehumanize and criminalize immigrants at every turn,” Fischer said. “There’s a difference between supporting a person and their right to terminate their pregnancy, and essentially criminalizing it and making it as hard as humanly possible for her to access abortion. The latter seems to be how ICE approaches it, and it looks like that’s ORR’s approach as well.”

Unaccompanied immigrant minors are typically not held in shelters for very long, but Jane Doe has been at the Brownsville, Texas, shelter for six weeks.

“I have to believe this is because she is pregnant and seeking an abortion,” Hays said. “She has relatives in the country and she could have been released by now. I’m fearful they are waiting until she surpasses 20 weeks. I’m fearful they are going to transfer her to another shelter so that we can’t find her. I’m fearful that should she be released after 20 weeks, she’ll walk across the bridge to a border town for an unsafe procedure that she had the right to access here [in the United States]. Our government is endangering the lives of immigrant women. We cannot allow this.”