In March 2017, the Trump administration began a policy of denying abortion to undocumented minors in its custody. Immigrant girls fought the government in court for the right to terminate their pregnancies. This is their story.

This article is part five of a series. See parts one, two, three and four for context.

In my last article, I broke down the arguments used by both sides in the American Civil Liberties Union’s case against the Office of Refugee Resettlement for its policy of denying abortions to unaccompanied minors in its custody. In this article, I will explain where the case is as of right now.


Despite the fact that Jane Doe had gotten her abortion, the government still took the case to the Supreme Court on Nov. 3, 2017. It filed a “petition for a writ of certiorari,” asking the court to vacate the appeals court’s decision. It argued that Doe’s case should be considered “moot” since she had already gotten her abortion. This would mean the case would not set precedent.


Shockingly, the government also asked the court to sanction Doe’s attorneys, claiming they had engaged in misconduct in getting Doe an abortion before the government appealed. This could have potentially led to the loss of their attorneys’ licenses and the end of their careers.

Initially, Doe’s attorneys had told the government she would have her pre-abortion counseling appointment on Oct. 25, 2017 and the actual abortion on Oct. 26. At the last minute, however, it turned out a doctor Doe had already had a counseling session with would be available. Since Texas law mandates a patient get an abortion from the same doctor who counseled them, this meant Doe would be able to have the procedure a day earlier than expected.

The government argued Doe’s lawyers had acted improperly in not informing them in the change of plans. However, there seems to be no basis for this claim. In an opinion piece for the Hill, David Luban, a law professor at Georgetown University and a former member of the D.C. Bar’s Ethics Committee, argues that the government’s claim is baseless:

“The government seems to think Jane Doe’s lawyers were obligated to tell the government that the doctor who provided the counseling days earlier had become available. But that misunderstands both the letter and the spirit of the ethics rules.

“A lawyer’s first duty is to the client, and the rules of ethics are designed with that duty in mind. Jane Doe’s lawyers — like all lawyers — are prohibited from revealing information that would “likely be detrimental to the client” (in the words of D.C.’s ethics rules). Not only were Jane Doe’s lawyers not required to tell DOJ that the abortion would happen early Wednesday morning, they were prohibited from telling them.

“The government’s strategy throughout this case has been to drag out legal proceedings until past week 20 of her pregnancy when under Texas law, abortion is illegal. Had Doe’s counsel illegally revealed confidential information about when her abortion would take place, DOJ might have raced to prevent her from exercising her constitutional right, and then continued the stalling tactics. The true ethical violation would be if Jane Doe’s counsel revealed confidential information to her adversary that might damage her.”

Luban asserts the government’s lawyers may actually have been the ones committing an ethics violation in filing a frivolous complaint:

“Government lawyers ought to know the rules of their own profession, especially if they are accusing their adversary of violating them. The irony is that filing frivolous accusations with the Supreme Court is itself an ethics violation — and DOJ’s accusations against Jane Doe’s lawyers come perilously close to crossing that line.”

Luban theorizes the government’s complaint may have been an intimidation tactic:

“At best, the Department of Justice (DOJ) accusations are an attempt to deflect responsibility from themselves to their opponents. At worst, it is a conscious effort to deter others who dare to challenge the Trump administration.”  

Brigitte Amiri, one of Doe’s attorneys, agrees. In an interview with Rewire.News, she said:

“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 … It seems no one is immune to the government’s retaliation.”


When it came to its request for the Supreme Court to vacate the lower court’s ruling, the government argued that Jane Doe had made the case moot by getting an abortion. The government also argued that, if that had not occurred, the court would likely have decided to review the case and ruled in favor of the government. To make this case, the government repeated several arguments it had made before: that it should not have to “facilitate abortions” and that Doe could have returned to her home country or waited until she was released to a sponsor to get an abortion.  In fact, the government argued that it was close to releasing Doe to a sponsor when she got an abortion:

“… at the time the [appeals] court ruled, we had been informed by HHS that a potential sponsor had been identified, HHS was assisting that person with the application, and HHS believed that the approval process could be completed within a week (assuming the individual applied and was qualified). The government intended to so inform this court in its stay application.”

This argument is especially ridiculous, since the government made its petition on Nov. 3, long past the Oct. 31 deadline the initial appeals panel gave the government to release Doe to a sponsor, and Doe was still in the government’s custody. In fact, Doe would not be released to a sponsor for more than two months after the government filed its petition with the Supreme Court, far past the point where it would be legal for her to get an abortion. It is obvious that the government’s actions placed an “undue burden” on Doe’s ability to terminate her pregnancy and were therefore unconstitutional.


Two amicus briefs were filed before the Supreme Court, both on behalf of the government. The first, filed by the Legal Center for Defense of Life, gave further arguments for why the full appeals court had erred in its decision. It argued that Doe did not have a constitutional right to abortion, since “[Doe] is a trespasser on American soil, and has no legitimate right to demand an abortion here.”

The center also argued that the government should not have to be “complicit” in abortions, and, when it comes to requests for abortions by those in its custody, “such complicity is inherently sought by the attempt itself.” Since Doe had the option of going back to her home country, the center compared the situation to if someone “had entered a religious hospital that declines to perform abortions and then refuses to leave until she obtains one at that hospital.”

This argument makes no sense since Doe did not request that the court force the government to perform an abortion, or in any way aid in the procuring of one. All she asked was that the court order the government to stop preventing her from getting an abortion. 

Finally, although the center acknowledged that Doe’s home country bans abortions, it actually argued that that is a reason that Doe should have been denied one in the U.S., asserting that letting Doe terminate her pregnancy in this country undermined the laws of that nation.

The center also made arguments as to why Doe’s attorneys had acted improperly. It repeated the government’s argument that her lawyers should have informed the government that Doe would be getting the procedure a day earlier than expected. The center referred to the absence of such a warning as “a blight on the orderly administration of justice,” and compared it to if the government had rushed the execution of a prisoner to avoid Supreme Court review. This argument is wrong for the reasons discussed by Luban above.

The center also claimed that the attorneys’ actions harmed Doe herself. By getting her what it described as a “rushed, middle-of-the-night abortion, the center claimed Doe’s attorneys subjected her to “unjustified medical risk.”

This argument fails for several reasons. Firstly, Doe’s attorneys said in a later court filing that, although Doe left the shelter where she was being held at 4 a.m., the actual abortion didn’t take place until 8 a.m., hardly a “middle-of-the-night” procedure. And to the extent that it was rushed, that was the fault of the government, whose efforts at blocking Doe’s abortion had created a time pressure. Finally, as Doe’s attorneys had previously argued, the governments request that Doe’s abortion be delayed until it released her to a sponsor was what would have actually subjected her to greater medical risk, since she would have been pushed further into her pregnancy, increasing the risk of complications from abortion.

The center also asserted that Doe’s attorneys had robbed her of the ability to give “informed consent” to the abortion:

“A woman’s right to revoke consent remains essential until the abortion begins, and she has a right to have full clarity of thought until that life-changing moment. …

“[Doe] was merely 17 years old while in a land foreign to her, and one can only wonder what she was told to explain why the abortion was being done in the middle of the night.

“It is plausible, even likely, that J.D. did not feel she had much of a choice to decline the middle-of-the-night abortion or to request more time to reconsider whether to have it. She was probably told it was necessary to have it done immediately, and she may have felt she did not have a right to change her mind. That is not true consent, and that is inconsistent with the applicable Texas law requiring informed consent after counseling.”

That’s a lot of assumptions for which the center provides no evidence, and it ignores the fact that Doe had been requesting an abortion for weeks and had been unwavering in her decision to end her pregnancy.


The other amicus brief was filed by a number of states, including Texas, where Doe was being held. The brief argued that “unlawfully-present aliens with virtually no connections to the country” like Doe don’t have a constitutional right to abortion and that the lower court’s ruling “effectively announces that anyone on Earth has any number of constitutional rights simply by being apprehended while trying to cross the United States border unlawfully. This holding will make the unlawful immigration crisis worse and further strain the budgets and resources of governments throughout the Nation.”


The Supreme Court issued its decision on June 4, 2018 in an unsigned opinion.

The court chose to split the baby. It declined to sanction Doe’s attorneys, though it was quite conciliatory to the government’s ridiculous request.  “On the one hand,” the court wrote, “all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another’s representations.” But it added that “lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct.” 

For the other request, the court sided with the government, declaring that the case had been made moot by Doe’s abortion. The justices vacated the appeals court’s decision and instructed the lower courts to dismiss the case,  meaning the decision would not set a precedent.

For unknown reasons, the government chose not to appeal this decision to the Supreme Court. It has also agreed to continue to abide by the second part of the order while the case is litigated in the lower court.


However, it ultimately didn’t matter all that much that the case was vacated. On March 30, Judge Chutkan had certified a class-action lawsuit on behalf of “all pregnant, unaccompanied immigrant minor children who are or will be” in the custody of the Office of Refugee Resettlement against ORR’s abortion-denying policy. She had also issued a preliminary injunction blocking the government’s abortion-denying policy while the case progressed. The injunction declared the government was:

“(1) Enjoined from interfering with or obstructing any class member’s access to: (1) a judicial bypass, (2) medical appointments related to pregnancy dating, (3) non-directive options counseling, (4) abortion counseling, (5) an abortion, or (6) other pregnancyrelated care; 

“(2) Enjoined from forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion, [later added: unless the class member provides non-coerced consent to such disclosure or needs emergency medical care and is incapacitated such that she is unable to inform a medical care provider herself;]

“ (3) Enjoined from retaliating against any class member based on her decision to have an abortion; 

“(4) Enjoined from retaliating or threatening to retaliate against contractors that operate the shelters where class members currently reside for any actions that those contractors or shelters have taken or may take in facilitating class members’ ability to access pregnancy and abortion-related medical care or an abortion. ”

The government appealed the decision. It argued that the preliminary injunction  “restricts ORR’s ability to provide appropriate medical care, to involve parents when appropriate, and to properly vet future sponsors” and that it would “require ORR to facilitate the ending of a life or potential life, irrespective of the circumstances – even after fetal viability.”

The government also argued that the class certification was invalid because it included all pregnant minors in ORR custody, and “different pregnant minors will seek different types of medical treatment, present unique circumstances regarding age and maturity, and have differing sponsorship prospects.” The government asserted the injunction would include “the large majority [of pregnant minors in ORR custody] who do not want abortion services and many who will not agree with the controversial pro-choice claims being asserted on their purported behalf.” It argued that any minors seeking abortions could individually sue in court, ignoring the fact that the ACLU was only able to find out about the girls it went to court for through anonymous tips and that there were other cases it only found out about long after they happened.

Chutkan later ordered that all ORR-funded shelters notify minors of their right to abortion and tell them to contact the ACLU if the government tries to prevent them from getting one, but the government opposed this as well, arguing that it causes irreparable harm by forcing ORR to favor abortion over life” and “infringes on the conscientious objections of those grantees who do not want to communicate a pro-abortion message to minors, especially to minors who are very young or uninterested in abortion.”

In response, the ACLU argued that regardless of minors’ varying circumstances, ORR had adopted “a uniform policy of ensuring that [unaccompanied minors] continue their pregnancies while in government custody.” It also argued that, regardless of whether a minor ultimately chooses to remain pregnant, ORR’s policy “affects all pregnant [unaccompanied minors] by steering their pregnancy decisions in coercive ways, denying them unbiased information, disclosing their decisions to third parties, and ultimately taking power to determine the outcomes of their pregnancies out of their hands and placing it, unconstitutionally, into the hands of Defendant Lloyd.”

The government also argued the injunction would encourage pregnant minors to come to the U.S. to get abortions, which is referred to as “abortion tourism.” However, a coalition of states argued in an amicus brief that “[t]here is no evidence whatsoever that any unaccompanied minor has entered the country to access abortion services.

Many girls do not learn that they are pregnant until they are apprehended and submit to a medical examination in the United States. Others may become pregnant while trying to enter the country or after having arrived” and that “ORR’s concern about ‘abortion tourism’ rings especially hollow in light of its director’s attempts to persuade a minor not to have an abortion by telling her that ‘the baby would be a U.S. citizen.’ ORR cannot impose its policy preference for childbirth onto children who do not wish to be pregnant.

On June 14, 2019, the appeals court issued its decision. It mostly with the ACLU, upholding both the class certification and the part of the injunction preventing ORR from blocking unaccompanied minors abortions, though it vacated the part related to disclosure and remanded it to the lower court for further factual development. For unknown reasons, the government chose not to appeal this decision to the Supreme Court. It has also agreed to continue to abide by the second part of the order while the case is litigated in the lower court.


And that is where things stand now. The case remains in court, and the government is prohibited from interfering in unaccompanied minors’ abortions until it is completed.

In my next article, I will detail ORR Director Scott Lloyd’s past history with abortion as well as what happened to him after all of this went down.

Then, in my final article, I will break down what I think we can take away from this case.

Read also:
How The Trump Administration Tried to Force Immigrant Girls to Give Birth – Part One
How The Trump Administration Tried to Force Immigrant Girls to Give Birth – Part Two
Why We Must Demand Change In Our Country’s Domestic Violence Provisions