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 four of a series. See parts one, two and three for context.
The case the ACLU fought against Trump’s Office of Refugee Resettlement was called Garza v. Hargan (it was later changed to Azar v. Garza and then to J.D. v. Azar, but the first name is what it is best known as). In this article, I will explain the legal history used in the case, as well as the legal arguments made in the case.
For almost 50 years, the Supreme Court has held that women in the U.S. have a right to abortion.While the Court recognizes the government has a legitimate interest in “protecting potential life,” this does not allow it to place an “undue burden” on a woman getting an abortion before fetal viability.
In 2008, David Siegal, the acting director of ORR under the Bush administration, issued a memo saying that certain medical procedures, including abortion, require “heightened ORR involvement.” Grantees must inform ORR when a minor in their custody requests one of these procedures, and they are “prohibited from taking any actions in these cases without direction and approval from ORR.” The memo also states that ORR may contact (or require the grantee to contact) the minor’s parents.
However, different administrations have treated abortions much differently. Under the Bush and Obama administration, ORR routinely approved minor’s abortion requests, and approval from the director was only required when it came to using government funds to pay for an abortion.
Federal law allows the government to pay for abortions only when the pregnancy is the result of rape or incest or if the life of the pregnant person is in danger. The previous administrations would pay for abortions in those cases. And emails show that the Obama administration would even transport minors across state lines to get around parental notification laws or time limits on abortion.
Under the Trump administration, however, ORR’s policy regarding abortions was very different.
Under the Flores Settlement Agreement, a 1997 court agreement that set standards for the treatment of unaccompanied minors in government custody, such minors were to be provided with “routine medical and dental care” and “family planning services.” However, Trump’s ORR chose to interpret neither category as including abortion or contraception.
In March 2017, shortly before Scott Lloyd took over as director of ORR, then-acting Director Kenneth Tota announced that grantees would have to immediately inform ORR when a girl in their custody requested or expressed interest in abortion, and they could not “take any steps that facilitate” abortions without “signed written authorization from the ORR director,” except in the case of emergency medical situations. One email from Tota said that shelters shouldn’t take actions such as “scheduling appointments, transportation, or other arrangements” without permission. Another included “pursuing a judicial bypass” as well.
A person (whose identity has been redacted) sent a reply to the latter email, expressing concern about the legality of requiring permission from the director for minors to be able to access judicial bypasses writing, “Isn’t that contrary to state law? My understanding is that the judicial bypass was created specifically so that the young lady does not need approval from her guardian (in our case the Director of ORR) to move forward with a term of pregnancy. Has this policy been vetted by your legal department?”
In at least one case, ORR did order a shelter to keep a pregnant minor from meeting with an attorney to pursue a judicial bypass. In another case, an ORR official attempted to enter the judicial bypass hearing of a minor known as Jane Doe, insisting that since the agency was Doe’s legal guardian, she had a right to oversee the proceedings. This was untrue – the judicial bypass process is entirely confidential, even from minors’ legal guardians.
As director of ORR, Lloyd, who believed abortion is “the destruction of human life,” repeatedly denied abortion requests, even in the case of a minor who was pregnant from sexual assault, a far cry from the previous administrations’ willingness to even pay for abortions in such cases. In fact, Lloyd testified in a December 2017 deposition that he had never approved a request for an abortion.
Lloyd tried to coerce minors seeking abortions. He ordered that shelters “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.” In fact, Lloyd instructed shelters to take minors seeking abortions to get “options counseling” at crisis pregnancy centers, which are anti-abortion organizations that try to pressure women into keeping unwanted pregnancies.
He had a list of “approved providers,” which was created with the assistance of two anti-abortion organizations. Lloyd also instructed that minors be given medically unnecessary ultrasounds, among a host of other coercive tactics. Finally, he forced minors to tell their parents and potential sponsors about their pregnancies and desire to terminate, or else ORR or shelter staff would do so, even when minors had gotten judicial bypasses. Lloyd even did this when the parents were abusive.
If a minor withstood such coercion and maintained her request for an abortion, Lloyd would still not allow her to get one. The American Civil Liberties Union took the government to court to stop it from denying immigrant minors the ability to terminate their pregnancies. The next section breaks down the legal arguments used in the case.
Arguments Made in Garza v. Hargan
Jane Doe’s Case
Jane Doe was a pregnant 17-year-old in ORR’s custody. She wanted to get an abortion and had obtained a judicial bypass enabling her to get one without parental consent. She also had private funds to pay for the procedure. However, the government refused to allow her to get an abortion. It had also ordered the shelter where she was being held to notify her abusive parents about her pregnancy, and it sought to tell them about her desire to terminate.
The ACLU sought a temporary restraining order to force the government to let Doe get an abortion and prevent it from further notifying her parents, making her visit a crisis pregnancy center again, or retaliating against her for getting an abortion. It argued the government had violated Doe’s Fifth Amendment rights by refusing to allow her to get an abortion and by notifying her parents, and it argued the government had violated her First Amendment Rights by compelling her to speak with a crisis pregnancy center. (The First Amendment forbids the government not only from prohibiting speech but also from compelling it).
Later in the court case, the ACLU argued that ORR’s policy also violated the Establishment Clause of the First Amendment by forcing minors to visit religious clinics. Finally, the ACLU argued that it was in the public’s interest for Doe to receive a temporary restraining order, since the courts have held that “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.”
However, the government argued that it was not violating Doe’s rights. It argued that notifying her parents did not violate her Fifth Amendment Rights, since it did not create an “undue burden” on her ability to get an abortion. The ACLU argued that since Doe had already obtained a judicial bypass, the government had no legitimate reason to require the notification of her parents.
The government also argued that it had not violated Doe’s First Amendment rights by forcing her to visit a crisis pregnancy center since it had not compelled her to speak. They said that laws requiring pre-abortion counseling have been declared constitutional and that the Supreme Court has held that the government is allowed to express a particular viewpoint, including through private actors. The ACLU argued that by nature of requiring such counseling, the government, at the very least, compelled Doe to tell the center she wanted an abortion. They said pre-abortion counseling laws mandate counseling from abortion providers, not a “non-medical, ideological, religiously affiliated anti-abortion entity,” and that there is a difference between the government expressing a viewpoint through a private entity and forcing Doe to “speak to an entity that is hostile to her abortion decision.”
In terms of allowing Doe to get an abortion, the government argued it was not placing an “undue burden” on Doe getting an abortion, but merely declining to “facilitate” an abortion. It argued she was free to return to her home country to get an abortion. However, Doe’s home country did not allow abortions. In fact, in Latin America (a region many unaccompanied minors come from) almost all countries ban abortion. Furthermore, even if Doe did come from a country that allowed abortion, “voluntary departure” is not freely available but instead at government discretion, and the process can be lengthy. Finally, as the ACLU argued, “[t]he government should not be allowed to use her constitutional right to access abortion as a bargaining chip to trade for immigration status, any more than it could require a person in [Doe]’s situation to convert to another religion, or to obtain an abortion, in exchange for immigration status.”
The government also argued that she could wait until she was released to a sponsor to get an abortion, but the ACLU pointed out that this was merely speculative, since there was no guarantee the government would be able to find a sponsor for Doe before she passed the legal time limit to get an abortion. Furthermore, even if Doe was released to a sponsor before she reached the limit, she would still have suffered harm due to the delay, since “every week that the government prevents [Doe] from getting the care she seeks is another week that she must remain pregnant against her will, subject to both the physical and emotional realities that entails” and “each week of delay substantially increases the risks associated with the abortion.”
Also, the government’s argument that it should not have to “faciliate” abortion did make not much sense, since Doe had obtained private funding for her abortion, and her court-appointed representatives would be able to transport her to her appointments. All the government had to do was to stop, as the ACLU put it, “holding her hostage to prevent her from exercising her fundamental constitutional right to abortion.”
Judge Chutkan agreed with the ACLU, and she issued a temporary restraining order. As I detailed in the previous article, there was a series of appeals, but ultimately Doe was able to get her abortion.
In the appeals process, several arguments were made that merit mentioning. For instance, in its appeal, the government argued that it would be able to find a sponsor for Doe in 11 days, thus eliminating the need for a temporary restraining order. However, the ACLU expressed doubt that the government would be able to complete the sponsorship process in that time frame, and it once again argued that forcing her to remain pregnant against her will for any length of time would do great harm to her. Finally, it pointed out that, after that 11-day delay, Doe would no longer be able to receive an abortion at the clinic closest to her, meaning she would have to travel “hundreds of miles” to the next closest clinic.
Some other arguments were made in an amicus brief that several states filed in support of the ACLU. In this brief, they argued that the government’s refusal to allow abortions to immigrant minors in its custody violates the principle of federalism. In the case of states that allow minors to choose to get abortions on their own, the federal government is putting its policy before theirs by mandating certain minors in those states get the approval of a federal agency to terminate their pregnancies. In the case of states that mandate either parental consent or a judicial bypass, the federal government, by refusing to let minors with judicial bypasses get abortions, is putting its own judgement of what’s best for them above that of state courts. The brief argues that this is troublesome, since “[i]t is well established that—as with all issues of domestic and family relations— the standards for determining the best interests of children are governed by state law.”
The brief also addresses a comparison made by the federal government between its policy that immigrant minors can get abortions by being released to a sponsor and the judicial bypass process. It brought up several important differences between the judicial bypass process and the sponsorship process that render the comparison invalid.
Texas (the state where Doe was located) also filed an amicus brief, this one in support of the federal government. They argued that since Doe was an undocumented immigrant with “no ties to the United States,” she was not entitled to “ the full scope of the Fifth Amendment’s protections.”
The ACLU had this to say in response:
“The Supreme Court has long recognized that immigrants who lack lawful status are protected persons under the Due Process Clause… The implications of amici’s argument that J.D. is not a “person” in the eyes of our Constitution is also deeply troubling. If true, then that would mean she and everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction). They could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term. Even if pregnancy would kill the Mother, the Constitution would turn a blind eye. Detainees would have no right to any medical treatment or protection from abuse by other detainees. Those with diabetes or suffering heart attacks could be left to die while their governmental custodian watches.”
The Roe, Poe, and Moe Cases
Although the government maintained that Doe’s case was wrongly decided, it also tried to argue that the cases of the other “Janes” were substantially different from Jane Doe’s case, and therefore Chutkan shouldn’t issue restraining orders in their cases.
Jane Poe’s “Best Interest”
In the cases of Roe, Poe, and Moe, the government continued to argue that it should not have to “facilitate” abortion. This argument made as equally little sense as it did with Jane Doe. All three girls had obtained private funding to pay for their abortions, and they all had shelter staff who were willing to transport them to their appointments. Thus, once again, all the government had to do was to cease holding the girls hostage and allow them to get their procedures.
However, in Jane Poe’s case, the government went beyond simply saying that it did not want to facilitate her abortion. It actually argued that, as her legal guardian, it had determined that an abortion was not in her best interest. However, in the memo where Scott Lloyd lays out his justification for why abortion is not in Poe’s best interest, he does not start from a neutral position and make a case based on her specific circumstances.
Rather, he starts from the position that abortion is wrong and then argues why Poe’s circumstances (specifically the fact her pregnancy was the result of sexual assault) did not justify a shift from that position. Lloyd even writes that ORR was being asked to “participate in killing a human being in our care.” This makes clear that Lloyd’s refusal to let Poe get an abortion was based on his own personal beliefs rather than her best interest. Thus, the policy of requiring the director of ORR’s approval for minors to terminate their pregnancies acted as a blanket ban on abortion.
Furthermore, even if the government’s refusal was actually based on Poe’s best interest, it didn’t have the right to make that decision for her. The state where Poe was being held didn’t require parental consent for a minor to get an abortion, meaning by trying to veto Poe’s abortion decision, the government was claiming rights not even held by actual parents.
Bizarrely, however, the government actually tried to use this fact to argue for its position.
“No Need for Parental Consent Means We Can Deny Abortions!”
Since Roe, Poe, and Moe all resided in states without parental consent laws with regards to abortions, it should have been a no-brainer that consent from ORR shouldn’t have been required either. However, the government argued that since the girls had not been required to get judicial bypasses, there had been no determination that they were “mature” enough to make the decision to end their pregnancies.
To this, the ACLU argued that the states where the girls were being held had decided as a matter of policy that such a determination would not be required for minors to get abortions, and the federal government should not be able to supersede that decision. Furthermore, the ACLU pointed out that, once again, the federal government’s argument meant that it was trying to claim more authority than actual parents in those states. It also pointed out that the Supreme Court mandates that states with parental consent laws provide judicial bypasses as another option. Since girls in ORR custody do not have this redress when ORR denies them abortions, ORR’s policy is unconstitutional.
The Government’s Conflicting Arguments about Gestational Age
In the Roe and Poe cases, the government made conflicting arguments about how far along the girl’s pregnancies were. In the case of Jane Roe, it argued that since she was fairly early in her pregnancy, a potential sponsor had already been identified for her and it estimated the approval process for that sponsor could be completed in two weeks, there was no need for the court to issue a temporary restraining order in her case.
In the case of Jane Poe, who was 22 weeks pregnant and quickly approaching the legal limit for abortion in the state where she was being held, the government argued the opposite: that since she was “approaching the point of viability, if she is not already there,” the “undue-burden” standard didn’t apply. It also argues that Poe had recently said she wanted to keep the pregnancy, even though she only wavered in her decision to terminate because her mother and her potential sponsor (whom the government forced Poe to notify about her pregnancy and desire for abortion) threatened to physically harm her if she ended her pregnancy.
The ACLU pointed out the contradiction in the government’s argument: it was essentially saying that both being early and far along in pregnancy was grounds for denying an unaccompanied minor an abortion. In Poe’s case, the ACLU argued that “the fact that a woman may be approaching a point at which abortion is no longer legal does not entitle the government to prevent her from being seen by a physician who can accurately date the pregnancy and, if legal, provide the abortion. Quite the contrary: That Ms. Poe may be approaching that line is exactly why the [temporary restraining order] must be granted immediately, and why the government’s request for a stay of any length must be denied.”
The Government Once Again Uses Sponsorship as a Justification to Deny Abortions
In response to the government’s argument that Roe didn’t need a restraining order because she would soon be released to a sponsor, the ACLU described the government’s estimate of two weeks to approve Roe’s sponsor as “rosy, best-case scenario” that required many factors to go smoothly, all of which were out of Roe’s control. It also made arguments that it had also made in the case of Jane Doe: every day that Roe was forced to remain pregnant against her will would cause her “physical, psychological, and constitutional harm,” and therefore forcing her to wait even two weeks to get an abortion would be unjust. In its initial court filing, the ACLU had also referenced the increased risk of complications in an abortion as the pregnancy progresses.
In fact, the delay had already harmed Roe: she’d wanted to get a medication abortion, but the government had pushed her past the point where that would be possible. Finally, the ACLU argued that Doe’s case suggested that the government was not able to reliably estimate how long the sponsorship process would take. In Doe’s case, the government told the appeals court it could find her a sponsor in 11 days, but more than a month later she was still in government custody.
In Jane Moe’s case, the government made a similar argument. Although Moe was already in her second trimester, the government contended that the process of getting Moe a sponsor was almost complete and that she would be released to her sponsor in one week, so there was no need to issue a temporary restraining order. The government argued that the short time it estimated was necessary to complete the sponsorship process, combined with the fact that up until that point Moe had been forced to wait “only” two weeks to get her abortion, meant it was not placing an “undue burden” on Moe’s ability to get an abortion.
Having already addressed this same argument so many times before, the ACLU simply replied, “Given that time is of the essence, Plaintiffs incorporate by referencing their prior briefing, in this case, particularly their Reply to Defendants’ Oppositions to Motion for a Temporary Restraining Order [in the case of Jane Roe and Jane Poe].”
In the end, all four girls were able to get the abortions they sought. However, the policy of denying abortions was still in place. The ACLU would need to get a blanket order of protection in order to ensure the no other girls’ right to bodily autonomy were violated by ORR. That is the subject of the next article in this series.
How the Trump Administration Tried to Force Immigrant Girls to Give Birth – Part Three
How the Trump Administration Tried to Force Immigrant Girls to Give Birth – Part Two
How The Trump Administration Tried To Force Immigrant Girls To Give Birth – Part One