In this seven-part series, I have detailed the American Civil Liberties Union’s fight to stop the Office of Refugee Resettlement from preventing immigrant girls in its custody from getting abortions. Now, in the final article, I will detail what happened to some of the major players after everything went down, and I will detail what we can take away from this case. Finally, I will end with a statement from Jane Doe herself.
Where are they Now?
After weeks of fighting, Doe was finally able to obtain an abortion on Oct. 25, 2017. A week before, she did an exclusive interview with Vice news.
After her abortion, despite the government arguing they would soon be able to release her to a sponsor, she remained in the shelter for several more months. In early 2018, though, Doe was finally released to the custody of a sponsor, and she turned 18 soon afterward.
The American Civil Liberties Union
The ACLU continues to fight for people’s civil liberties, including in the ongoing Garza v. Hargan (now known as J.D. v. Azar) case.
“The Fight,” a documentary released in July 2020, details the behind the scenes of the ACLU’s fight against the Trump administration. It shows four different cases, including Garza v. Hargan.
Garza was Doe’s guardian ad litem – her court-appointed representative. She helped Doe throughout the entire fight, from when she went to court for a judicial bypass to when she was finally able to get her abortion, and she was there with her when she got the procedure.
Garza is now a staff attorney with the ACLU. In September 2018, she testified before the Senate Judiciary Committee, arguing that Brett Kavanaugh should not be made a Supreme Court justice because of his vote to delay Doe’s abortion. Though Kavanaugh was eventually confirmed to the court, Garza was able to tell Doe’s story to the senators and share all that she went through. I found the conclusion of Garza’s testimony was the most powerful part:
“Jane endured what no human being should have to, much less a young woman in detention. She was alone and completely under the physical control of the federal government and at the mercy of decision-makers that knew nothing of what it was like to be her. They did not see her face, as I did, every time I had to tell her that her care was being delayed again. They did not see her suffering and desperation. This suffering was only compounded by Judge Kavanaugh’s decision to delay her abortion decision even further—a decision that could have resulted in her being forced to carry her pregnancy to term. It showed no real consideration for Jane or her circumstances.
“I am and will always be in awe of Jane. She was put through an unimaginably difficult situation and one that would have broken almost any other person. But she possessed a profound strength of character that saw her through it all. It was an honor to represent her, to be by her side, to be able to witness true perseverance and to share that today with the Senate Judiciary Committee. I can think of nothing more human or more American than what I saw in Jane. Jane was ultimately released to a family member in January 2018, shortly before turning 18 years old. Knowing that she is living in the United States and pursuing the life she hoped for makes me feel a great sense of pride and hope, not only for her as an individual but also because of the impact her resolve is having and will have on young women in her situation. She was tiny but she ignited change, and just like she said: ‘This is my life, my decision. I want a better future. I want justice.’”
What can we take away from this case?
This case shows the intersection of two important issues: immigrant rights and women’s reproductive rights.
The government was able to deny immigrant girls their right to abortion because their vulnerable status as unaccompanied minors put them at the mercy of ORR’s whims.
Unaccompanied minors have an acute need for reproductive health services. There are thousands of minors in ORR’s custody at any one time, hundreds of which are pregnant. They have come to this country fleeing violence, abuse, and even torture. They may even be the victims of labor or sex trafficking. Many are victims of sexual assault, as it is estimated that between 60 and 80 percent of migrant women and girls are raped during their journey to the U.S.
When they came to this country, our government would abuse them further, denying them the ability to end their pregnancies and subjecting them to coercive tactics like forcing them to get religious counseling and medically unnecessary ultrasounds and notifying their parents of their pregnancies and decisions to terminate without their consent, even when their parents were abusive. It said they could return to their home countries to access their right to abortion, even though, in many cases, their lives would be in danger if they went back.
The Supreme Court has declared that abortion is a constitutional right, based on the Fifth and Fourteenth Amendments guarantee of “liberty” for every “person” in the U.S., and the government can’t place an “undue burden” on a woman seeking an abortion.
While the federal government focused its legal arguments on why its actions didn’t constitute an “undue burden,” a coalition of states filed amicus briefs that actually made the argument that undocumented immigrants don’t have the same constitutional rights as others in this country. They argued the Supreme Court has held that Fifth Amendment rights exist on a “sliding scale,” with only U.S. citizens having the full “scope” of rights. While all people in the U.S. have protection from “gross physical abuse” and “wanton or malicious infliction of pain,” to get more than that, an undocumented immigrant has to have “substantial ties” to the U.S. The states contend that minors like Doe, who was caught while crossing the border, do not have “substantial ties” to the U.S.
However, the states acknowledge that the Supreme Court hasn’t clarified what constitutes “substantial ties.” The case they reference, United States v. Verdugo-Urquidez, deals with a Mexican citizen who was arrested in Mexico and brought to the U.S. involuntarily in order to stand trial. This is quite different from Doe, who came to this country voluntarily in order to build a life here.
And even if that doesn’t qualify as “substantial ties,” being forced to remain pregnant against one’s will should certainly be considered a wanton infliction of pain. After all, as the ACLU points out in its response to this argument, if the U.S. government can deny undocumented immigrants abortions, they can deny them any other medical treatment as well. In fact, they could even force them to have abortions, and, given the recent concern over “anchor babies,” is that really such an outlandish notion?
This case seems to connect to our country’s dangerous tradition of white people claiming ownership of brown bodies.
Overall, this case is clearly about far more than just abortion. It is also about who qualifies as a “person” under the Constitution, and therefore who should have rights in this country.
Women’s reproductive rights
Conversely, however, this case is also not just about immigrant rights. It is also about whether women of all legal statuses should have the right to control their own bodies.
ORR asserts the right to control the abortion decisions of minors in its custody based on a 2008 requiring ORR’s approval for minors to undergo “serious medical procedures,” which include “significant surgical or medical procedures, abortions, and services that may threaten the life” of an unaccompanied minor, except in medical emergencies. However, an ORR official clarified in an email that ORR’s new policy of the permission of ORR’s director applied only to abortions, thereby singling out that specific type of procedure.
Furthermore, I would contend that including abortions among the list of “serious medical procedures” is misguided, as abortion is an incredibly safe medical procedure, with little risk of complications, especially when performed early in pregnancy. Also, unlike the other procedures listed, abortion provides government officials with the ability to inject their personal ideological beliefs into minor’s medical decisions. In fact, while the other two categories seem to be self-explanatory as to why they might require heightened ORR involvement (increased risk to the minor’s life or health from the procedure), the fact that abortion was included in that list and even singled out as its own category seems to indicate that ORR was motivated by ideology.
If it were included simply out of a concern for minor’s health, wouldn’t it have been covered under “significant surgical or medical procedures”? By singling abortions out, ORR seemingly admits that it does not view them as a “significant” procedures, which suggests it injected itself into minors’ abortion decisions for purely ideological reasons. Finally, unlike other procedures, the right to abortion (including for minors) is protected under the law, and the government may not place an “undue burden” on women seeking abortions. For these reasons, it is inappropriate for the government to require any kind of permission from ORR for minors to get abortions.
Even the policy of telling minors’ parents about their abortion decisions didn’t begin under Trump. The 2008 memo said that ORR (or the grantee at ORR’s request) “may inform the parent or legal guardian of the [minor’s] medical situation and ask the parent or legal guardian how he/she wishes the situation to be resolved.” Under Trump, ORR told Jane Doe’s parents about her pregnancy, despite her objections. She had not wanted them to find out because they had physically abused her older sister when she became pregnant out of wedlock.
A woman’s (or trans man’s or non-binary person with a uterus’s) decision to end a pregnancy is one of the most personal and private decisions a person can make. And yet, the government continually inserts itself into these decisions. As ACLU attorney Brigitte Amiri said in a statement shortly after Jane Doe got her abortion:
“It might be easy to dismiss Jane’s case as unique. But make no mistake: the Trump Administration would do to all of us what it has done to Jane if it could.
“Anti-abortion politicians always start by targeting the most marginalized. Shortly after Roe v. Wade was decided in 1973, a member of Congress, Henry Hyde, introduced a law that banned Medicaid from covering abortion. ‘I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman,’ he said at the time. ‘Unfortunately, the only vehicle available is the Medicaid bill.’
“To this day, the Hyde Amendment prohibits federal funds to cover abortion for those who have Medicaid for their health insurance, forcing one in four poor women to carry an unwanted pregnancy to term because she can’t raise the money to pay for an abortion. Though separated by time, the Trump administration’s actions mirror those of Hyde. They aim to put an end to abortion, and they target low-income and marginalized people in our society.
“Trump has vowed to appoint Supreme Court justices that would overturn Roe, and earlier this month, the Trump administration rolled back the Affordable Care Act’s contraception coverage requirement. There is no doubt that more attacks are coming.
“In just the first six months of 2017, state legislators in six states introduced measures to ban all abortions, and legislators in 28 states introduced measures to ban abortions under some circumstances, all of them supported by the Trump administration.
“If you were outraged by what our government did to Jane, you should know that there are so many more Janes out there. Not just unaccompanied immigrant minors, who are in a similar situation to Jane, but everyone in this country who is unable to access the care that they need because of the sham laws put in place by ideological politicians. As we did for Jane, let’s stand together and say: If you want to come for any of these Janes, you have to go through us first.”
What can be done?
The simplest answer is to vote. Get Trump out of office. Scott Lloyd is not unique: the Trump administration has made a habit of putting unqualified but zealous ideologues into positions of power. As The Intercept put it, this administration has elevated what were once sleepy bureaucratic backwaters into prominent culture war battlefields.” Just look at the Department of Health and Human Services alone:
Maggie Wynne, former director of the House of Representatives Pro-Life Caucus and Lloyd’s fellow Knights of Columbus alumna, was made a policy counselor at HHS. Control of all Title X family planning grants was given to the former CEO of Ascend, an organization that promotes abstinence-only sex education and supports crisis pregnancy centers, causing concern that funding would be taken from groups like Planned Parenthood and redirected to largely faith-based crisis pregnancy centers.
Charmaine Yoest, former president of Americans United for Life and a senior fellow at American Values—a far-right organization that supports “traditional family values”—was made the assistant secretary of public affairs at HHS. Shannon Ryce, who was made head of HHS’s Center for Faith-based and Neighborhood Partnerships, which leads the department’s efforts to partner with faith-based and community organizations, was previously chief of staff for the Family Research Council, which the Southern Poverty Law Center has identified as an anti-LGBTQ hate group.
The Alliance Defending Freedom is another SPLC-identified hate group, due to its focus on spreading defamatory information about LGBTQ people as a class and its support for the criminalization of LGBTQ people abroad. It frequently sues the federal government to undermine nondiscrimination laws and reproductive rights and works against what it refers to as the “myth of the so-called ‘separation of church and state.’ ” For years, Matt Bowman litigated religious exemption cases for ADF, and he was a key member of its Life Litigation Project, working to “protect the sanctity of human life.”
He was one of the attorneys representing Conestoga Wood Specialties in its suit against HHS over the contraceptive mandate, which eventually became the “Hobby Lobby” case. He has claimed that employers who provide insurance coverage for contraception “kill embryos and bow to the altar of fruitless intercourse.” He also has close ties with Operation Save America (formerly Operation Rescue National), an anti-abortion organization known for organizing mass protests of abortion clinics. In 1997, he was arrested in a protest of Disney World organized by the group against Disney’s “gay-friendly” policies. He has also had at least a dozen run-ins with police at anti-abortion protests, where he harrassed abortion clinics’ patients and staff. Once, he even picketed an abortion provider’s house.
Under Trump, Bowman was made a legal adviser at HHS, interpreting whether the department’s policies are in line with the religious exemptions law. He played a major role in denying undocumented minors abortions. Bowman was later appointed to the role of principal advisor to the director of the Office of Civil Rights.
Steven Wagner was made the acting assistant secretary for the Administration for Children and Families, which oversees the Office on Trafficking in Persons; the Administration on Children, Youth and Families; and the Office of Refugee Resettlement. In 2011, Wagner wrote a column for National Review criticizing the Obama administration for not awarding the U.S. Conference of Catholic Bishops a grant due to their refusal to provide family planning services to trafficking survivors. Wagner referred to the provision of contraception to victims of human trafficking as “tantamount to aiding and abetting the crime of exploitation.”
Roger Severino, director of the HHS Office of Civil Rights, is charged with interpreting whether or not the department and organizations receiving federal money are in compliance with the law. Before joining HHS, he directed the DeVos Center for Religion and Civil Society at the Heritage Foundation, an organization dedicated to promoting conservative public policy. He has referred to efforts to protect transgender people from discrimination as an “abuse of power” and claimed the LGBT-inclusive nondiscrimination protections in Section 1557 of the Affordable Care Act were illegal.
HHS is not the only department to have ideological extremists as appointees under Trump. The Justice Department’s acting assistant attorney general for the Civil Rights Division, John Gore, previously defended the University of North Carolina school system in court after the Obama administration sued it over HB2, the state’s anti-trans bathroom bill, and has defended states with voting restrictions that targeted minority voters. Under the direction of Secretary of Education Betsy DeVos, the Department of Education has rolled back protections for transgender students. The DeVos family’s foundation has given money to many anti-LGBTQ organizations, including Focus on the Family, Family Research Council, and the National Organization for Marriage.
Pam Pryor, the 2016 Trump campaign’s leader of “faith and Christian outreach,” currently serves as acting Assistant Secretary for International Organization Affairs in the State Department, a role in which she oversees U.S. engagement at the United Nations and dozens of other international organizations. As part of the campaign, she was credited with smoothing over relations between Trump and evangelical voters. She served as the main contact for the campaign’s evangelical advisory board, which LGBTQ Nation described as “chock-full of religious right-wing Christian extremists.”
After Trump took office, the advisory board was kept intact and given an unprecedented level of access to and influence over him, much of which has been credited to Prior. Prior herself has tweeted that “killing unborn baby girls is a horrific assault” and that there is “only one choice” for President – Trump – to “protect life.” Finally, former Kansas Governor Sam Brownback was tapped to serve as the State Department’s Ambassador at Large for International Religious Freedom.
As governor, Brownback rescinded nondiscrimination protections for LGBTQ state employees; issued an executive order prohibiting the Kansas state government from taking action against religious organizations that refuse to provide social services or charitable services to same-sex couples; and signed legislation allowing university groups to exclude LGBTQ students while still receiving university funds.
Trump will continue to put such zealots in positions of power unless he is voted out of office.
However, while it will certainly help if Trump is gone, it won’t entirely fix the problems I have discussed in this series. There are also structural problems that have existed across administrations.
The most obvious one is that, as I have already discussed in this article, the original policy of requiring permission from ORR for unaccompanied minors to get abortions was begun under Bush and kept in place under Obama. While different administrations have implemented this policy differently, the fact that the policy was kept in place at all, even under a Democratic administration, shows that simply getting a particular president out of office won’t be enough to fully fix the problem.
In addition to this policy, both this and previous administrations have given grants for the caring of unaccompanied minors to religious organizations who refuse to provide the minors in their care with abortions or contraception.
In June 2008, it was reported that Commonwealth Catholic Charities of Virginia, which received federal funding, had fired four social workers for helping a 16-year-old unaccompanied minor in its custody to get an abortion and contraception. The executive director of the Commonwealth of Catholic Charities defended the group’s actions by claiming that facilitating access to abortion and contraception is “contrary to basic teachings of the Catholic Church.”
In the Jane Doe case, the ACLU initially tried to attach Doe’s case to a lawsuit it filed in June 2016 against the Obama administration for placing unaccompanied minors in the care of organizations that refused on religious grounds to provide them with access to, or even information about, abortion or contraception. One of these organizations was the United States Conference of Catholic Bishops, which received millions of dollars from the federal government that it then distributed to subgrantees to care for unaccompanied minors.
In February 2015, the administration had issued rules requiring such organizations to provide minors with these services. These rules contained an exception whereby if an organization had a religious objection to such services, ORR could provide them itself or transfer the minor requesting them to the care of an organization that did not have such an objection. However, the USCCB objected even to that arrangement.
The ACLU objected to the transfer arrangement as well, arguing that “[s]uch transfers delay the young person’s access to the requested healthcare, unfairly stigmatize her for choosing to terminate the pregnancy, and uproot her from the support network developed at her initial placement, including friends, social workers, mental and physical health professionals, teachers, and lawyers assisting with asylum or deportation proceedings.”
The ACLU also contended that the government would avoid placing minors who have requested these services in the first place, even if such a placement would otherwise be in their best interest: “ a young woman who has requested an abortion may be forced into a program that is already operating at capacity, far from any family members she has in the United States, and/or far from the reproductive health care clinic performing her procedure.”
In 2009, the ACLU filed a similar suit against the government for giving millions of dollars annually to USCCB to distribute to organizations providing services to trafficking victims under the federal Trafficking Victims Protection Act. But based on its religious beliefs, USCCB prohibits its subgrantees from using the funds to provide victims with (or even refer them for) contraception or abortion services.
In 2012, a federal judge in Massachusetts ruled a religious institution does not have the right to use government funds to impose its beliefs on others, but the government appealed the decision.
In 2013, the appeals court dismissed the case as moot since the government had declined to renew USCCB’s contract.
All of this goes to show that the problem isn’t unique to one party or one administration, and simply getting a particular president out of office won’t fully fix it.
The best advice I can give, then, is that no matter who’s in office, we need to hold our government accountable for its actions. After all, it’s doing all of this with our tax dollars and in our name.
Jane Doe’s statement
I hope I’ve done a good job with this series, detailing the horrors these girls have had to face. In the end, though, it isn’t my story to tell. I would like to end this series with the statement from Jane Doe that was released after she got her abortion:
“My name is not Jane Doe, but I am a Jane Doe.
I’m a 17-year-old girl that came to this country to make a better life for myself. My journey wasn’t easy, but I came here with hope in my heart to build a life I can be proud of. I dream about studying, becoming a nurse, and one day working with the elderly.
When I was detained, I was placed in a shelter for children. It was there that I was told I was pregnant. I knew immediately what was best for me then, as I do now – that I’m not ready to be a parent. Thanks to my lawyers, Rochelle Garza and Christine Cortez, and with the help of Jane’s Due Process, I went before a judge and was given permission to end my pregnancy without my parents’ consent. I was nervous about appearing in court, but I was treated very kindly. I am grateful that the judge agreed with my decision and granted the bypass.
While the government provides for most of my needs at the shelter, they have not allowed me to leave to get an abortion. Instead, they made me see a doctor that tried to convince me not to abort and to look at sonograms. People I don’t even know are trying to make me change my mind. I made my decision, and that is between God and me. Through all of this, I have never changed my mind.
No one should be shamed for making the right decision for themselves. I would not tell any other girl in my situation what they should do. That decision is hers and hers alone.
I’ve been waiting for more than a month since I made my decision. It has been very difficult to wait in the shelter for news that the judges in Washington, D.C., have given me permission to proceed with my decision. I am grateful for this, and I ask that the government accept it. Please stop delaying my decision any longer.
My lawyers have told me that people around the country have been calling and writing to show support for me. I am touched by this show of love from people I may never know, and from a country I am just beginning to know – to all of you, thank you.
This is my life, my decision. I want a better future. I want justice.”