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 two of a series. See part one for context.
In part one of this series, I detailed Jane Doe’s struggle to get an abortion while in the custody of the Office of Refugee Resettlement (ORR). Three other immigrants also fought the government in court for the right to end their pregnancies. This article tells their stories.
In early December 2017, the American Civil Liberties Union learned about another girl in the ORR’s custody who was being denied an abortion. The teen, referred to as Jane Roe for privacy reasons, was around 10 weeks pregnant.
ORR Director Scott Lloyd had to give personal approval for a minor in the ORR’s custody to get an abortion. He refused to allow Roe to terminate her pregnancy. He forced her to tell her family about her desire to terminate. If she didn’t, the shelter would do so for her. Roe had already voluntarily notified her sister (whom she lived with prior to coming to the U.S.), as well as her potential sponsor. Both of these individuals were supportive of her decision. However, Lloyd instructed that her family be notified regardless of her wishes. In addition, Roe was made to undergo a medically unnecessary ultrasound.
Initially, Roe wanted an abortion by medication. However, the ORR blocked her from getting one until her pregnancy was past the point that would have been possible.
The ACLU returned to court on Dec. 15, requesting a court order mandating the government to let Roe terminate her pregnancy. Judge Chutkan seemed to think there was little difference between this case and Jane Doe’s. They remarked, “All right, here we are again,” at the start of the Dec. 18 hearing. Later that day, she granted a temporary restraining order forbidding ORR from obstructing Roe’s abortion. However, she gave the government time to appeal.
Sure enough, within an hour, the government had filed an appeal. They sought a stay from both the court of appeals and the Supreme Court.
It seemed this case would likely go a similar route as Jane Doe’s. However, on December 19, there was a twist in the story. The government announced it had obtained Roe’s birth certificate from her home country. The certificate showed she was 19 years old, rather than 17 years old as had originally been believed. This meant she should never have been in ORR custody.
Subsequently, the ORR turned Jane Roe over to Immigration and Customs Enforcement (which did not have a policy of denying abortions). They then released on her own recognizance, enabling her to get an abortion.
In early January, the ACLU learned about yet another girl, 17-year-old Jane Moe, who was being denied an abortion by the ORR.
Scott Lloyd refused to allow Moe, who was in her second trimester, to terminate her pregnancy. In an attempt to convince her to keep the pregnancy, Lloyd ordered that Moe listen to a letter from a couple who wanted to adopt her baby. Moe never expressed any interest in adoption, and no one had vetted the couple. According to a deposition from Lloyd, many individuals have sent the ORR a letter seeking to adopt the child of a minor seeking an abortion.
On Jan. 11, the ACLU returned to court yet again. They were seeking a temporary restraining order to force the ORR to let Moe terminate her pregnancy. By this point, Moe was approximately 17 weeks pregnant, and she wasn’t able to get an abortion for 2 weeks now. The ACLU argued that “[a]bsent a [temporary restraining order], Ms. Moe will be pushed further into her pregnancy. This would increase the risks associated with the abortion procedure, and, if the Court does not intervene, Ms. Moe will be forced to carry to term against her will.”
Days later, however, the government announced that the OR had released Moe to her sponsor, effectively defusing the case.
“While we are relieved that Jane Moe is reunited with her sponsor. The government blocked her from her abortion for more than two weeks. They only deliberately moved her out of their custody when we filed to take them to court,” Brigitte Amiri, a senior staff attorney at the ACLU Reproductive Freedom Project, said. “We continue to pursue all avenues to ensure that no other young woman like her is forced to continue a pregnancy against her will for purely political reasons.”
One more girl fought the Trump administration for the right to terminate her pregnancy. When the ACLU filed for a court order to force the ORR to let Jane Roe get an abortion, they simultaneously requested one for another immigrant, Jane Poe. Her case is the most horrifying of all.
Authorities apprehended seventeen-year-old Jane Poe while trying to cross the Mexican border into the U.S. The government took her into custody, at which point she found out she was pregnant and requested an abortion. Initially, she believed she was eight weeks pregnant from consensual sex with her former boyfriend. However, her first prenatal appointment revealed she was actually 20 weeks pregnant. She then realized the pregnancy was the result of a sexual assault.
At this point, she again requested a termination. She even disclosed to a doctor that she would rather harm herself than carry the pregnancy to term. Based on these threats, the shelter she was staying at activated a safety plan and began to monitor her.
Scott Lloyd required Poe to tell her her family about her pregnancy and decision to terminate. During the notification session, Poe’s mother and uncle (her potential sponsor) threatened to “beat” her should she the pregnancy. Due to this, she caused her to withdraw her request for an abortion. A few days later, though, she renewed her request to terminate the pregnancy.
However, Lloyd decided Poe wasn’t able to give “informed” consent. He insisted she jump through many hoops. Lloyd wanted to decide she “knew what she was asking for.” He made her have an information session to gain “a proper understanding of the development of her baby” and of the abortion procedure. He instructed that healthcare officials read her a detailed and gruesome description of the procedure from a Supreme Court case. Lloyd later testified in a deposition that he never before required a minor to be read a description of a medical procedure from a court case outside of the context of abortion.
He also forced her to receive a pamphlet from Texas containing information about the risks of abortion. The pamphlet contained formation pertaining to “the ability of unborn babies to feel pain.” This pamphlet is most likely “A Woman’s Right to Know,” an anti-abortion pamphlet that the Texas government requires women to read before they get abortions (Poe was not in Texas). It contains inaccurate information and tries to convince women to carry their pregnancies to term.
Finally, Lloyd instructed ORR’s child welfare specialist to meet with Poe. According to Lloyd’s deposition, she spoke with Poe “to make sure that she’s aware of her options and that she has informed consent about the procedure.” The specialist also offered Poe a graphic illustration of an abortion at 23 weeks, which she declined to view.
After all of this, though, Lloyd still refused Poe an abortion. He argued that abortions after rape are the result of “the dubious notions that it is possible to cure violence with further violence” and that “[t]he child – the one who is destroyed – is not an aggressor. The aggressor… was the rapist.” He also argued that “[i]t is possible, and perhaps likely, that this young woman would go on to experience an abortion as an additional trauma on top of the trauma she experiences as the result of her sexual assault.” At this point, Poe was almost 22 weeks pregnant and was quickly approaching the legal cut-off point for abortion in the state she was in.
On December 18, Judge Chutkan ordered the government to let Poe get an abortion in the same emergency restraining order she issued for Jane Roe. But, once again, she stayed the order for 24 hours.
However, for unknown reasons, the Justice Department chose only to appeal in Roe’s case, allowing Poe to get her abortion.
This should have been the end of Jane Poe’s story. Unfortunately, Scott Lloyd apparently decided to retaliate against her for terminating her pregnancy.
When Judge Chutkan issued the temporary restraining order for Roe and Poe, she put in a provision prohibiting the government from divulging information about their abortions “to anyone.” After both girls underwent their procedures, the ACLU asked Chutkan to extend the restraining order by continuing to prevent the government from disclosing their abortion statuses.
However, the government decided to oppose the ACLU’s motion, arguing that, as Poe’s custodial “parent,” it should be able to share information about her abortion with medical professionals and to “vet potential sponsors.” Recall that Poe’s potential sponsor (her uncle) had threatened to physically harm her if she had an abortion. Even more shocking, the Justice Department also argued that the ORR, a government agency, should have the “freedom of speech” to disclose private medical information about a minor in their custody that could put her at risk of physical abuse.
Fortunately, Chutkan did grant the ACLU’s request. However, this whole episode serves to show how far Scott Lloyd and the Trump administration will go to punish girls for seeking abortions.
Jane Doe, Roe, Poe, and Moe were all able to terminate their pregnancies. Unfortunately, there is still no blanket court order preventing the ORR from denying abortions. Thus, the ACLU will have to keep going to court to get restraining orders for each individual girl it learns about. But, they remain determined to end the ORR’s practice of denying abortions once and for all.
Brigitte Amiri, a senior staff attorney with the ACLU Reproductive Freedom Project, said: “We are pleased that these two young women are able to finally get the care they need. But the government’s policy is still in place. These two cases show how the government continues to abuse its power by denying abortion access. The ACLU will keep fighting until this dystopian policy is struck down, and we have justice for every Jane.“