Abortion banned for girls in U.S. custody

Immigration policy revealed in ACLU case

A flurry of documents in a San Francisco court case has disclosed a previously unknown Trump administration policy, in effect since March: a ban on abortions for pregnant girls who entered the United States alone and are in immigration custody.

The policy appears to be illegal, U.S. Magistrate Laurel Beeler said Wednesday, because all women in the United States — including prisoners and immigrants, documented or undocumented —

have a constitutional right to abortion.

“The government may not want to facilitate abortion, but it cannot block it,” Beeler said. “It is doing that here.”

But Beeler said the lawsuit in her court, challenging another set of restrictions on abortion and contraceptive care for minors in immigration facilities, could not be expanded to cover the newly revealed Trump administration policy. She said she lacked authority to order the government to allow a 17-year-old girl, now held in a federally supervised immigration shelter in Texas and identified only as Jane Doe, to visit the doctor who has agreed to perform her abortion.

The American Civil Liberties Union, which had sought to intervene on behalf of Jane Doe, filed a new suit Friday in Washington, D.C., challenging the abortion ban for all pregnant girls who are held in the government-funded shelters. The ACLU said there are hundreds of such girls every year in those shelters.

The shelters house young people who entered the U.S. alone and without documentation. Most remain for several months and then are placed with U.S. family members. Others are returned to their homeland.

Under the policy implemented in March and first aired in court in the San Francisco case, shelters cannot release minors for abortionrelated services without approval of the U.S. Office of Refugee Resettlement.

Scott Lloyd, director of the office, has said he will allow release only for “pregnancy services and life-affirming options counseling.” To clear up any doubts, said Susan Hays, legal director of the Texas abortion-rights group Jane’s Due Process, Lloyd told a staffer at one of the shelters, “My priority is unborn children, and there will be no more abortions.”

Instead, the girl’s lawyers said, pregnant minors in the shelters are ordered to visit religiously sponsored “crisis pregnancy centers” where they are shown fetal sonograms, warned of the supposed dangers of abortions and pressured to give birth. In addition, Lloyd’s office contacts the girls’ parents in their homelands to tell them their daughters are pregnant. And Lloyd himself has visited shelters to try to talk individual residents out of having abortions.

The federal office has refused to allow Jane Doe, now 14 weeks pregnant, to leave the Texas shelter for an abortion since Sept, 28, the date of her first appointment. She was taken to a crisis pregnancy center for antiabortion counseling, and Lloyd’s office told her mother the girl was pregnant — an action that Hays described as heartless.

Before the girl fled her home country, Hays said, her parents learned that her older sister was pregnant, and “beat her with wooden sticks and a cable until she miscarried.”

Jane Doe entered the United States in early September and was apprehended and placed in a shelter, where she learned she was pregnant. Her lawyers are keeping her name, her country of origin and most of her background confidential. But Hays said Texas Attorney General Ken Paxton’s office, which opposes her request for an abortion, disclosed that she is being held in the Rio Grande Valley near the Mexican border, home to only one abortion clinic.

“Jane Doe is a brave and persistent young woman who has already been forced by the Trump administration to delay her abortion for weeks,” said ACLU attorney Brigitte Amiri. “The government is holding her hostage so that she will be forced to carry to term against her will.”

The ACLU filed its initial lawsuit in June 2016 in San Francisco, challenging the government’s practice under then-President Barack Obama of placing young immigrants in shelters run by governmentfunded religious organizations, which deny access to contraception and abortion.

After learning about Jane Doe’s case and the underlying policy last month, the ACLU sought to bring her into its San Francisco suit and obtain a court order allowing an abortion Oct. 13, when her next appointment was scheduled. But Beeler, while saying the refugee office had “no justification” for its refusal, concluded she had no jurisdiction over the government’s actions in another state on an issue that wasn’t closely related to the original suit.

While the San Francisco suit continues, the ACLU filed its new suit in a Washington, D.C., federal court, which would have authority to rule on the administration’s actions anywhere in the country. The suit seeks a court order allowing Jane Doe to have an abortion this week.

More broadly, the suit seeks an injunction that would require the federal refugee office to allow pregnant girls to seek abortions and would end the mandatory visits to the antiabortion centers and the contacts with the girls’ parents.

Federal officials violate girls’ constitutional right to privacy “by wielding a veto power over their abortion decisions, and obstructing, interfering with or blocking access to abortion,” ACLU lawyers said.

The Justice Department has not filed arguments yet in defense of the administration’s policy, saying only that Jane Doe’s rights were not being violated because she was free to leave the shelter and return to her homeland. But a group of seven states, led by Texas, filed arguments in Beeler’s court saying undocumented immigrants in U.S. custody have no right to an abortion.

Ordering the government to free Jane Doe to terminate her pregnancy “would create a right to abortion for anyone on earth who entered the United States illegally, no matter how briefly,” Texas lawyers told the San Francisco magistrate. In that case, the office argued, “it is hard to imagine why she should be denied any other constitutional rights — such as the Second Amendment right to keep and bear arms.”

The ACLU countered, and Beeler agreed, that the right to abortion is covered by the guarantee of due process of law, which is provided, under the Constitution, to any “person” in the United States, and not just to U.S. citizens or legal immigrants. The issue is likely to be raised again if the case reaches higher courts.