A federal judge ruled Wednesday that a pregnant, undocumented teenager under federal custody has the right to access abortion services in Texas. Jane Doe, as she's referred to in court filings, is expected to attend a mandatory abortion counseling appointment tomorrow and have the abortion procedure on Friday or Saturday.
The pregnant 17-year-old undocumented immigrant is at the center of a legal dispute over whether unaccompanied immigrant minors have the right to an abortion in the United States.
According to the American Civil Liberties Union, the Trump administration was forcing Doe to continue carrying her pregnancy against her will. She is believed to be 14 and a half weeks pregnant, and Texas law would only allow her to terminate her pregnancy before 20 weeks.
The ruling addresses a class action lawsuit, filed Friday by the ACLU, seeking a temporary restraining order that would allow Doe to access her "judicially approved abortion" as well as a preliminary injunction to prevent the federal government from blocking abortion access for other unaccompanied immigrant minors. The ACLU filed the suit against the U.S. Department of Health and Human Services and the heads of two divisions within the department: the Administration for Children and Families and the Office of Refugee Resettlement.
Only the first request was granted Wednesday by U.S. District Judge Tanya S. Chutkan at the U.S. District Court for the District of Columbia. She ordered that the defendants should transport or allow Jane Doe to be transported to her abortion appointments "promptly and without delay."
During the hearing, according to the Washington Post, Chutkan said that the federal government seemed to be presenting Jane Doe with one of two options: returning to the country she fled to try to terminate her pregnancy or have the baby against her will. “I am astounded by that position,” Chutkan said.
The judge also noted that the teenager had legal authorization for the procedure and could cover the expenses herself, so all the government had to do was process the paperwork to let her visit the clinic, just as they would if she needed to have her tonsils removed, according to the Washington Post.
The ACLU's argument in the lawsuit is that the Trump administration, through the Office of Refugee Resettlement, has adopted a policy that directly prevents unaccompanied immigrant minors from obtaining abortions – a constitutional right in the United States. "This is the federal agency with Trump appointees making this decisions," said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, in an interview with The Texas Tribune last week.
The shelter was under orders from the Office of Refugee Resettlement not to allow Jane Doe to access abortion and refusing to transport the minor themselves, said Amiri. She added that the agency was effectively "holding her hostage."
During the Wednesday hearing, lawyers for U.S. Attorney General Jeff Sessions argued that undocumented minors form other countries don't have the right to get an abortion in the United States if it's not a medical emergency, according to the Washington Post.
“I respectfully disagree that she’s entitled to an abortion” facilitated by the government, said Scott Stewart, a deputy assistant attorney general, according to the Post. In court filings, the Trump administration argued that it has “strong and constitutionally legitimate interests in promoting childbirth, in refusing to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody.”
In response to ACLU's suit, Texas Attorney General Ken Paxton filed an amicus brief in the U.S. District Court for the District of Columbia to defend "the federal government’s refusal to comply with an unlawfully-present minor alien’s request to have an abortion in Texas," according to a Wednesday news release sent out by his office. Attorneys general of Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma and South Carolina joined Texas in the brief.
“An unlawfully-present alien with no substantial ties to this country has no constitutional right to abortion on demand,” Paxton said in the release. “Texas has a legitimate and substantial interest in preserving and promoting fetal life. Texas must not become a sanctuary state for abortions.”
After being caught by immigration authorities, Jane Doe was sent to a shelter in Brownsville, where she currently sits in the custody of the Office of Refugee Resettlement, a federal office responsible for refugees and unaccompanied undocumented minors. Attorneys working on the case claim that both ORR and the shelter prevented her from attending pre-abortion medical appointments, instead forcing her to go to a crisis pregnancy center, where she received counseling against the procedure, and to undergo unnecessary sonograms against her will.
Doe already had the court authorization required for the procedure itself, the problem was her "captivity", said Susan Hays – legal director of Jane's Due Process, a nonprofit that provides legal representation for pregnant minors in Texas – who is also working on the case. Under Texas law, minors need their parents' permission or a court order to get an abortion.
Paxton also filed an amicus brief with a U.S. District Court in San Francisco last week. In an Oct. 11 hearing, the ACLU tried to add Doe to a June 2016 case against the federal government – then run by the Obama administration – for allegedly allowing some religiously affiliated shelters to impose their religion on minors by prohibiting their access to abortion. But the California judge, Laurel Beeler, denied the request, arguing that Doe didn't have legal standing to join that case because Doe is in Texas.
Texas is home to 45 shelters operated by the Office of Refugee Resettlement for unaccompanied immigrant minors, nearly half of the 100 facilities the office maintains nationwide.
Doe's attorneys argue that the shelter where she is living is an unsafe place because the staff is denying her medical care and emotionally abusing her. "She is being abused both physically, by denying her access to medical care, and emotionally, by the way they are haranguing her and trying to break her down psychologically because she wants an abortion," said Hays, adding that she was also forced to talk to her mother and to go to a crisis pregnancy center against her will.
Based on those allegations, Jane's Due Process filed a separate lawsuit in Texas that also aims to get Doe abortion access. Once the current situation is settled, Doe's legal team will consider asking for her removal from the shelter. "At this stage our focus is getting her that abortion, that's the most critical thing for her emergency health care. After that we'll start shifting to her short term welfare," Hays said.
