Update: Late Friday, the federal appeals court in D.C. denied Jane Doe’s plea to require the federal government to release her to get an abortion. In a 2-1 decision, the court gave the government until October 31st to find someone to be legally responsible for Jane Doe – a “sponsor” in immigration law terminology – who could take her to get the procedure. If there is no sponsor by then, Jane Doe can go back to court to try to force the government’s hand again. Because this decision further delays her ability to access her constitutional right and forces her to continue her pregnancy against her will, on Sunday night the ACLU asked all members of the D.C. court (not just the three who initially heard her case last week) to review the case. The court has given signs it will act quickly on this request.
Imagine you’re a president who built your campaign around extreme positions with respect to immigration, particularly undocumented immigrants. You’ve talked endlessly about deportation and led cheers about building a massive border wall. You’ve increased Immigration and Customs Enforcement sweeps and tried to impose a travel ban for a large number of refugees and new immigrants to the country.
Now imagine you’re also a president who, despite having previously said you were “very pro-choice,” has staked your current political career on appealing to right-wing fundamentalists, including your fanatically anti-abortion VP. You’ve appointed anti-abortion federal judges, including a Supreme Court justice who just about everyone believes would happily vote to overturn Roe v. Wade. You’ve appointed an attorney general who has called Roe “one of the worst, colossally erroneous Supreme Court decisions of all time.” You’ve restricted birth control, limited international aid to family planning organizations and gutted teen pregnancy prevention programs.
So now imagine a case in which you have the opportunity to put in action all of your anti-immigrant and anti-abortion bona fides. It would be the perfect vehicle to show just how cruel you can be to people coming to the U.S. from elsewhere while also re-creating an aspect of the Handmaid’s Tale in modern-day America.
If you’re President Donald Trump, that opportunity is here, and it’s the case of Jane Doe, a 17 year old who crossed the U.S.-Mexico border about six weeks ago and is being held in federal custody. The Office of Refugee Resettlement (ORR) controls the Brownsville, Texas, shelter where Jane Doe currently resides. Normally, minors in ORR shelters are released after a short period of time, once ORR determines their status and figures out what to do with them.
Jane Doe is different, though: She’s pregnant and wants an abortion. In Texas, as in many other states, minors do not have complete autonomy to get such a procedure. Instead, they have to get the consent of a parent or legal guardian, or, if the minor can’t do that – either because she doesn’t feel safe or comfortable doing so, or because her parents aren’t available – she can ask a judge to give her that permission.
Thanks to the fantastic group Jane’s Due Process, which provides legal and practical support to young women in Texas seeking an abortion, Jane Doe was able to fulfill that part of the Texas law. Her parents are not available, so the organization took her before a state judge, who gave her an order permitting her to get an abortion. That happened over three weeks ago.
With that hurdle out of her way, all Jane Doe needs is for ORR to take her to an abortion provider. Normally, ORR’s policy is that it transports minors needing medical care to the closest facility, which it is constitutionally required to do because people in custody cannot seek out medical care on their own.
However, for abortion, ORR under President Trump now has the opposite policy. As Rewire has reported in excellent detail, President Trump appointed a new director for ORR, Scott Lloyd. Under Lloyd’s leadership, ORR’s policy is now that it “should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming counseling.” Lloyd’s rationale for doing so is that “the unborn child is a child in our care.” Handmaid’s Tale indeed.
Following that policy, ORR not only blocked Jane Doe from getting an abortion, but also took her to a fake abortion clinic. Fake clinics, sometimes called crisis pregnancy centers, often pose as abortion clinics but instead give women false information about abortion and their pregnancy and then steer them away from choosing abortion. They are sometimes misleadingly named and intentionally located to confuse women into thinking they are going to an abortion clinic. At many of them, personnel without medical supervision will conduct ultrasounds and then advise women they are further along in their pregnancy than thought (so they think it’s harder to get an abortion). In Jane Doe’s case, at this fake clinic, she was forced to view an ultrasound, as well as to receive counseling against her medical interests. ORR also then called Jane Doe’s mom and informed her about the situation, even though Jane Doe had told the agency her mom abused her in the past. Despite all of this, Jane Doe was “unwavering” in her decision.
Thankfully, legal help eventually arrived to help Jane Doe and push back against the Trump administration. The ACLU filed suit in federal court claiming Jane Doe’s constitutional rights were being violated and asking for an immediate order requiring ORR to take her to get an abortion.
The federal government’s argument in response flies in the face of well-settled law about abortion and constitutional rights for non-Americans: It claimed it has an interest in women giving birth. While that is correct under Supreme Court precedent, that government interest is outweighed by women’s constitutionally recognized right to terminate a pregnancy, which the government cannot block. The government also claimed women like Jane Doe do not have constitutional rights because they are in the U.S. unlawfully. However, this argument is also not supported by the Constitution, which very clearly states that the protection forming the basis of the right to abortion, “due process,” is granted to a “person,” not just a citizen. The Supreme Court has consistently recognized this, and has applied the Fifth and 14th Amendment guarantees beyond American citizens.
On Wednesday, a federal district judge in Washington quickly sided with Jane Doe. The judge issued an order requiring ORR to take Jane Doe to get her pre-abortion counseling on Thursday – which did happen – and then to get her abortion on Friday or Saturday. (Texas has a 24-hour waiting period requirement.) The court gave ORR no wiggle room in supporting Jane Doe’s constitutionally protected choice.
However, at the same time, the Trump administration filed an emergency appeal. On Thursday afternoon, the federal appeals court in Washington, D.C., put part of the lower court’s decision on hold. The court held an emergency hearing Friday morning, at which the judges gave no indication of how or even when they would rule in the case.
For Jane Doe, this situation has already dragged on too long and is now being extended even further. Every minute the D.C. court waits to decide the case prolongs the agony of being denied basic medical care she has a right to receive. Anything less than ruling in her favor immediately will delay her care beyond this weekend and into next week (or longer). She is only weeks away from being barred by law from having an abortion in Texas, which prohibits abortions after 20 weeks.
Enough is enough. Jane Doe is a teenager in custody in a foreign (to her) country who is being used as a political football and being forced to continue her pregnancy against her will. The courts must put an end to the Trump administration’s dream case and call it what it is: a gross violation of human rights.