The Supreme Court’s recent decision to overturn Roe v. Wade could cause migrant children in U.S. government custody to lose abortion access, including in cases that involve domestic abuse, human trafficking, and rape.
While the White House is expected to soon take measures to ensure “unaccompanied minors” will have abortion access for the remainder of President Joe Biden’s term, multiple sources told VICE News, the Supreme Court’s June 24 ruling leaves the door open for a Republican president to radically restrict the reproductive rights of young migrant women in federal custody.
The Biden administration has already taken steps to prevent pregnant migrant girls from being sent to Texas, according to ORR guidance issued last October, and those already in Texas can request to be transferred elsewhere, to states where abortion rights are protected. The transfers are automatically approved unless deemed by the government “not in the child’s best interest.”
“If Trump is elected in 2024, I have no doubt that he will change the policy and try to prohibit abortion access for all unaccompanied minors, whether they are in a state that bans abortion or not,” said Brigitte Amiri, deputy director at the ACLU's Reproductive Freedom Project. “Absent an act of Congress, I don’t think there’s anything this administration can do to enshrine a policy that a future administration couldn’t change. That's the reality. People need to understand how much is fragile with abortion access in this country.”
Kids under 18 who try to enter the U.S. alone, with no parents, are typically processed by border agents and transferred to the Office of Refugee Resettlement, or ORR, an agency under the federal Department of Health and Human Services. As of July 1, nearly 12,000 children were in the ORR system, a network of secure shelters, group homes, and medical facilities spread across the country and mostly operated by private contractors.
Over the past nine months, according to federal data, the number of girls in the system ranged from 3,400 to 4,700, with average stays of 33 to 46 days, but some last weeks or months longer as ORR works to reunite them with relatives or sponsors in the U.S. while their immigration cases are decided. The intake process involves health screenings, and Bob Carey, a former ORR director during the Obama administration, said placement of a pregnant unaccompanied minor is at the discretion of officials in Washington, D.C.
"A different administration could limit the use of shelters in states that allow access to family planning services, or direct girls to states like Texas,” Carey told VICE News. “That could become a matter of explicit or administrative policy.”
The girls in ORR custody can be extremely vulnerable after enduring perilous journeys to the border. They are sometimes fleeing countries that have criminalized abortion, such as El Salvador, where women can be jailed for miscarriages. They flee gang violence and domestic abusers linked to organized crime. Some are victims of rape, with multiple human rights groups and news agencies documenting the prevalence of sexual violence against migrant women.
All of those factors can lead to circumstances in which girls in ORR custody might wish to terminate their pregnancy. The Department of Health and Human Services and ORR did not respond to requests for comment and questions about the number of abortions sought by unaccompanied minors. The ACLU’s Amiri said the most recent data available is from 2019, when around 50 girls were estimated to have requested access to services.
“They’ve suffered tremendous hardship and fled their country for different reasons,” Amiri said. “They need to be able to make the best decision for their own body.”
In the early years of the Trump era, ORR was led by Scott Lloyd, a conservative attorney who is outspokenly anti-abortion. The ACLU sued Lloyd and the Trump administration in 2017 after they tried to stop at least seven girls from getting abortions, including a 17-year-old who was blocked from leaving a federal shelter in Texas.
The 17-year-old, identified publicly as Jane Doe, spoke to VICE News in 2017 and said she was sure of her decision and had no regrets, despite pressure from the Trump administration. “I decided to do it because I don’t feel capable of being a mature woman, or being strong, or old enough to be able to take care of it,” she said. “I don’t feel sure of having a child.”
Jane Doe was sent to a “crisis pregnancy center,” where she was encouraged to keep the baby. She was also given, according to the ACLU, “a sonogram conducted by non-medical personnel against her will,” and told she would have to inform the parents she’d escaped from in her home country about her pregnancy.
In other cases, the ACLU said, Lloyd personally visited a young woman who was seeking abortion and tried stop her from going through with it; another girl was sent to an emergency room after taking an abortion pill in an effort to halt the process and save the pregnancy. One girl who became pregnant after being raped by a group of men in her home country said that she was sent to a religiously affiliated anti-abortion facility for counseling, where she was provided with “appropriate drawings to color and with Bible verses.”
In Jane Doe’s case, because Texas law requires parental consent or a judicial waiver before a minor may obtain an abortion, she received legal assistance, got an appointed guardian, and obtained the necessary paperwork, but she was still blocked by ORR from visiting a clinic.
Doe and the other girls were eventually allowed to get abortions and the ACLU won a ruling in court that, until the recent reversal of Roe v. Wade, protected other pregnant unaccompanied minors who want to terminate their pregnancies. Now it’s up to ORR to facilitate transfers not just from Texas, but a growing list of states—largely in the South and Midwest—that are effectively banning abortion.
Scott Lloyd, director of the Office of Refugee Resettlement at the U.S. Department of Health and Human Services, is sworn-in during a House Judiciary Committee hearing concerning the oversight of the U.S. refugee admissions program, on Capitol Hill, October 26, 2017 in Washington, DC. (Photo by Drew Angerer/Getty Images)
In an interview with VICE News, Lloyd, now an attorney in private practice, said he believes the Supreme Court has only enabled states to pass their own abortion laws, and it’s still up to ORR to decide how to operate under the current political climate. There’s nothing stopping the Biden administration from responding to state abortion restrictions as they arise, Lloyd said.
"My understanding is the state law would not prevent the federal program from utilizing abortion services,” he said. “It would just present a practical problem of having to move the child out of the state in order to get it."
Lloyd said that, in his view, victims of rape should not be exempted from abortion bans.
"Personally, there's a human life that’s involved regardless,” he said. “I think that the focus should be on the prevention of their rape in the first place. I’m not someone who can support the destruction of innocent human life in any circumstance, even the most tragic."
Whether it’s Trump or another Republican candidate for president in the coming election, abortion is certain to be a central issue in the campaign. And with the pressure to make the law as restrictive as possible, advocates for immigrant youth are hoping the Biden administration does everything it can possibly do to protect the reproductive rights of migrant girls in the wake of the high court’s decision in Dobbs v. Jackson.
“The Dobbs ruling creates a significant layer of additional complexity for ORR as it evaluates where to place children in its custody,” said Neha Desai, an attorney who leads litigation and policy efforts on behalf of immigrant children at the National Center for Youth Law. “I am hopeful that ORR under the Biden administration will continue to ensure access to reproductive health care, including abortion, for girls in its custody, regardless of where they are initially placed within the country.”
For Amiri at the ACLU, that means expanding the current policy that applies to Texas to other states with so-called trigger laws that kicked in after the Supreme Court’s ruling left states to decide how to regulate pregnancy. As many as 26 states are “certain or likely” to enact abortion restrictions, affecting millions of Americans.
“The policy you see now for Texas is going to have to be expanded,” Amiri said. “Anywhere a state bans abortion, ORR should not place pregnant minors. If something happens in a pregnancy and there needs to be care for an inevitable miscarriage, it’s possible the minor might not be able to get appropriate care.”
Carter Sherman contributed reporting.
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