Allie Carter (CMC ’19)
On October 25th, 2017, an undocumented pregnant minor being held under federal custody finally received the controversial abortion she had been approved for a month prior, thanks to a federal appeals court decision. Lawyers and advocates for the undocumented minor have argued that federal officials took extreme measures to hinder her and other undocumented pregnant minors from receiving abortions. At the intersection of two political issues in America– illegal immigration and abortion– the case is exemplary of the varying perspectives on both issues. Further, the case has inspired new debate over abortion rights and issues regarding immigration and the rights of illegal aliens when in the U.S.
Referred to as “Jane Doe,” the undocumented minor initially received approval for the abortion on September 25th from the state of Texas where she was being detained. However, Texas law requires parental permission or a court order for a minor to have an abortion. The Federal Department of Health and Human Services (DHHS) prohibited Jane Doe from leaving the federally funded shelter she had been residing in under federal custody to receive the abortion for unknown reasons. A subset of the DHHS, the Office of Refugee Resettlement, also would not transport Jane Doe or allow her to leave with court-appointed guardians to take her to an abortion clinic. Rather, Jane Doe was involuntarily brought to a Crisis Pregnancy Center to undergo counseling with intent to discourage her from having an abortion.
Jane Doe’s lawyers accused federal officials of essentially “holding her hostage” by preventing her abortion, requiring a sonogram she did not desire, and compelling counseling with the religiously affiliated and staunchly pro-life Crisis Pregnancy Center. Jane Doe’s lawyers additionally accused federal officials of defying the state court’s order that approved her abortion. Jane Doe’s case is not atypical, as the Department of Health and Human Services has actively prevented abortions for other girls at federally funded shelters.
ACLU lawyers working on the case and the Justice Department differed over the federal government’s role in permitting Jane Doe’s abortion. The ACLU held that Jane Doe had the constitutional right to receive an abortion and that the federal government was coercively forcing Jane Doe to proceed with her pregnancy. The Trump administration held that the federal government is not legally obligated to enable a minor’s abortion in its custody and that if Jane Doe wanted an abortion, she could return to her home country. However, as abortion is illegal in Jane Doe’s unidentified home country in Central America, this would be legally impossible. Additionally, Jane Doe expressed that she did not want her parents to know of her pregnancy because of previous parental violence against her pregnant older sister.
Attorney generals from fourteen states filed briefs contending that hindering abortions for undocumented minors compromises the rights states have to institute consent requirements, though they do not deny Jane Doe’s federal right to an abortion. Eight of the 14 states filed briefs endorsing the federal government’s argument. Texas Attorney General Ken Paxon argued that undocumented immigrants “do not have a right to abortion on demand.” Additionally, the Justice Department claimed that Jane Doe was putting herself in this situation by not returning to her home country. Written in court documents, Justice Department lawyers said that Jane Doe “may elect voluntary departure to end her federal custody, which would eliminate the alleged ‘restriction’ or ‘obstacle’ of which she complains.” Ultimately, the Justice Department felt Jane Doe was not denied her legal rights because the state had the right to regulate abortions for undocumented minors.
The ACLU requested that the full appeals court quickly heard the case, given the stage of Jane Doe’s pregnancy at the time. Ultimately, Judge Patricia Millett ruled that Jane Doe shared the same constitutional rights as a U.S. citizen has to abortions and ordered Jane Doe’s release from the Crisis Pregnancy Center. Millet cited Supreme Court precedents from 1992 and 2016 that prohibits governments from putting an “undue burden” in the way of an elected abortion. The referenced undue burden, in this case, was how Texas treated Jane Doe because of her status as an undocumented immigrant.
Further, Millett noted that Jane Doe had secured private funding for the abortion and fulfilled the approval required under Texas law to have the abortion without parental approval. Appointed by President Obama, Millet described the case empathetically by saying “Jane Doe’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her destiny that life seems to have so far denied her.” Texas had an obligation to respect Jane Doe’s pursuit of life and liberty, rather than infringing upon it.
Judge Brett Kavanaugh, considered to be one of President Trump’s potential nominees for the next Supreme Court vacancy, dissented with two other judges in the case. Kavanaugh referenced precedents supporting that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Contrary to the majority opinion, the dissenting opinion held that Texas did not have an obligation to respect Jane Doe’s pursuit of life and liberty to this extent, as justified by the Due Process Clause.
Even though Jane Doe’s situation has been resolved, discourse between the ACLU and the federal government remains unresolved. The ACLU plans to continue with a class action lawsuit in the D.C. District Court, hoping to inspire legislation that bans the federal government from inhibiting abortions for other undocumented minors. The questions raised by this case are especially poignant, given the perspective the current administration has on undocumented immigrants. In raising the question of who constitutional rights apply to, one cannot help but wonder why political opinions and partisan shifts are affecting how laws regarding immigration, refugees, and foreigners are being carried out.
Further, as Texas challenged the federal government’s sanctions regarding immigration, this case exemplifies the existing divide between state and federal government. There have been numerous accounts of state governments directly defying federal immigration sanctions, such as those states who have introduced sanctuary cities as areas where interactions between local police and federal immigration agents are limited. As immigration policy changes over the upcoming years, states may continue to challenge the role they have in enforcing or adhering to said policy.