Editorial: The U.S. government can’t hold undocumented pregnant teens hostage when they want an abortion

A procedure room at Whole Woman's Health of San Antonio, on Feb. 9, 2016, in San Antonio, Texas.
(Eric Gay / Associated Press)

Somewhere in Texas, a 17-year old girl who fled her abusive parents in Central America sits in a shelter in federal custody. She is an undocumented and unaccompanied minor. She is also about 15 weeks pregnant and has been trying for several weeks to get an abortion. But the Department of Health and Human Services officials who oversee the custody of unaccompanied minors have tried everything they can to stop this teenager from getting one.

She was ushered into an anti-abortion crisis pregnancy center where, according to her lawyers at the American Civil Liberties Union, she was forced to undergo an ultrasound for no medical purpose and then subjected to the center’s (unsuccessful) attempts to dissuade her from terminating her pregnancy. Over the teen’s objections, officials called her mother and disclosed the pregnancy. And when her lawyers won an order Wednesday from a U.S. District Court judge instructing the department to let her have the abortion, the federal government filed for an emergency stay. It was granted Thursday, pending a court hearing Friday morning.

Pregnant women in prison who request an abortion get treated better than this.

It is unconscionable that the federal government would so flagrantly undermine the rights of a person in its custody. The girl, known in court papers simply as Jane Doe, may not be here legally, but, while she is here, she has a constitutional right — like every other pregnant girl or woman in the United States — to a legal abortion. Even U.S. District Judge Tanya Chutkan, who ruled Wednesday that Doe could get the abortion, shook her head in disbelief when a U.S. Department of Justice lawyer at the hearing would not concede that Doe has constitutional rights. Among other constitutional principles, due process and equal protection — which underlie the right to an abortion — apply to everyone in the United States, regardless of where they came from.


It is unconscionable that the federal government would so flagrantly undermine the rights of a person in its custody.

Let’s be clear, the issue here is not about Jane Doe being a minor. Girls under the age of 18 have a right to an abortion. Nor is it about her being in Texas, whose notoriously repressive anti-abortion laws include a requirement that minors have parental consent to an abortion. Doe already got a waiver of that requirement from a Texas state judge.

The issue here is how the Office of Refugee Resettlement (part of the Department of Health and Human Services) handles the care of undocumented minors in its custody. The office is legally responsible for their healthcare, which includes family planning — a particularly important issue, considering that many undocumented young women are victims of sexual assault. (In the case of Doe, her lawyers will not say how she got pregnant.)

In March, the office announced that all federally funded shelters for these minors were prohibited from taking any action that facilitates abortion access without the approval of the director of the office, Scott Lloyd, an anti-abortion activist formerly with the Catholic fraternal organization the Knights of Columbus. According to an ACLU filing on Doe’s behalf, Scott personally contacted pregnant minors to discuss their requests to have abortions. And pregnant minors who are considering abortion are required to go to crisis pregnancy centers — which are generally anti-abortion.

That’s not providing healthcare. That’s forcing a conservative ideology onto vulnerable young people in government custody.


Nor is this about barring federal dollars from subsidizing abortions. Doe’s transportation to a clinic and funding for the abortion are being provided by private sources. All the shelter operators have to do is let her leave to get the procedure. Until they do, they are effectively holding her hostage.

The government says that Doe is free to return to her home country and try to have an abortion there. But that’s not much of a choice. And her immigration case should be decided on its merits, not by her pregnancy.

Judge Chutkan’s order made it clear that federal officials have to let Doe exercise her right to an abortion promptly — time being of the essence — and put up no physical roadblocks.

The government should drop its court challenge here and abandon all coercive measures to convince girls in custody not to have an abortion. By the ACLU’s estimate, there are hundreds of pregnant unaccompanied minors in federal custody, all potential Jane Does. None of them should be deprived of the right to seek a legal abortion if they choose.

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