After three years of arguing in court to block pregnant, undocumented teenagers in government custody from obtaining abortions, the Trump administration dropped the fight on Tuesday, announcing it had officially changed its policy.
The new policy makes clear that the Office of Refugee Resettlement, the branch of the Department of Health and Human Services that oversees undocumented minors and those seeking asylum in the US, must allow teenagers in its custody to obtain abortions. Trump’s ORR had previously refused to grant minors access to the procedure, but a series of court orders since late 2017 had forced the administration to reverse its practice and allow the teenagers to get abortions.
The Justice Department had kept the legal battle alive, although it dropped the issue of allowing the teens access to abortion last year, instead focusing its arguments on whether the government could notify a teen’s parent or guardian, over the teen’s objection, about their decision to get an abortion. The administration’s new policy prevents ORR staff from disclosing to anyone that a minor is pregnant or seeking an abortion except in emergency situations.
The latest change in policy means that the Trump administration is giving up the fight altogether. The American Civil Liberties Union, which brought the lawsuit against the Trump administration, filed papers on Tuesday notifying the court that it was dropping the case in light of the new policy.
The Justice Department also agreed to pay $336,710 to the ACLU to cover its legal fees in the case.
“After three years of battling in court alongside brave young women, we are relieved that the government finally abandoned its attempts to block young people in its custody from accessing abortion,” Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project, said in a statement. "Today’s policy change rights one of the wrongs this administration has committed against immigrants in detention, but their health and safety are still very much at stake."
The case began in October 2017, when the ACLU filed an emergency lawsuit on behalf of a 17-year-old, referred to in court filings as Jane Doe, who was being held in a federally funded shelter in South Texas. She was about 15 weeks pregnant and had been fighting to obtain an abortion since she was apprehended at the US–Mexico border more than a month earlier, but the shelter workers prevented her from accessing the procedure due to the agency’s policy. Her lawyers argued that Doe was running out of time to get an abortion; Texas bans the procedure after 20 weeks of pregnancy.
US District Judge Tanya Chutkan quickly ordered the Trump administration to allow Doe to have an abortion. The administration fought the order but the judge ruled again in her favor, and she was able to obtain an abortion. However, Chutkan’s order only applied to Doe; over the next few months, several other teens filed individual claims that they too were blocked by ORR from obtaining abortions. The case was approved as a class-action lawsuit on behalf of all minors in that position in March 2018.
Ultimately, Chutkan entered a preliminary injunction preventing the Trump administration from blocking access to abortion care for all minors in its custody. The case went up to the Supreme Court with mixed results; in June 2018, the justices dismissed an earlier DC Circuit opinion that sided with Jane Doe — meaning the decision in her case would not be used as precedent in future litigation — but otherwise allowed the case to proceed.
The Trump administration continued to press the fight; in June 2019, the DC Circuit issued an 81-page opinion concluding that the administration’s policy violated the constitutional right to abortion as determined by the Supreme Court in Roe v. Wade. The government decided not to petition the US Supreme Court to challenge that ruling. Since then, the ACLU and the Trump administration have been in negotiations over a new ORR policy that would help settle the case.
Doe released a statement via the ACLU Tuesday, saying, “After three years of waiting, I am so glad to know that what happened to me will never happen to anyone else. The decision to have an abortion is personal and belongs to each individual — no one should be shamed for making the right decision for themselves or blocked from doing so. I came to this country to make a better life for myself, and I am working on a building a life that I can be proud of. I am happy to know that my fight means that other young women like me will be able to make the decision about whether to become a parent for themselves.”
The policy in question was based on one issued by President George W. Bush’s administration in 2008, which called for “heightened ORR involvement” in serious medical procedures, specifically abortions. When the Trump administration took office, it reinterpreted and expanded that policy, instructing ORR staff to attempt to prevent minors from obtaining abortions. The administration even tried to reverse an abortion that was already underway by recommending that a minor who took the first of two pills necessary for a medical abortion be transported to a hospital to attempt to “preserve the life” of the teen and the “unborn child,” the acting head of the department at the time wrote in an email to shelter staff. When Scott Lloyd took over as the head of the division of ORR in March 2017, he ordered his staff to notify him of every pregnancy and abortion request from minors in its care.
Lloyd, who was involved in anti-abortion work before joining the Trump administration, was a controversial figure during his short tenure at ORR until November 2018, when he moved to a different office. While he was head of the agency, ORR oversaw the children who were separated from their parents at the border, kept a list of pregnancies, sometimes including the last menstrual cycle, of pregnant girls and young women in his agency’s custody to attempt to block them from obtaining abortions. Lloyd instructed shelter staff to bring several of the teenagers to anti-abortion clinics that specialize in convincing people not to get the procedure.
After testifying before Congress about the administration's child separations policy, Lloyd moved to the White House Center for Faith and Opportunity Initiatives before leaving the administration entirely in June 2019.
On Monday, Lloyd published an op-ed in the Federalist titled “How the United States Can Stop Helping Illegal Immigrants Get Abortions.” Lloyd wrote that the Trump administration’s legal team dropped the fight over allowing minors in its care to have abortions because DOJ assumed that if it were taken to the Supreme Court, Justice Brett Kavanaugh would have to recuse himself, having previously ruled on the same case as a judge in the DC Circuit court.
“The remaining justices would split along ideological lines, leaving the DC Circuit ruling in place,” Lloyd wrote, explaining the Department of Justice’s reasoning. He also added that changes on the Supreme Court, including a recent ruling in a different case related to immigration, are “new indications that [Trump] would prevail” if the administration took up the issue again.
The news comes shortly after Trump announced his pick for Supreme Court Justice Ruth Bader Ginsburg’s replacement, Amy Coney Barrett, who was a vocal opponent of abortion rights before she became a judge.
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