On October 13, 2017, the American Civil Liberties Union filed an emergency lawsuit in federal court to fight on behalf of a young woman in Texas who is being prevented from accessing abortion care by the Trump administration. The ACLU of D.C. joined together with attorneys from the National ACLU and the ACLU offices of Northern and Southern California to challenge the Trump administration’s abortion ban.
Jane Doe, a pregnant teenager currently staying at a shelter for unaccompanied immigrant children in Texas, has been prevented from getting an abortion by the Office of Refugee Resettlement (ORR). She has already been subjected to egregious delays to her medical care as well as counseling and procedures without her consent:
- The Department of Health and Human Services required her go to a government “approved” counselor at a religiously affiliated, anti-abortion “Crisis Pregnancy Center,” which urged her to continue her pregnancy.
- Federal officials forced her to have a medically unnecessary sonogram against her will.
- ORR blocked her from travelling to her medical visits, even after judicial authorization and after her court-appointed attorney and guardian have offered to provide transportation to the abortion provider. She has also secured private funding for her abortion.
- Federal officials told Jane’s mother about her abortion despite her clear wishes not to tell her parents and despite Jane getting a court order under Texas law to consent to her abortion without notification of or consent from her parents. Jane did not want to involve her parents because they were physically abusive to an older sister who became pregnant.
Our client isn’t alone in suffering these gross injustices.
The ACLU’s motion for preliminary injunction describes attempts by ORR Director Scott Lloyd to personally coerce young women to carry their pregnancies to term instead of having an abortion, and to personally force them to go to religiously-affiliated “crisis pregnancy centers.”
In addition, shelters for unaccompanied immigrant children are being directed not to allow minors to seek judicial bypass for abortions or allow them to meet with attorneys, even if this is contrary to state law. In one case, a young woman was forcibly sent to an emergency room after she’d taken the abortion pill to try to prevent her from completing the abortion.
On October 18, 2017, the U.S. District Court for the District of Columbia granted a temporary restraining order prohibiting the government from interfering with Jane Doe's access to her abortion provider. The government sought an emergency stay of that order from the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument on the government's motion on October 20, 2017.
Late on October 20, a three-judge panel of the D.C. Circuit set aside key parts of the temporary restraining order and sent the case back to the district court to see if Jane Doe could find a sponsor to whom ORR could transfer custody before the end of October. Judge Millett dissented, arguing that “[f]orcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices [Jane’s] constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”
On October 22, the ACLU petitioned all 10 judges of the D.C. Circuit to rehear the case, because the 10-day delay imposed by the panel permits the government to continue blocking Jane Doe’s access to abortion while it moves forward with the complex and multi-step sponsorship process that almost certainly cannot be completed by the end of October. Meanwhile, with every day that passes, Jane Doe is forced to continue her unwanted pregnancy and moves closer to the stage of her pregnancy at which Texas law prohibits abortion entirely.
On October 24, the full D.C. Circuit Court of Appeals overruled the panel's order for additional delay to find Jane Doe a sponsor and denied the government's request to stay the district court's order that Jane Doe be allowed to obtain an abortion as soon as possible.
On October 25, Jane Doe obtained an abortion.
On November 3, while the parties were continuing to litigate at the district court over the questions whether the court should permit the case to proceed as a class action and enjoin the government’s no-abortion policy as to all unaccompanied immigrant minors in its custody, the Solicitor General of the United States sought asked the Supreme Court to review the decision by the full D.C. Circuit not to stay the temporary restraining order enabling Jane Doe to obtain her abortion. Remarkably, the government also asked the Supreme Court to consider sanctions against attorneys on the case for not having told the government in advance when Jane Doe would be obtaining her abortion – a client confidence that the ACLU was under no obligation to reveal. We opposed the government’s Supreme Court petition.
In December, the ACLU became aware of two additional unaccompanied immigrant minors in ORR custody in two additional states (other than Texas) who sought but were refused access to abortion by ORR. On December 15, we returned to court seeking another temporary restraining order prohibiting the government from blocking these young women (known as Jane Roe and Jane Poe in court papers) from accessing abortion. The government contended that because Jane Roe and Jane Poe are in the government’s care, the government is entitled to determine what it thinks is in their “best interest” and act accordingly; however, in the states in which these young women are detained, even a parent could not veto a minor’s decision to obtain an abortion. Additionally, the government’s “best interest” argument is a thin cover for its blanket opposition to abortion, reflected by its policy of blocking abortions for all unaccompanied immigrant minors in government custody.
The district court granted a temporary restraining order on the evening of December 18 barring the government from obstructing Jane Roe and Jane Poe from obtaining an abortion. Within an hour, the government filed an appeal and sought a stay regarding Jane Roe from both the court of appeals and the U.S. Supreme Court. The government did not seek a stay regarding Jane Poe, and she was able to obtain her abortion. We opposed the government’s stay application in the D.C. Circuit and were preparing to file our opposition in the Supreme Court when the government abruptly declared on December 19 that Jane Roe was 19 years old and therefore did not belong in ORR’s custody at all. Jane Roe maintains that the government is wrong about her age, but after a tense evening of negotiations, the government decided to release Jane Roe from custody entirely, subject to her later appearance in immigration proceedings. The government then dismissed its appeal and stay requests, and Jane Roe was able to obtain an abortion.
In the course of the TRO litigation, the court ordered the government to release (at the ACLU’s urging and over the government’s objection) ORR’s written reasoning for denying Jane Poe’s abortion. That document revealed that ORR Director Scott Lloyd had determined that an abortion was “not in her best interest” despite that fact that the pregnancy was the result of rape, that her mother and the person who was to serve as her sponsor threatened to beat her if she had an abortion, and that she was contemplating self-harm if she did not obtain the abortion. In Lloyd’s view, “It is possible, and perhaps likely, that this young woman would go on to experience an abortion as an additional trauma on top of the trauma she experiences as a result of her sexual assault.”
On January 11, 2018, the ACLU amended its complaint to add yet another unaccompanied immigrant minor in ORR custody in yet another state (other than the locations where Janes Doe, Roe, and Poe were held) who sought but was refused access to abortion by ORR. The ACLU immediately sought another temporary restraining order prohibiting the government from blocking abortion access for the new plaintiff (known as Jane Moe in court papers), already in her second trimester of pregnancy. On January 14, ORR released Jane Moe from its custody, into the care of a private sponsor.
On March 30, 2018, the district court certified the class and granted a preliminary injunction prohibiting the government from interfering with unaccompanied minors’ access to abortion, including medical visits, court hearings, counseling and other pregnancy related care. The injunction also prohibited the government from disclosing unaccompanied minors’ pregnancies and abortion decisions to their parents and others. The government appealed.
While that appeal was pending, on June 4, 2018, the Supreme Court denied the government’s earlier request to sanction ACLU attorneys for not having told the government in advance when Jane Doe would be getting her abortion; the Court explained that not all communication breakdowns constitute misconduct. Because Jane Doe had her abortion back in October, the Supreme Court vacated as moot the D.C. Circuit’s October 2017 en banc order to deny the stay for the temporary restraining order for Jane Doe, but the Court declined the government’s request to order all claims for injunctive relief dismissed.
The government’s appeal from the March 2018 order on class certification and the classwide preliminary injunction was argued in September 2018. In June 2019, the federal court of appeals affirmed both class certification and the injunction barring the government from obstructing unaccompanied minors’ access to abortion. The court vacated and remanded for further factual development the part of the injunction regarding disclosure.