The Jane Doe Abortion Case Is Just The Troubling "Tip Of The Iceberg"


Undocumented, pregnant, and running out of time, the teenage immigrant known publicly only as Jane Doe finally has an answer. The U.S. Court of Appeals for the D.C. Circuit ruled on Oct. 24, that the undocumented minor must be allowed to obtain an abortion, despite the government's protests. Doe initially requested to obtain an abortion without parental consent in September, but the Office of Refugee Resettlement (ORR), the agency responsible for unaccompanied undocumented minors, blocked her request for nearly a month.

In the majority opinion, D.C. Circuit Judge Patricia Millett wrote, "Today’s decision rights a grave constitutional wrong by the government. Remember, we are talking about a child here. A child who is alone in a foreign land."

Despite the victory for Doe, who at 16-weeks pregnant was nearly out of time, (thanks to Texas's 20-week abortion ban), this ruling does not necessarily mean that ORR — or, for that matter, the Trump administration — is going to stop trying to prevent abortion for girls like her.

In fact, this may just be the tip of the iceberg when it comes to the federal government's approach to abortion.

When 17-year-old Doe arrived in the United States, pregnant, underage, and alone, having escaped from abusive parents who allegedly beat her pregnant sister until she miscarried, ORR theoretically should have helped her obtain an abortion. The ORR's chief function is "to provide for the custody and care" of undocumented, unaccompanied minors, taking into account individual needs, according to an HHS fact sheet. Importantly, this includes all necessary mental and medical health services and "ensuring that the interests of the child are considered in decisions related to the care and custody of unaccompanied children."

Instead, they ran interference, according to the ACLU's Oct. 13 memorandum.

ORR officials took her to a religiously-affiliated crisis pregnancy center, where she was made to have a medically unnecessary ultrasound. The memorandum also said that ORR also continued to refuse to facilitate her abortion both by refusing to provide transport, and refusing to let her leave. The ACLU stepped in on Oct. 10 on behalf of Doe and girls like her.

The ACLU asserted in court that the delay was causing undue stress for Doe. "She will suffer immediate and irreparable harm," they argued on Oct. 18.

Even more: Trump-appointed Director of the ORR Scott Lloyd himself was reportedly personally involved in preventing Doe, and others, from receiving medical care. The ACLU stated in court documents that Lloyd has personally contacted several minors in ORR custody thinking of terminating pregnancies, and forced them to speak to anti-abortion staffers at Crisis Pregnancy Centers. This is perhaps unsurprising, as Lloyd was a well-known anti-abortion advocate before he took over the ORR under President Trump.

A spokesman for HHS told The Washington Post,

When there’s a child in the program who is pregnant, [Lloyd] has been reaching out to her and trying to help as much as possible with life-affirming options. He by law has custody of these children, and just like a foster parent, he knows that that’s a lot of responsibility and he is going to make choices that he thinks are best for both the mother and the child.

Susan Inman, Senior Federal Policy Counsel at the Center for Reproductive Rights, told Elite Daily, "This is an abuse of power — for the agency to be using its authority in this way."

Elite Daily reached out to Lloyd several times for comment, but had not heard back by the time of publication.

But Lloyd is just one person in an administration filled with anti-abortion advocates.

ORR, an agency under the Department of Health and Human Services which was most recently run by anti-abortion, anti-contraception former HHS Sec. Tom Price, has been slowly chipping away at reproductive rights, along with the rest of the Trump administration. Per the ACLU's complaint in Jane Doe's case, HHS has implemented a policy that allows them to "wield an unconstitutional veto power" over unaccompanied minors’ access to abortion services, with ORR announcing in March 2017 that "all federally funded shelters are prohibited from taking 'any action that facilitates' abortion access for unaccompanied minors in their care."

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HHS's anti-abortion rhetoric is not surprising, given the larger pattern in the Trump administration.

As Elite Daily has previously reported, the current administration is populated by virulently anti-abortion, anti-contraceptive individuals such as HHS's Teresa Manning, and White House aide Katy Talento, both of whom have made careers out of anti-choice, anti-reproductive rights rhetoric.

Which may explain the most troubling piece of the whole puzzle — the HHS's strategic plan draft.

The 2018-2022 strategic plan will shape the department's goals, funding allocation, and how they serve the American public. Which is perhaps why it's disturbing that the draft mentions "all stages of life" — including conception — several times.

In Strategic Goal 3, for example, the plan states: "A core component of the HHS mission is our dedication to serve all Americans from conception to natural death" [emphasis added]. This language implies that embryos and fetuses are considered persons from the moment of conception, despite being in direct violation of Roe v. Wade. (Personhood, according to the majority opinion, does not include the unborn, making abortion legal.)

The addition of conception as a stage of life is new, as Jezebel points out. Under the Obama administration, the sentence read, "HHS accomplishes its mission through programs and initiatives that cover a wide spectrum of activities, serving Americans at every stage of life."

When asked to comment on the language in the draft, specifically noting the suggestion that life begins at conception, HHS Deputy Assistant Secretary for Public Affairs for Human Services Mark Weber merely stated that the plan is open to public comment until Oct. 27 and that he had "nothing else to add."

Inman says that the intersection between the strategic plan and ORR's policy was troubling.

"It is deeply worrying that the Office of Refugee Resettlement is using its time and resources and staff in this way, and this type of inappropriate intervention in somebody’s personal healthcare decision doesn’t just happen because one person picks up a phone," she says. "I think Doe — and the strategic plan — are indicative of a broader ideological shift and a disrespect for human autonomy and the decisions that women make."

"I worry that this is the tip of the iceberg," she adds.

Drew Angerer/Getty Images News/Getty Images

Perhaps most troubling, however, is HHS’s assertion that allowing Doe to have an abortion would be unconstitutional.

Asked about the legal precedent behind the ORR’s decision to prevent the minor from receiving an abortion, Kenneth Wolfe, Deputy Communications Director for HHS’s Administration for Children and Families, sent Elite Daily the same pre-written statement HHS has sent to all publications seeking comment:

The United States District Court made a troubling ruling that exceeds the U.S. Constitution and sets a dangerous precedent by opening our borders to any illegal children seeking taxpayer-supported, elective abortions. ... Though the order overrides the policies and procedures of the Office of Refugee Resettlement designed to protect children and their babies who have illegally crossed the border, we will continue to provide them with excellent health care and protect their well-being in all our facilities.

Inman says that HHS’s attempted intervention was “blatantly unconstitutional and flying in the face of well-established precedent.” She notes neither Doe's non-citizen nor minor status bar her from constitutional protections.

Not only, she says, does HHS’s intervention violate the landmark Supreme Court case Roe v. Wade, which legalized abortion in 1973, it also violates 2016’s Whole Woman’s Health v. Hellerstedt, a case that determined that the government cannot create an undue burden for women seeking to exercise their right to an abortion.

The government argued that if Doe really wanted an abortion, she could opt for self-deportment, or "voluntary departure." When ACLU countered that, stating it would create an undue burden for Doe, the government responded that "the argument lacks merit."

When asked to explain specifically what, exactly, was unconstitutional about the court’s ruling, and upon what grounds HHS has decided to prevent access to legal abortions — Wolfe stopped responding.