Teenage Illegal Alien Right’s to an Abortion: The ACLU’s Lawsuit

A lawsuit over a 17-year-old illegal immigrant’s right to get an abortion has seen many twists and turns since it was brought by the ACLU a little over a month ago–the most recent of which happened only days ago. The girl in question, known only as Jane Doe in court documents, was caught crossing the border in September and learned shortly after while at an immigration detention center specifically for illegal alien minors that she was pregnant. She did not want to carry her pregnancy to term however, following Trump administration policies, the detention center refused. They instead took her to religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds of the fetus which they then showed to her.

All this is part of a policy implemented in March requiring approval from the U.S. Office of Refugee Resettlement before a shelter can release a non-citizen minor to get an abortion or abortion-related service. The director of this office, Scott Lloyd, has long been outspoken in his condemnation of abortion and women who get abortions. He has made public announcements, in the wake of the policy, that he would allow no abortions whatsoever for and only allow release for “pregnancy services and life-affirming options counseling.” Texas officials have made it clear that they also will allow no abortions.

Under Texas law, a minor requires either parental approval or court approval before receiving an abortion. However, even after receiving court approval to get an abortion, the shelter Jane Doe was staying at refused to take her to a clinic where she could get an abortion. After this, the ACLU brought a lawsuit on behalf of Jane Doe to secure her right to an abortion and challenge the policy itself.

This is a matter that has seen very little litigation, so there were quite a few eyes on the case ruling. Just weeks ago, the court ruled on the issue in favor of the ACLU–leading to a twist in the case before an appeal was brought. Let’s look at the lawsuit, the ruling and this most recent twist in order to understand what this case means for the rights of illegal aliens to an abortion.

The ACLU Lawsuit

As we discussed earlier this week, illegal aliens have quite a few constitutional rights including 1st, 4th, 5th, and Equal Protection Act protections. This, along with the obligations of the government to take care of unaccompanied minor illegal aliens–an obligation which the government has recently been found in breach of–formed the cornerstone of the ACLU’s case.

The ACLU argued that the policy violated First and Fifth amendment rights by forcing these minors to receive approval before gaining access to an abortion–something far beyond the usual constitutional protections granted to citizens under the law. This is especially true because the policy provides no explicit exceptions, even for victims of rape. They argued that this, along with forcing minors to attend religious counseling discouraging abortions and requiring them to get approval from either parents or a sponsor before getting an abortion, violated the Fifth Amendment right to privacy. They argued they violated the First Amendment by compelling unaccompanied immigrant minors to discuss their decisions to have abortions. The lawsuit also alleged that requiring religious counseling violated the Establishment Clause of the First Amendment.

The Flores agreement  is a government agreement which requires the government to provide care for unaccompanied illegal alien minors up to a certain minimum standard. This includes a requirement to provide medical care, specifically including family planning services and emergency health care services. The lawsuit argued that the government policy did not live up to these obligations.

The District Court’s Ruling

The federal district court sided with the ACLU, signing an order allowing Jane Doe to receive an abortion. The judge in the case called both the shelter’s actions and the policy itself “shocking” and “unconstitutional.”

To make the ruling simple, the decision essentially came down to the court stating that it is well established as unconstitutional to outright deny access to abortion–whether it is applied to a citizen or an illegal alien. By following the state rules of Texas when it comes to receiving an abortion, Jane Doe had the equal protection of the law and was constitutionally allowed to receive an abortion.

The order required the shelter to “promptly and without delay” transport Jane Doe to the nearest abortion clinic and allow her to obtain an abortion.  It is important to note however that the order does not yet extend to challenging the policy.

The Case Takes a Twist

The government refused to comply with the court’s order, and appealed the case. However, the appeals court supported the lower court ruling–although they delayed the abortion slightly to seek a sponsor for Jane Doe. This delay was potentially a serious issue for Jane Doe. Texas law does not allow nearly any abortions after 20 weeks of pregnancy, at 15.5 weeks Jane Doe was nearing the point where the case would become moot.

Even after this, the government made it clear that they would take the case all the way to the Supreme Court. They argued that there is no established constitutional right to an abortion while in federal custody. They also interpreted the rules of the Flores agreement to require the care of all minors in their custody–including unborn fetus’ such as Jane Doe’s. This is an interpretation supported by no case law. In fact, the rulings on the status of a fetus two months into a pregnancy tend to go the other way.

However, here came the twist. Before the government made any further filing to seek a stay on the court’s order requiring them to allow an abortion, the ACLU moved up Jane Doe’s clinic appointment, changed it from a counseling appointment to an actual abortion, and Jane Doe got the abortion she wanted.

As mentioned above, Texas law does not allow nearly any abortions after 20 weeks of pregnancy, so the clock was ticking for Jane Doe. However, the government has taken affront to the ACLU’s actions. While the ACLU argues they were under no obligation to wait for the government to decide to act while Jane Doe ran out of time, the government has sought sanctions against the ACLU lawyers and argue that the lower court ruling should be vacated due to their actions.

The Case Moving Forward

Jane Doe got her abortion. In a statement afterword she said that nobody should be shamed for making the right decision for themselves. However, the case is not over. There has been no movement on the government’s requests as of now. What’s more, and most importantly, the central question of the case has not been thoroughly addressed.

These ruling imply that, at minimum, non-citizens have a right to the same protections of state abortion laws the same as citizens would have. However, the exact outlines of these rights have not been fully explored–the rulings in this case are rather brief. The ACLU will continue its battle against the policy of the Trump administration regarding illegal alien abortions. It seems quite likely that the question will eventually reach the Supreme Court as many are discussing the case as the largest abortion case since Trump took office. Jane Doe is also not the only plaintiff in the ACLU’s case, it was brought on behalf of all similarly situated people. This is not the last we will hear of this case or this issue. As of now, the trends say that non-citizens have the same rights to an abortion as anybody else.