On Wednesday morning, the seventeen-year-old at the center of a legal case about abortion access for undocumented minors obtained the procedure. The abortion was the latest and perhaps final step in a lawsuit that has gone on for nearly a month, gaining national attention along the way. At the heart of the issue lies the question of whether undocumented immigrants have access to the same rights as U.S. citizens, as the federal government has argued that those without ties to the U.S. do not.
The teenager, referred to as Jane Doe in legal documents, is believed to have arrived in Texas from an unidentified Central American country. She was detained and transferred to an immigrant shelter in Brownsville under the care of the Office of Refugee Resettlement, which oversees unaccompanied undocumented minors. According to Doe, she learned that she was pregnant at the shelter. In Texas, minors seeking an abortion must either have their parent’s permission or seek a court order permitting the procedure. With the help of her lawyers and representatives from Jane’s Due Process, a non-profit organization providing legal assistance for pregnant minors in Texas, Doe obtained a court order permitting her to have an abortion without contacting her parents. She secured private funding for the procedure, and according to Susan Hays, the legal director of Jane’s Due Process, Doe was scheduled to have her state-required pre-procedure appointment on September 28 and her abortion the next day.
When the ORR refused to transport her to her medical appointment, prohibiting the teen from obtaining the pre-procedure, the American Civil Liberties Union got involved. According to the ACLU, Doe was taken to a Crisis Pregnancy Center, where anti-abortion advocates pressured her to carry the pregnancy to term. The organization also states that federal agents informed Doe’s mother of her pregnancy, despite the court order allowing her to get the abortion without a parent’s consent.
The ACLU initially attempted to add Doe’s case to a lawsuit filed in 2016 accusing the Obama administration of allowing religious groups to impose their beliefs on undocumented immigrant minors seeking abortions, but when a judge in California—where the lawsuit is based—refused to hear Doe’s case because she was detained in Texas, the organization filed separately for a temporary restraining order and preliminary injunction to prevent the ORR from blocking Doe’s attempts to make the medical appointments for her abortion.
In the court filings, Doe’s defense argued that by not transporting the teenager to her appointments and not allowing anybody else to, the ORR was “essentially holding J.D. hostage to prevent her from getting an abortion in blatant violation of J.D.’s constitutional rights.” The ORR’s actions were supported by Republican leaders: On October 17, a day before the lawsuit hearing, Texas Attorney General Ken Paxton filed an amicus brief in support of the federal government, arguing that “unlawfully-present aliens with no ties to the United States have no constitutional right to an abortion on demand.” Attorney generals from Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, and South Carolina joined the brief.
In the hearing on October 18, District Judge Tanya Chutkan ruled that Doe had the right to an abortion in Texas. According to the Washington Post, Chutkan expressed astonishment at the federal government’s position, asking Justice Department attorney Scott Steward if he believed the Roe v. Wade ruling was the “law of the land”:
Stewart acknowledged the ruling but said the government views this case differently because the teen is an undocumented immigrant in federal custody. He signaled that undocumented minors do not have a constitutional right to an elective abortion in federal custody, unless it is a medical emergency, and also said immigrants here illegally have “minimal” protections in this country.
“I’m not going to give you a concession on that, Your Honor,” he said.
The judge laughed. “This is remarkable,” she said.
That evening, the Justice Department appealed Chutkan’s decision, requesting an administrative stay so that Doe could not obtain her abortion while the U.S. Court of Appeals for the District of Columbia considered the case. The court granted the stay. On October 20, it ruled that Doe had the right to an abortion, but also delayed her procedure until October 31 to give the Department of Health and Human Services time to find her a sponsor who could then handle her request for an abortion. Of the three-judge panel, only Judge Patricia A. Milliett dissented, writing that “forcing [Doe] to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”
According to the Texas Tribune, lawyers from both sides stated that previous attempts to find Doe’s sponsors had been fruitless. And Doe was running out of time: She was an estimated fifteen weeks pregnant, and in Texas, abortions are not permitted after twenty weeks.
On October 22, the ACLU filed an emergency motion calling for the full ten active members of the appeals court to re-hear the appeals ruling, which was granted. On Tuesday, six judges upheld Chutkan’s initial decision on the case, permitting Doe to obtain her abortion immediately without obstruction from the ORR.
After nearly a month of back-and-forth with the legal system, Doe had her abortion Wednesday morning before the Department of Justice could file any further appeals. After her procedure on Wednesday, Doe released a statement through her guardian. “No one should be shamed for making the right decision for themselves,” she wrote. “I would not tell any other girl in my situation what they should do. That decision is hers and hers alone.”
Doe’s case has been a particularly contentious issue because it sits at the intersection of immigrant rights and abortion access, two heated issues in Texas and the rest of the country. The federal government proposed that Doe leave the country of her own volition to get an abortion, a stance consistent with President Trump’s anti-immigration policies. “There is no precedent that supports Ms. Doe’s assertion that by illegally entering the United States and choosing to remain in custody rather than return home, the government must facilitate her access to abortion in order to avoid placing an ‘undue burden,’” wrote Justice Department lawyers. Throughout the case, the federal government argued that the rights of U.S. citizens, including the right to an abortion, do not extend similarly to undocumented immigrants in custody like Jane Doe, warning that this could set a dangerous precedent.
In his amicus brief, Texas Attorney General Ken Paxton sided with the administration’s logic. He wrote, “the free-for-all that would flow from that perverse incentive burdens the public at large as well as the governmental entities who will be tasked with honoring these newfound rights.” The government’s fear of a slippery slope was two-fold: Allowing Doe to have her abortion while in federal custody would invite more immigrants to the U.S., and that more women would seek abortions.
Due to the timing of the court rulings, Doe was able to get the procedure. Her case won’t be the one to bring the issue of abortion back before the Supreme Court. But though Doe surpassed the odds, the Washington Post noted that Chutkan did not immediately decide on the ACLU’s request to apply the ruling to other similar cases for undocumented immigrants. Doe’s court battle may be over, but the legal war is far from finished.
