ACLU Takes Young Immigrant’s Abortion Fight to DC Circuit

Unwilling to hang its hopes on the selection of a sponsor, meanwhile, the ACLU called this delay “an exercise in futility that serves no purpose other than to keep J.D. pregnant longer.”

“The government has been under a statutory obligation to attempt to find an appropriate sponsor for more than six weeks and thus far none has been found,” the petition states.

Robert Carey, a former director of the Office of Refugee Resettlement at HHS, testified to the government’s complicated sponsorship protocol in a declaration submitted with Sunday’s petition.

“The ORR policies outlined herein are in place for good reason — they are vitally important to ensuring the safety of all unaccompanied minors and preventing exploitation and human trafficking,” Carey wrote. “Accordingly, it is my opinion that weakening any of these procedures to expedite the release of a pregnant minor to a sponsor who is neither the minor’s parent, legal guardian or close family relative would risk setting a dangerous precedent.”

Another opinion included with the petition is the dissent filed Friday by U.S. Circuit Judge Patricia Millet.

“As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks,” Millet wrote. “Forcing 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 J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.”

The government has said Doe could get the abortion she seeks by leaving the United States, but the ACLU noted that the girl should not have to forfeit her immigration chances for her health.

“Indeed, as detailed in the declaration of J.D.’s state-appointed attorney ad litem, J.D. has a substantial claim for special immigrant juvenile status, a status that can eventually lead to becoming a legal permanent resident, based on the abuse she has suffered at the hands of her parents and the danger she faces if she returns home,” the petition states.

Millet calls the government’s position here one “that is wrong and that is unconstitutional.”

“The government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights,” her dissent states. “The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution. The Statue of Liberty’s promise to those ‘homeless’ ‘yearning to breathe free’ is not a lie.”

Appointed to the court by President Barack Obama, Millet closes her 10-page dissent with a biting slap at the government’s conduct.

“J.D. came to the United States without legal documentation,” she wrote. “That is not disputed. But the government cannot make a forced pregnancy the sanction for that action. J.D. retains her basic rights to personhood. After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. When they, consistent with legal process, decide to continue their pregnancies, that decision should be supported. When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.”

In addition to Doe’s case, the ACLU has a separate challenge pending in California over the obstruction faced by minors in the custody of religious-affiliated government contractors who seek abortions or birth control.

ACLU attorney Brigitte Amiri noted Friday that there is no religious affiliation at the shelter where the government sent Doe. 

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