DC Circuit Called to Defend Abortion Rights for Unaccompanied Minors

WASHINGTON (CN) – Eighteen states and the District of Columbia are urging the D.C. Circuit to uphold legal protections for young immigrants who seek abortions after they enter into the United States without a parent or guardian.

Activists with Planned Parenthood demonstrate in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion, outside of the Department of Health and Human Services in Washington, on Oct. 20, 2017. (AP Photo/J. Scott Applewhite)

The case in Washington arose following a May 2017 policy change whereby Scott Lloyd, director of the Office of Refugee Resettlement, wanted to sign off personally on every abortion requested by a minor in federal custody.

Lloyd, who is famously anti-abortion, has so far rejected every request, said New York Attorney General Barbara Underwood, who is at the helm Monday of a 35-page amicus brief in the case Garza v. Azar.

“All women have a constitutionally protected right to access safe and effective abortion services — including unaccompanied minors,” Underwood in a statement about the brief.

The American Civil Liberties Union initiated the Garza challenge in October 2017 on behalf of an undocumented minor immigrant identified only as Jane Doe. Though the injunction issued in that case by U.S. District Judge Tanya Chutkan applied classwide, Underwood notes in her brief that Lloyd later denied the request for an abortion by a minor who had been raped in her home country.

“Many of these young women have fled horrific violence, and some are pregnant as the result of rape,” Underwood’s statement notes. “The Trump administration simply does not have the authority to force their personal views on these young women by requiring them to carry pregnancies against their will. The federal policy is unconstitutional and inhumane, and we will continue to fight it.”

In addition to its treatment of abortion-seeking minors, the White House has also faced criticism for its treatment of immigrants who intend to carry their pregnancies to term while detained by the U.S. government. Immigration officials have been accused of denying these women proper medical care, sometimes during or after miscarriages, and of shackling them around their stomachs.

Underwood’s brief comes a month after 11 conservative-led states filed a separate amicus brief in the case, disputing that undocumented immigrants have a constitutional right to abortion. That brief says these minors have shown no “substantive ties” to the country and are not entitled to the “full panoply of constitutional rights,” only to protections against “gross physical abuse.”

Underwood meanwhile contends that the ORR policy shift imposes an “undue burden on the right to choose to terminate a pregnancy” because it places “substantial obstacle” in the path of a child who doesn’t want to be pregnant.

Rebutting the administration’s argument that pregnant minors can avoid the controversy of seeking an abortion in custody by not entering the U.S. unlawfully, Underwood argues that the reason for an immigrant’s detention is irrelevant to her right to abortion. If incarcerated citizens and undocumented adult women all have the right to choose abortion, Underwood argues, immigrant minors shouldn’t be any different.

“ORR fails to explain why children who fled their homes — often from violence and abuse — must be forced to carry pregnancies to term against their will simply because they entered the United States unlawfully,” the brief states.

If the minors agree to voluntary deportation, they might miss the cutoff date for legal abortion in their home country, or might not be able to get one safely at all because abortion is illegal there.

El Salvador, Honduras and Guatemala, whose citizens come north fleeing violence, corruption and economic instability, all have much stricter abortion laws than the U.S. But Underwood also refuted ORR’s claims that it was trying to prevent a trend of “abortion tourism.”

“There is no evidence whatsoever that any unaccompanied minor has entered the country to access abortion services,” Underwood wrote. “Many girls do not learn that they are pregnant until they are apprehended and submit to a medical examination in the United States. Others may become pregnant while trying to enter the country or after having arrived.”

Oral arguments before the D.C. Circuit are scheduled for September.

A spokesperson at the U.S. Department of Health and Human Services, which houses the Office of Refugee Resettlement, said the office does not comment on pending litigation. Underwood’s office did not immediately respond to a request for comment.

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