Tue. May 17th, 2022

For more on minors’ rights, check out our special edition.

We don’t have to imagine what the world will look like when teens—or any of us—are policed into forced pregnancy.

We need only recall the facts of Garza v. Hargan and remind ourselves that under the Trump administration, the United States held a 17-year-old pregnant girl hostage, refusing her the health care she was constitutionally entitled to.

Why?

Because she had the temerity to arrive undocumented in the United States and to ask for an abortion when she found out she was pregnant. Jane Doe did everything she was supposed to do. She navigated the complex judicial bypass process Texas mandates for minors seeking an abortion, and she got a court order permitting her to obtain one without parental consent. She was good to go.

But an incompetent ideologue charged with her care took it upon himself to veto her choice.

That incompetent ideologue was Scott Lloyd, the criminally unqualified person who, in March 2017, Trump picked to serve as director of the Office of Refugee Resettlement (ORR), the agency that oversees the detention centers that undocumented and unaccompanied minors are confined to when they arrive in the United States.

It was then, according to court documents, the ORR announced that federally funded shelters—like the one housing Jane Doe—were prohibited from taking “any action that facilitates” abortion access without Lloyd’s “direction and approval.” In other words, no pregnant teen in an ORR facility could get an abortion unless Lloyd gave permission. And considering his staunch anti-choice ideology, Lloyd wasn’t going to approve any abortions, nor was he going to approve any transport from the detention center related to anything having to do with obtaining an abortion.

That means the U.S. government was preventing pregnant minors in its custody from seeking counseling and accessing the court system so they could try to obtain a judicial bypass. It’s a clear violation of their constitutional rights, and so Lloyd quickly found himself on the business end of an ACLU lawsuit: Garza v. Hargan. The ACLU sued ORR, the U.S. Department of Health and Human Services (the HHS, which oversees the ORR), two HHS officials—and Scott Lloyd.

Enter Jane Doe

Jane Doe arrived in Texas in September 2017.

Like thousands of young people, she crossed the border alone from Mexico, after which she was detained by federal agents and placed in a Texas detention center for undocumented and unaccompanied minors.

After discovering she was pregnant, Jane Doe sought abortion care. Rather than directing her to an actual health-care center, ORR officials forced her to visit a “crisis pregnancy center.”

CPCs masquerade as health centers but their goal is singular: to direct patients seeking abortion care into their clinics through false advertising and then to pressure, manipulate and even lie to them to dissuade them from getting an abortion. Its employees present themselves as health-care workers to potential clients when they frequently aren’t.

They also engage in myriad unethical practices to delay, and in some cases prevent entirely, pregnant people who walk through their doors from getting abortion care. CPCs have been caught, for example, lying to patients about how far along in their pregnancy they are in hopes of lulling them into a false sense of security about how much time they have to seek abortion care, ultimately pushing them past the point of being able to get an abortion at all.

At the “crisis pregnancy center,” Jane was forced to undergo a medically unnecessary ultrasound and was subject to its attempts to convince her not to have an abortion, according to court documents. Still, Jane was determined to get an abortion.

So with the assistance of an appointed guardian and attorney, she went to court to comply with Texas’ judicial bypass procedure. (In Texas, as in many states, young people who can’t get a parent to consent to their abortion have to go to court and ask a judge to deem them mature enough to make that decision. Apparently, giving birth doesn’t require the same level of maturity that deciding not to give birth does.) In Jane’s case, the judge gave her the green light to move forward.

But ORR still wouldn’t let her get the abortion. They refused to transport her to a clinic—essentially holding her captive—and began to harass her. In 2017, Rewire News Group spoke about the case  with Susan Hays, then the legal director of Jane’s Due Process, who said ORR officials were not only denying Jane Doe health care but also “torturing her”:

We’ve learned that officials with ORR are asking her what she’s going to name her baby and even though she has a bypass, which gives her the right to consent to her own abortion care without telling her parents, officials with ORR informed her parents in her country of origin and they are haranguing her to talk to her mother.

Hays went on to say, “Jane Doe was fleeing physical abuse and she came to the United States seeking safety, only to be held hostage, coerced into having a child, and forced to talk to her abusive parents about her personal decisions.”
Jane was ultimately able to get an abortion, but not before the Trump administration demonstrated the horrific lengths to which it would go to prevent Jane Doe and other pregnant minors like her from accessing abortion care.

Bullying pregnant minors

The U.S. government bullied Jane Doe. That bullying included psychological torture, an invasion of privacy, and a willful denial of her constitutional rights.

Even after a Texas judge ordered that she be allowed to obtain an abortion, her government captors refused to comply They refused to transport her to the doctor. They refused to let anyone else transport her to the doctor. (The ORR is required by law to transport minors when they need to see a doctor.) But the agency was happy to ignore both the court’s order and federal law.
To understand the lengths the government went to in its efforts to stop Jane from having an abortion, we should walk through the timeline of her case.

  • September 7, 2017: Jane Doe enters the country unaccompanied.
  • September 25: Jane is granted a judicial bypass after a hearing before a local judge, but the ORR refuses to permit her to leave the detention center to get the abortion.
  • October 13: Rochelle Garza, Jane’s guardian ad litem (and current candidate for Texas attorney general), sues Scott Lloyd, among others, in Garza v. Hargan.
  • October 18: A U.S. district court judge grants a temporary restraining order preventing HHS from interfering with Jane’s ability to access abortion care.
  • October 19: Jane undergoes mandatory counseling and is scheduled to have the abortion on October 20 or 21.
  • October 20: A three-judge panel of the D.C. Circuit Court of Appeals vacates portions of the lower court’s order, blocking Jane from getting the abortion as scheduled. Justice Brett Kavanaugh was on that panel at the time.
  • October 24: The D.C. Circuit Court of Appeals, sitting en banc, vacates the three-judge panel’s order and kicks the case back to the district court, which ordered the Trump administration to let Jane get the abortion. Kavanaugh dissents, arguing that Jane has a right to an abortion but that waiting until a sponsor for Jane could be appointed did not present an “undue burden”—even though no sponsor had yet been found, there was no indication one ever would be found, and that by forcing her to wait, Jane’s pregnancy would be pushed into the second trimester.
  • October 24: Garza asks for the temporary restraining order to be amended so as to allow Jane to obtain the abortion.
  • October 25: Garza takes Jane to get the abortion. Believing that Jane was not scheduled for the abortion until October 26, HHS informed Garza that it would be seeking a stay of the order permitting Jane to obtain the abortion that day. However, the doctor who had already done her mandatory counseling had availability on October 25 and Jane proceeded.

The scheduling of the abortion sent the Trump administration into a tizzy. HHS was informed that Jane Doe was scheduled for the abortion on the 26th and flew off the handle when she got the abortion on the 25th. But as the above timeline shows, Jane had already undergone counseling on October 19.

Although the doctor was unable to perform the abortion on October 25 at the time Garza told Trump officials Jane would get the abortion, they later became available. So Jane got the damn abortion. Otherwise, thanks to Texas’ “same physician requirement,” which requires the doctor who performs the abortion to also provide the counseling, Jane would have had to go through a second round of counseling on October 25, wait 24 hours, and get an abortion the next day. She didn’t want to wait, so she moved forward—as the three courts, two federal and one state, had by that point said she could.

The Trump administration screamed bloody murder, arguing that it intended to try to block the D.C. Circuit ruling allowing Jane to go forward with the abortion, thus enlisting a fourth court to involve itself in the decision Jane had already made to terminate her pregnancy.

If it sounds ridiculous, that’s because it is.

Setting aside the fact that the Trump administration had no right to force Jane to wait for its appeal of the D.C. Circuit Court’s October 24 decision, this was the full weight of the government being brought to bear on a 17-year-old girl. (And an immigrant girl of color at that—not exactly Republicans’ favorite demographic. Imagine what they will do to prevent white girls from getting abortions.)

So outraged was the administration at Jane’s decision that it demanded satisfaction. The administration filed papers with the Supreme Court demanding sanctions against the ACLU for failing to give the government a minute-by-minute update on Jane’s case.

The ACLU fired back, arguing that if the government wanted to seek an emergency stay, it should have done what most people do when they want emergency relief from the Supreme Court—seek it immediately. In other words, the administration should have filed its papers on October 24. Jane was complying with court orders at the time of her abortion. Any claim she was required to give the government a heads-up so it could continue to block her access to abortion care is absurd.

But absurdity will reign in the not-too-distant future.

Meddling in minors’ medical affairs

This is the sort of harrowing regime anti-choice ideologues have long envisioned for pregnant youth.

And it gets even worse.

After Lloyd stepped down from the ORR, presumably because the ACLU handed him his ass in court, a Freedom of Information Act request lodged by the liberal PAC American Bridge 21st Century revealed the depths of Lloyd’s depravity: He was surveilling the young people in ORR’s custody.

As director of the ORR, Lloyd received weekly spreadsheets with information about the pregnant teens, ages 12 to 17, in ORR custody. As Rewire News Group reported in 2019:

The spreadsheet tracks gestational age and whether the young person has asked for abortion care. Lloyd has traveled to meet with pregnant people in ORR detention centers to coerce them out of accessing abortion care; he’s denied seven young, undocumented women’s requests for abortion—even when the pregnancy resulted from rape, which is a violation of federal law; he has disobeyed court orders to not tell a young woman’s parents about her decision to obtain an abortion, which put her safety at risk; he has ordered that all pregnant people in ORR custody be given anti-abortion counseling; and asked officials to look into “reversing” a medication abortion.

It’s no surprise Lloyd believed he—and he alone—had authority over the reproductive choices of minors in federal custody and the right to meddle in their medical affairs. Government lawyers argued in Garza that Lloyd blocked Jane Doe from accessing abortion care because he was concerned for her well-being. But that’s not true. He holds extreme and dangerous anti-choice views.

Before Lloyd was appointed to head up the ORR, he served on the board of directors for a crisis pregnancy center. And a 2017 report by Ema O’Connor at BuzzFeed News noted Lloyd had “a history of controversial statements about contraception and abortion.”

He once suggested that women who obtain contraception through government funding should be required to sign a pledge promising not to have an abortion. “They would have to buy [contraception] themselves or turn to private sources of funding for the contraception,” he wrote in 2009 for the National Catholic Register. “Or, they could stop having sex until they are ready to have a child.”

Sure thing, Scott. Just tell teens to stop having sex. That’s a foolproof plan.

He also suggested in a 2011 blog post that the Supreme Court’s abortion jurisprudence infringes on men’s “right to procreate.”

But this isn’t about Scott Lloyd, not really. It’s about every anti-choice lawmaker—and even the conservative justices on the Supreme Court—behaving as if the Constitution does not protect the right to abortion. (As of this writing it still does.)

It’s about Henry Hyde, who famously exclaimed that he would stop everyone from getting abortions if he could, but since he couldn’t, he sure as hell was going to stop poor people from doing so by discriminatorily denying them health-care services. Except with Lloyd it wasn’t poor people, but undocumented minors seeking refuge in this country.

More broadly, it’s about a vulnerable group of people: pregnant minors, whom conservatives somehow believe are mature enough to birth and perhaps raise a child but not mature enough to make decisions about their bodies.

It’s about stripping young people of their agency, as well as the adults—who should know better—who betray them.

Jane Doe’s battle against the U.S. government was as epic as it was absurd.

The Trump administration’s effort to essentially hold a 17-year-old minor hostage in a detention center and refuse her the constitutional right to an abortion even though she had already complied with Texas’ arduous judicial bypass process is one of the more shameful displays of government-sanctioned reproductive tyranny this country has seen in recent memory.

And if given the opportunity, conservatives will roll out that policy for all pregnant minors. Lloyd’s actions, as detailed in Garza v. Hargan, are a blueprint. It’s up to us to decide whether we will protect pregnant youth from predatory and invasive government officials like Scott Lloyd.

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