AUSTIN, Texas — The Trump administration is preventing an undocumented, pregnant teenager detained in a Brownsville refugee shelter from getting an abortion in a policy shift with big implications for hundreds of other pregnant, unaccompanied minors held in such shelters.
She is not the first to be stopped, according to advocates who work with undocumented teenagers.
For the last seven months, the Health and Human Services Department has intervened to prevent abortions sought by girls at federally funded shelters, even in cases of rape and incest and when the teen had a way to pay for the procedure. The agency has instead forced minors to visit crisis pregnancy centers, religiously affiliated groups that counsel women against having abortions, according to documents obtained by POLITICO, interviews with sources involved in the Brownsville case and those familiar with the agency’s policy.
In some cases, a senior HHS official has personally visited or called pregnant teens to try to talk them out of ending their pregnancies.
“There is a pattern of unconstitutional overreach of power in a minor’s abortion decision,” said the teen’s lawyer, Brigitte Amiri of the ACLU.
The ACLU brought suit on Friday on behalf of the 17-year-old in the Brownsville shelter, contending HHS has barred the girl, now about 14 weeks pregnant, from getting the abortion even though she got a judge’s permission to have it without parental consent and has obtained the money to pay for it. Abortions after 20 weeks are illegal under Texas law.
The girl, identified in court papers only as Jane Doe, obtained a judge’s permission on Sept. 25 and had an initial abortion appointment scheduled for Sept. 28, at the end of her first trimester, Amiri said.
But officials at the Office of Refugee Resettlement, which is part of HHS, refused to transport her to her abortion appointment, instead taking her to a crisis pregnancy center, and calling her mother in her home country to tell her about the pregnancy, according to the ACLU suit and Amiri.
“What’s especially disturbing for us about this case, is that the child is in the custody of ORR [the Office of Refugee Resettlement], so she has no other choice, and she is stuck in a form of custody or detention,” said Michelle Brane of the Women’s Refugee Commission.
The Trump policy represents a sharp departure from the Obama administration, when the government reviewed an undocumented teen’s request for an abortion when she sought federal funding to pay for it, said Robert Carey, director from April 2015 until January of this year.
The funds were approved in cases of rape or incest or when a mother’s life was in danger, according to the agency’s guidelines. HHS didn’t get involved if the teen got funding for the procedure from another source, he said.
“I wasn’t approving their right to have the procedure,” Carey said.
The ACLU estimates that several hundred pregnant minors are currently in federal shelters throughout the country. Most are from Guatemala, Honduras and El Salvador and immigration experts believe many are victims of rape and sexual violence, either in their home countries or during the perilous journey here. If they are apprehended after crossing the U.S.-Mexico border, they are housed in HHS shelters separate from adults until they are reunited with relatives or other sponsors, or else deported.
The Trump administration policy shift appears to have begun in early March, in the weeks leading up to Scott Lloyd, a lawyer with Knights of Columbus, a Catholic charitable organization, taking the helm of the refugee resettlement agency. On March 6, he and two HHS employees sent an internal memo detailing three cases of minors held in federal custody asking for abortions, according to documents shared with POLITICO.
They say that federally funded shelters must “provide immediate and continuing information” to the agency regarding abortion requests, that neither the agency, nor the facilities, may authorize the procedure and that punitive action would be taken against facilities that violate the protocol. The email also said the girls in those cases had changed their stories about whether the pregnancies resulted from rape or consensual sex with a boyfriend. The document also had “talking points” but they were blacked out in the copy shared with POLITICO.
Later, as director, Lloyd wrote in a March 30 email to another staffer: “Grantees should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
Lawyers who work with the teens say the policy appears to have been disseminated informally through email, rather than being formally codified in the agency’s policy guide.
They also note that Lloyd has personally visited and called pregnant girls in shelters, directed them to a list of approved crisis pregnancy centers, instructed staff to block minors from meeting with attorneys and told shelter operators to call a minor’s parents even if she receives permission to go to a judge to obtain authorization for an abortion without their consent. In many cases, parents are hundreds of miles away in their home countries, or minors worry that parents won’t approve of the procedure.
Susan Hays, an Austin attorney who helped the girl in the Brownsville shelter get a judge’s permission to have the procedure, said that the girl was worried about telling her parents because they had beaten her sister when she became pregnant out of wedlock.
Lloyd has also threatened to pull funding from shelters, which are under federal contract, for failure to comply, Hays said. “Shelters are scared,” she added.
Access to abortion has long been an issue for girls detained in refugee shelters, because many are religiously affiliated institutions that oppose the practice. But Amiri, Hays and others who work with refugees tell POLITICO that it’s unprecedented for an ORR director to personally attempt to dissuade minors from ending a pregnancy.
“Imagine you are an unaccompanied minor and this bureaucrat from Washington, D.C., in a suit comes to visit you,” Amiri said. She called it an “abuse of power to coerce and use immigration status as a bargaining chip.”
HHS did not to respond to questions about the agency’s policy regarding abortions among undocumented pregnant minors. Lloyd referred repeated calls and emails to the HHS communications team.
Calls and emails to several ORR staffers were unanswered. In response to questions about the Brownsville case, a spokesperson for HHS’ Administration for Children and Families said in an emailed statement “our paramount concern is the child’s safety and well-being.”
“While the child is in our custody, our goal is to provide food, shelter and care to her under federal statute,” the spokesperson said. “We are providing excellent care to the adolescent girl and her unborn child, who remain under our care until the mother’s release.”
The policy regarding what to do with undocumented minors in shelters that request abortions was first laid out in a 2008 Bush administration memo. That came at the end of the administration, so the Obama administration interpreted the policy.
“A considerable amount of time and energy was put into the development of that policy,” Carey said.
Carey estimated that he signed off about three or four times a month on the use of federal funds to help girls terminate their pregnancies in case of rape or incest or when her life was threatened.
“They were entitled to family planning services and left [on their own] to make those decisions to terminate those pregnancies,” he said about the decision of a pregnant minor in a federally funded shelter to have an abortion.
The new policy could have far-reaching consequences on all aspects of rules around pregnant unaccompanied minors, from how long they are held in federal shelters to how they are counted, say lawyers and advocates who work with them.
For example, HHS may keep girls until they can no longer legally get an abortion or release them to families that would also discourage abortions, rather than to family members or sponsors. In addition, HHS is considering counting fetuses as unborn children, which could change federal funding at shelters that house pregnant teens, according to sources.
The emergence of the policy is documented in a series of emails between Lloyd and other officials and shelters since March.
In one case, acting ORR director Kenneth Tota tried to stop a medication abortion, which involves taking two prescriptions in sequence. He asked that the girl be sent to the emergency room for an exam to determine if the fetus was still viable after she had taken the first pill, but before she took the second drug to complete the procedure. In the end, the agency let the procedure continue.
In another case, about 10 days before his official appointment, Lloyd visited a Honduran girl in a San Antonio shelter and sent an email to the shelter operator asking to accommodate her request for bananas and soup and a more comfortable mattress, according to the emails. He added that if things get “dicey” with her sponsor, a relative in the U.S., he knew families that would take her in and see her through her pregnancy and beyond. That potentially violates an agreement in which the government must quickly reunite the minor with family or other sponsor.
In another case this spring, described in the emails, Lloyd said he spoke with a girl requesting an abortion at a Southwest Key shelter in Phoenix. He directed ORR staff to send the girl to a specific crisis pregnancy center for an ultrasound and to keep her from meeting with an attorney regarding her desire to get a judge to give her permission for an abortion. Neither the shelter nor the crisis pregnancy center responded to requests to comment over the weekend.
Although the ACLU’s lawsuit applies only to one teenager, Texas Attorney General Ken Paxton said in a news release that he worries a decision in the case could have broad-ranging implications.
"No federal court has ever declared that unlawfully-present aliens with no substantial ties to this country have a constitutional right to abortion on demand," he said. "If ‘Doe’ prevails in this case, the ruling will create a right to abortion for anyone on earth who enters the U.S. illegally. And with that right, countless others undoubtedly would follow. Texas must not become a sanctuary state for abortions."