The GOP could stop abortions for migrant children who are victims of rape

An asylum-seeking migrant child waits to be treated by US Border Patrol agents after being arrested on Tuesday, March 3.

An asylum-seeking migrant child waits to be treated by U.S. Border Patrol agents after crossing the Mexico-U.S. border in Yuma, Arizona, Tuesday, May 3, 2022. Photographer: Nicolo Filippo Rosso/Bloomberg via Getty Images

The Supreme Court’s recent decision, Roe v. Repealing Wade could result in migrant children in US government custody losing access to abortions, including in domestic violence, human trafficking and rape cases.

While the White House is expected to take action soon to ensure “unaccompanied minors” have access to abortions for the remainder of President Joe Biden’s term in office, multiple sources told VICE News, the Supreme Court’s June 24 ruling leaves the Door open to a Republican president to radically restrict the reproductive rights of young migrant women in federal custody.

The Biden administration has already taken steps to prevent pregnant migrants from being sent to Texas ORR guideline issued last October, and those already in Texas can apply to be transferred elsewhere, in states that protect abortion rights. The transfers are automatically approved unless the government deems it “not in the best interests of the child”.

“If Trump is elected in 2024, I have no doubt he will change policy and seek to ban all unaccompanied minors from access to abortion, whether or not they are in a state that bans abortion,” he said Brigitte Amiri, Associate Director of the ACLU’s Reproductive Freedom Project. “Without an act of Congress, I don’t think there is anything this administration can do to enshrine policies that a future administration could not change. That’s the reality. People need to understand how fragile access to abortion is in this country.”

Children under the age of 18 attempting to enter the United States alone and without parents are usually processed by border officials and transferred to the Office of Refugee Resettlement or ORR, an agency of the Federal Ministry of Health and Human Services. As of July 1, nearly 12,000 children were in the ORR system, a network of safe shelters, group homes and medical facilities spread across the country, mostly operated by private contractors.

In the past nine months, according to federal data, the number of girls ranged from 3,400 to 4,700, with average stays of 33 to 46 days, but some last weeks or months longer as ORR works to match them with relatives or sponsors in the US while their immigration cases are being decided. The admissions process includes health screenings, and Bob Carey, a former ORR director during the Obama administration, said the placement of a pregnant unaccompanied minor is at the discretion of officials in Washington, DC

“Another government could limit the use of shelters in states that allow access to family planning services, or evict girls in states like Texas,” Carey told VICE News. “That could become an explicit or administrative matter.”

The girls in ORR custody can be extremely vulnerable, having endured dangerous journeys to the border. They sometimes flee countries that have criminalized abortion, like El Salvador, where women can be jailed for miscarriages. They are fleeing gang violence and domestic abusers linked to organized crime. Some are victims of rapewith several human rights groups and news outlets documenting the prevalence of sexual violence against migrants.

All of these factors can lead to circumstances in which girls in ORR custody may want to terminate their pregnancy. The Department of Health and Human Services and ORR did not respond to requests for comment and questions about the number of abortions requested by unaccompanied minors. The ACLU’s Amiri said the latest available data was from 2019, when an estimated 50 girls had applied for access to services.

“They have endured tremendous hardship and have fled their country for various reasons,” Amiri said. “You have to be able to make the best decision for your own body.”

In the early years of the Trump era, ORR was run by Scott Lloyd, a conservative advocate who is outspokenly anti-abortion. The ACLU sued Lloyd and the Trump administration in 2017 after trying to stop at least seven girls from having abortions, including a 17-year-old who was prevented from leaving a federal home in Texas.

The 17-year-old, who has been publicly identified as Jane Doe, spoke to VICE News in 2017 and said she was confident in her decision and had no regrets despite pressure from the Trump administration. “I chose to do this because I don’t feel capable of being a mature woman, or strong, or old enough to care,” she said. “I’m not sure I’m going to have a child.”

Jane Doe was sent to a “crisis pregnancy center” where she was encouraged to keep the baby. She also received, according to the ACLU, “a sonogram performed by non-medical personnel against their will” and said she had to inform the parents she was fleeing from in her homeland about her pregnancy.

In other cases, the ACLU said, Lloyd personally visited a young woman who wanted an abortion and tried to dissuade her from going through with it; another girl was sent to an emergency room after taking an abortion pill in an effort to stop the process and save the pregnancy. A girl who became pregnant after being raped by a group of men in her home country said she was sent to a religiously-affiliated anti-abortion facility for counseling, where she was given “appropriate drawings to color in and Bible verses.” .

In Jane Doe’s case, because Texas law requires parental consent or a court waiver before a minor can have an abortion, Jane Doe received legal counsel, an appointed guardian, and the necessary paperwork, but she was still prevented by the ORR from to visit a clinic.

Doe and the other girls were eventually allowed to have abortions, and the ACLU won a court ruling that lasted until the recent Roe v. Wade protected other pregnant unaccompanied minors who wanted to terminate their pregnancies. Now it’s up to ORR to allow remittances not just from Texas, but from a growing list of states — particularly in the South and Midwest — that effectively ban abortion.

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Scott Lloyd, director of the Office of Refugee Resettlement at the US Department of Health and Human Services, is sworn in during a House Judiciary Committee hearing on oversight of the US refugee-home program October 26, 2017 on Capitol Hill in Washington , DC. (Photo by Drew Angerer/Getty Images)

In an interview with VICE News, Lloyd, now an attorney in private practice, said he believes the Supreme Court only allowed states to pass their own abortion laws and it’s still up to the ORR to decide how to do it under the current political climate. There’s nothing stopping the Biden administration from responding to state abortion restrictions as they arise, Lloyd said.

“In my opinion, state law would not prevent the federal program from using abortion services,” he said. “It would just be a practical problem to have to take the child out of state to have it.”

Lloyd said he doesn’t think rape victims should be exempt from abortion bans.

“Personally, it’s about people’s lives,” he said. “I think the primary focus should be on preventing her from being raped. I am not one who can support the destruction of innocent lives of any circumstance, even the most tragic.”

Whether it’s Trump or another Republican presidential candidate in the upcoming election, abortion is sure to be a key campaign issue. And amid pressure to make the law as restrictive as possible, immigrant youth advocates hope the Biden government will do what it can to protect migrant women’s reproductive rights following the High Court’s decision in Dobbs v. Jackson.

“The Dobbs ruling creates significant additional complexity for ORR as it assesses where children should be placed in its care,” said Neha Desai, an attorney who leads litigation and policy efforts on behalf of immigrant children at the National Center for Youth Law . “I am confident that the ORR will continue to ensure access to reproductive healthcare, including abortion, for girls in its care, regardless of where in the country they are originally placed.”

For the ACLU’s Amiri, that means expanding the current policy that applies to Texas to other states, with so-called trigger laws that went into effect after the Supreme Court ruling left states to decide how to handle pregnancies must. As many as 26 states are “certain or likely” to enact abortion restrictionsaffecting millions of Americans.

“The policies you see for Texas now need to be expanded,” Amiri said. “Wherever a state prohibits abortion, ORR should not place pregnant minors. If something happens during a pregnancy and an unavoidable miscarriage needs to be treated, it is possible that the minor will not receive proper care.”

Carter Sherman contributed reporting.

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