Every Jane Doe Deserves Justice

On Wednesday, Jane Doe—an unaccompanied and undocumented minor being held in a Texas-based federal detention center—was finally granted her constitutional access to abortion after a month-long back-and-forth with the Trump administration. Her fight spotlights the challenges migrant women and girls are facing in the age of Trump—and the ways in which their lives and autonomy are disrespected by new policies and directives being put in place by officials from various departments.

Doe, 17, arrived in the U.S. in early September, seeking an escape from abuse at home. When she discovered she was pregnant later that month while in detention, she received a judicial authorization as required by the state of Texas, secured private funding for the procedure and arranged her own transportation. Her court-approved request for an abortion, however, was then delayed by ORR in line with a new Trump administration policy that further restricts abortion access for unaccompanied minors in U.S. custody—and ORR detention center officials took Doe to a counseling session at a religiously-affiliated, anti-abortion Crisis Pregnancy Center instead of taking her to the state-mandated counseling appointment she was scheduled for. Even though Doe had told the agency about past parental abuse, ORR called her mother without consent to inform her of the situation.

The clinic gave her a medically unnecessary sonogram and told her to not go through with the abortion. Staff at the detention center also reportedly verbally harassed Doe about her decision. Doe missed her appointment the next day.

The ACLU ultimately filed suit in a federal court on Doe’s behalf, claiming that her constitutional rights were being violated and demanding ORR take her to get an abortion. The Trump administration, however, refused. Among other things, their lawyers asserted that blocking Doe from leaving the detention center was not an “undue burden” on her right to an abortion, insinuating that she should submit to deportation should she wish to access the procedure; although Doe secured private funding and transportation for the procedure, officials also claimed that allowing Doe to leave detention for an abortion was tantamount to government “facilitation” of an abortion. (On top of the offensively cavalier attitude officials demonstrated toward Doe’s attempt to seek refuge from abuse in the U.S. and the contempt they showed for her human rights and bodily autonomy, they also disregarded the fact that abortion is illegal in her home country.)

That was the beginning of an extensive back-and-forth in which Doe’s private medical procedure became a political ploy for an anti-abortion administration hellbent on restricting women’s reproductive rights. When a district court ordered ORR to stop interfering with Doe’s procedure immediately, the Trump administration filed an appeal to halt it. On Friday, in a 2-1 decision a federal appeals court in Washington D.C., the U.S. Department of Health and Human Services (HHS) was ordered to secure a sponsor to remove Doe from federal custody so that she could receive an abortion.

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Trump administration was violating Doe’s constitutional right to abortion access and was unjust in forcing her to carry an unwanted pregnancy. Yesterday, at 16 weeks pregnant, the ACLU confirmed that Doe was finally granted access to abortion care.

Because the clinic nearest to the detention center only performs abortions up to 17 weeks and six days—and because abortion in in Texas is illegal after 20 weeks—the court decision affirming her autonomy came just in time. But what happened to Doe is not an isolated incident, and her victory hasn’t provided a pathway to a systemic solution to what she faced in detention. Hundreds of similarly positioned migrant women and girls face restricted abortion access and racialized violence at the hands of the U.S. government—and the Trump administration has only escalated attacks on their reproductive rights.

As reported in the Ms. Summer 2017 issue, girls and women fleeing violence are too often met by violence when crossing the U.S.-Mexico border—and such violence is only increasing with a growing number of Immigration and Customs Enforcement (ICE) raids in conjunction with the administration’s vocal call for Customs and Border Protection (CBP) to tighten policing and surveillance along the border. In March, DHS secretary Gen. John Kelly announced a draconian policy to separate women from their children as a deliberate “deterrent to other mothers” who would consider the U.S. as a refuge; in April, Attorney General Jeff Session stood at the Arizona-Mexico border to pledge that “we will now be detaining all adults who we apprehend at the border.”

When arguing on behalf of the ORR in Doe’s case, Department of Justice lawyer Catherine Dorsey told judges that because access to an abortion required the written approval of the ORR director, signing off on Doe’s abortion was tantamount to facilitating it. Dorsey’s argument indicates that the Trump administration is trying to define itself as a religious entity with its own singular set of “sincerely held moral beliefs,” a tactic used previously by Hobby Lobby to invoke corporate personhood in order to avoid offering birth control coverage to its employees as mandated by the Affordable Care Act. (That tactic has now been translated into federal policy under the Trump administration, which has made such loopholes for providing comprehensive care to women even wider.)

Dorsey’s statement also points us to E. Scott Lloyd—an anti-abortion activist appointed Director of ORR by President Trump who is seeking to make his personal beliefs into policy and practice in his department.

Lloyd, who has previously advocated for forcing poor women who rely on government-funded healthcare to forfeit all rights to abortion access, personally intimidates pregnant immigrants in his department’s custody out of having abortions—including repeatedly contacting undocumented girls via phone in order to try to persuade them to “take a particular course of action.” He has written that “unborn child[ren]” of minors are “in our care” and subsequently directed detention centers to not let pregnant minors meet with attorneys to discuss their abortion and contraception options.

According to the Feminist Newswire, an estimated 60 percent of female migrants have been victims of rape, and at any one time, there are between several hundred and a thousand unaccompanied minors in U.S. custody. Now, under the leadership of Trump administration officials like Lloyd, those unaccompanied minors are being blocked from accessing abortion care—and facilities that house them are being directed not to let minors seek out judicial bypass or even speak with lawyers.

“I made my decision and that is between me and God,” Doe said in a statement Wednesday. “Through all of this, I have never changed my mind. No one should be shamed for making the right decision for themselves. I would not tell any other girl in my situation what they should do. That decision is hers and hers alone… This is my life, my decision. I want a better future. I want justice.”

Jane Doe’s fight is a stark reminder of the Trump administration’s ongoing attacks on immigrants as well as women and girls. Caught at the intersection of an increasingly xenophobic and anti-woman administration, Doe represents the experiences of hundreds of girls suffering because of policies put in place and further emboldened by the Trump administration.

“Justice prevailed today for Jane Doe. But make no mistake about it, the Administration’s efforts to interfere in women’s decisions won’t stop with Jane,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, in a statement. “With this case we have seen the astounding lengths this administration will go to block women from abortion care. We will not stop fighting until we have justice for every woman like Jane.”




Taliah Mancini is an editorial intern at Ms. Magazine.