A looming policy change threatens to undo existing protections and leave pregnant immigrant teens in federal custody without meaningful access to abortion care.
At the end of January, on the same day as the annual antiabortion March for Life (which continues today, even after the fall of Roe, “to ultimately make abortion unthinkable”), the Trump administration gave a gift to its antiabortion supporters: It announced it would change the policy addressing abortion access for unaccompanied immigrant minors in government custody.
Antiabortion activists have been pushing for the change, including Matt Bowen of Alliance Defending Freedom, who went so far as to claim that the federal government was running an “Uber service for abortions for illegal alien children.” Such a characterization is beyond callous.
Unaccompanied immigrant minors are young people who come to the United States without their parents, often fleeing abuse or violence in their home countries. Many experience sexual violence on their journey to the United States.
When they are taken into federal immigration custody, they are placed in private shelters funded by the federal government, specifically the Office of Refugee Resettlement (ORR), until they are reunified with family in the United States or deported. While in shelters, these young people receive a medical examination, and some minors discover, for the first time, that they are pregnant, with some opting for an abortion.
During the first Trump administration, the newly appointed ORR director Scott Lloyd—a loyal antiabortion foot soldier in the Trump-Pence administration—announced that henceforth pregnant minors in federal immigration custody could not obtain an abortion without his express consent, based upon his assessment of their “best interest.” This move was in full accord with the administration’s effort to “exert power over bodies marked as Other through both border and reproductive control,” as Elise Andaya wrote at the time.
The issue came to the fore when 17-year-old Jane Doe (a pseudonym), an unaccompanied immigrant minor from Central America, learned she was pregnant and informed shelter staff that she wanted an abortion. In accordance with Texas law at the time, since parental consent was an impossibility due to a history of abuse, she accordingly obtained court authorization for the intended abortion.
When Rochelle M. Garza, Doe’s court appointed guardian ad litem contacted shelter staff to arrange transportation to the clinic, she was told that ORR had informed them that neither she nor the staff were permitted to drive her there. Although effectively holding her hostage for purposes of preventing her from accessing the court-authorized abortion, ORR saw fit to force Jane to visit a crisis pregnancy center in order to persuade her against abortion.
Lloyd’s non-consent policy was paternalistically fueled by his claim that he was protecting the unaccompanied immigrant minors from the “devastating trauma” of abortion, including in cases where the pregnancy resulted from rape. “Abortion does not cure here the reality that she is the victim of an assault,” Lloyd explained. “It also carries with it a significant risk of further complicating the matter. It is possible, and perhaps likely, that this young woman would go on to experience an abortion as an additional trauma.”
Needless to say, Lloyd was wholly impervious to the trauma of forced birth.
In addition to declaring that he had sole dominion over the reproductive futures of unaccompanied minors, Lloyd also deemed it the affirmative duty of ORR to protect “all the minors in our care, including their unborn children.” By refusing to authorize the “killing” of “unborn children” in ORR care, Lloyd celebrated that he was providing them with “refuge,” as symbolized by the agency’s name.
Fighting back, the ACLU Reproductive Freedom Project—with (co-author of this piece) Brigitte Amiri, the project’s deputy director, serving as lead counsel—filed the case of Garza v. Hargan, a class-action lawsuit on behalf of unaccompanied minors. After a multi-year legal battle to secure their rights, the ACLU succeeded in blocking the policy, and entered into an agreed-upon dismissal of the case with the federal government. The terms of that agreement included that ORR would adopt a policy ensuring abortion access, and that shelters would be required to post a “know your rights” document in English and in Spanish explaining to minors that they have the right make decisions about their pregnancy including birth (for parenting or adoption) or abortion.
Building upon the terms of the agreement, ORR adopted guidance setting out that the agency “must prioritize placing pregnant immigrant youth in shelters in states where abortion has not been banned; and … if a minor is in a shelter where abortion is banned requests access to abortion, ORR must transfer her to another state where she can obtain care.”
In short, placement and transportation obligations were established to ensure abortion access, with the guidance also demanding timeliness in processing a minor’s abortion request.
These requirements, which were subsequently codified in a regulation by the Biden administration, not only recognize the all-too familiar horror stories of people who have sought an abortion in a ban state under one of the limited exceptions, they also recognize the horror stories of those who did not get appropriate medical treatment experiencing miscarriage because of abortion bans.
In addition, based on the existing regulation, the federal government must provide transportation for unaccompanied immigrant minors to an abortion provider, just as they are required to do for all other types of medical care. This requirement is also consistent with policies for adults in ICE detention and in federal prison, both of which also require transportation to an abortion provider.
But the government is poised to change the abortion access rules for unaccompanied immigrant minors. Although it has not yet posted the text of the proposed rule, it is titled “Updates to Accord with the Hyde Amendment”—an annual appropriations rider passed by Congress every year since 1976 that prohibits federal funds from being used to pay for abortions except in the case of life endangerment, rape or incest.
I fear for the future … The signs are evident, and very obvious, and a chill wind blows.
Justice Harry Blackmun, 1989
In conjunction with the Roe v. Wade anniversary in 2024, President Trump issued an executive order calling for the enforcement of the Hyde Amendment “to end the forced use of Federal taxpayer dollars to fund or promote elective abortion.”
The Office of Legal Counsel at the Department of Health and Human Services (HHS) heeded the president’s call by issuing an opinion in July 2025 revoking the same department’s prior memo on the subject. In its place, it adopted an unprecedented interpretation of the Hyde Amendment to extend beyond payment for the abortion itself to encompass transportation to abortion providers. In so doing, it offered the example of the existing policy recognizing that “transportation across State lines” may be necessary for access to abortion services, as a prime example of the Biden administration’s ostensibly errant read of the Hyde amendment.
As suggested by its title, the proposed rule will presumably seek to end transportation for minors to abortion providers, including when needed to transfer them to a shelter in a state where abortion is legal, thus potentially resulting in a de facto ban on abortion care for unaccompanied immigrant minors if ORR also prohibits private funds to be used for such transportation.
Also alarming is the possibility that ORR will repeal the provision of the current rule that emphatically states that it “must not prevent unaccompanied children in ORR care from accessing health services,” which includes abortion.
We won’t know what direction the rule will take until the proposed rule is released, but if the Trump administration’s antiabortion policies—such as the reinstatement of the Veterans Administration’s ban on abortion and abortion counseling, the defunding of Planned Parenthood and the reinstatement of an expanded global gag rule—are any indication, the rights of this marginalized population are at great risk.
We should heed Justice Harry Blackmun’s prescient warning as he anticipated the demise of Roe, “I fear for the future … The signs are evident, and very obvious, and a chill wind blows.”
Minors who come to the United States seeking safety should be treated with respect and dignity, and the Trump administration should not play politics with their healthcare. The law currently protects abortion access for minors in ORR custody. We must fight to keep it that way.
On March 17, the ACLU and the National Center for Youth Law filed a Freedom of Information Act (FOIA) request seeking transparency from the Trump administration about its reported actions sending pregnant minors to government-funded shelters in states with abortion bans despite federal policy that requires the Office of Refugee Resettlement (ORR) to prioritize placement of pregnant teens in states without bans.
This placement priority is a vital component of ORR’s existing obligation to ensure that unaccompanied minors have “access to all pregnancy related care, including abortion” and if any minor is denied access to this care, contact the ACLU: 212-549-2633.
