Last year, an undocumented immigrant teenager tried to get an abortion while in the custody of the United States government. When she had already begun the abortion procedure, government officials discussed whether they could stop her from terminating her pregnancy using a method of abortion “reversal” that is not supported by science.
The teenager’s story, reported by Carter Sherman of Vice News, is part of a larger pattern. The Office of Refugee Resettlement, headed by E. Scott Lloyd, is responsible for caring for undocumented, unaccompanied minors. Since shortly after President Trump took office, it has adopted a policy to attempt to prevent those minors from getting abortions. In addition to considering the “reversal” procedure, which was never performed on this teenager, the office has tried to keep minors from being taken to abortion clinics, required them to get anti-abortion counseling, and even sought to punish lawyers who helped a teenager win her case and get the procedure.
These measures, advocates say, are in direct violation of the constitution. Under Roe v. Wade, “the government can’t ban abortion for anyone,” said Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union’s Reproductive Freedom Project. But that argument hasn’t swayed ORR or Lloyd, a longtime opponent of both abortion and contraception.
The ACLU is engaged in a months-long legal battle to ensure that minors in ORR custody have abortion access. On March 30, the group scored a victory — a US District Court judge ruled that ORR could not block minors from getting the procedure, pending the result of a class action suit. Government lawyers have asked for a stay and plan to appeal this decision, according to the New York Times.
Meanwhile, in a deposition released at the end of February, Lloyd said he does not believe unaccompanied minors have a constitutional right to an abortion. According to another deposition, filed on April 4, Lloyd also required staffers to give a minor an anti-abortion booklet and read a graphic description of an abortion procedure. His office’s efforts to keep young people from terminating their pregnancies are a major part of a larger agenda, shared by many in the Trump administration, of restricting access to reproductive health care.
The Trump administration considered subjecting a teenager to a treatment unsupported by science
On March 3, 2017, a 17-year-old in the custody of ORR in Texas took the first dose of medication to induce an abortion, Sherman reports at Vice. She told authorities the pregnancy was the result of rape, and had already obtained the judicial bypass necessary for minors in Texas to get an abortion without parental notification.
Medication abortions typically consist of two pills, taken 24 to 48 hours apart. After the teenager took the first pill, however, the acting director of ORR, Kenneth Tota, sent a memo to staff saying shelters could not let minors get abortions without written permission from the ORR director. The memo mentioned the Texas teenager, referring to her as “the UAC” or “Unaccompanied Alien Child.”
“If steps can be taken to preserve the life of the UAC and her unborn child, those steps should be taken,” Tota wrote.
The same day he sent the memo, an official at the shelter housing the teenager sent an email questionnaire to the clinic supervising her abortion, Sherman reports. “To the best of your knowledge and clinical practice,” one of the questions read, “is the administration of progesterone following administration of Mefiprix, but before the administration of Cytotec, for the purpose of aborting a chemical abortion process, widely practiced?” (Vox has also reviewed the email.)
Mifeprex and Cytotec are two drugs used in medication abortion. “Mefiprix” appears to be a misspelling; elsewhere in the email, the spelling “Mefriprix” is also used.
The answer to the official’s question was no — the administration of progesterone to stop or “reverse” a medication abortion is not widely practiced. It is an experimental technique supported by some anti-abortion advocates, despite a lack of research to back it up.
In 2012, two doctors published a case series on seven patients treated with progesterone after taking the first pill in a medication abortion regimen, according to the New York Times Magazine. In four cases, the fetus survived. The American College of Obstetricians and Gynecologists has been critical of the case series, noting that it was not a controlled study and therefore does not prove that the progesterone, rather than some other factor, caused the fetuses to live. In fact, ACOG noted in a 2015 statement, simply missing the second abortion medication pill might allow a fetus to survive, since the first pill, on its own, doesn’t always result in an abortion. What’s more, progesterone, while usually safe, can have cardiovascular and neurological side effects.
That hasn’t stopped a number of state legislatures from introducing bills based on the idea that abortions can be reversed with progesterone. Laws in Arkansas, Arizona, and South Dakota require that patients be told about the possibility of abortion reversal as part of mandatory abortion counseling, according to the Guttmacher Institute.
In the case of the teenager seeking an abortion last March, the clinic never responded to ORR’s questions, Sherman reports. The teenager was taken to a hospital and examined, but there’s no evidence she ever received progesterone. Ultimately, she was allowed to take the second medication and complete the abortion.
But at least for a time, the federal government appears to have considered putting her through a medically unsupported procedure to stop her from continuing with an abortion she’d requested. As reporter Robin Marty put it on Twitter, “the Trump administration had discussions about performing medical experiments on an undocumented minor simply because she was in their custody and they thought they could.”
The reversal discussion was part of a larger pattern in the Trump administration
Since Trump took office, the ORR, part of the Department of Health and Human Services, has tried to restrict access to abortion for multiple minors in its care. In October, ORR blocked a 17-year-old identified as Jane Doe from leaving a Texas immigration shelter to get an abortion; the ACLU filed suit on her behalf, and she ultimately won her case and was able to get the procedure.
Since then, the ACLU has worked on behalf of three more unaccompanied minors seeking abortions, identified as Jane Roe, Jane Poe, and Jane Moe. Roe and Poe were able to get the procedure, and Moe was released to a sponsor and is no longer in federal custody, Amiri told Vox.
ORR’s efforts to block abortions for minors are “absolutely unconstitutional,” Amiri says. “Essentially vetoing their decision to have an abortion” she explains, “is a blatant violation of the holding in Roe v. Wade that says that the government can’t ban abortion.”
But it remains ORR policy to require unaccompanied minors to get the director’s permission for an abortion. In a December deposition in a case before a federal district court in California, released by the ACLU at the end of February, Lloyd said he believes that, because of their immigration status, unaccompanied minors do not have a constitutional right to an abortion.
This is not the government’s official position on unaccompanied minors — the Trump administration has argued that it is not actually infringing on minors’ constitutional rights, since they could get an abortion by returning to their home countries or finding someone to sponsor them in the United States, allowing them to leave ORR custody. “If they choose not to exercise these options, HHS does not believe we are required to facilitate the abortion,” a spokesperson said in a December statement, according to Vice.
Still, both Lloyd’s position and the government’s slightly modified official version have serious implications. By arguing that unaccompanied minors have no constitutional right to get an abortion in the United States, the government is essentially saying “that they do not qualify as ‘person[s]’ under the Due Process Clauses of the Fifth and 14th Amendments,” Perry Grossman and Mark Joseph Stern write at Slate. “Put simply, undocumented women are not people for constitutional purposes.”
If Lloyd, the official in charge of caring for unaccompanied minors in the United States, believes they are essentially non-persons under the constitution, the consequences could be severe. Lloyd, who was appointed as ORR director by Trump in spring 2017, also said in the December deposition that he believes abortion is the destruction of human life. However, as Ema O’Connor reports at BuzzFeed News, he added that he does not think his beliefs would prevent him from discussing abortion with minors in a “neutral” way.
Lloyd also said he had never, to his knowledge, approved a request for an abortion. And he and his office have taken many steps to dissuade minors from having the procedure. In addition to considering abortion “reversal” and blocking transportation to clinics, ORR has also required unaccompanied minors to receive anti-abortion counseling at crisis pregnancy centers and has notified family members in their home countries of their intent to get an abortion, without the minors’ consent, Amiri said. In one case, a minor’s advocate cautioned that her father might retaliate against her mother if they were notified about their daughter’s intended abortion; ORR notified the parents anyway, Amiri said.
In another case, Lloyd met personally with a minor to try to talk her out of the procedure, according to the ACLU. In the December deposition, Lloyd confirmed that the meeting took place, but said she had already decided not to have an abortion. He said they discussed her pregnancy “generally.”
In another deposition, filed on April 4, Lloyd said that he had required a minor to read a booklet produced by the Texas Department of State Health Services that makes false claims about links between abortion and breast cancer, infertility, and depression, according to Slate. He also required a staffer to read to the minor a description of an abortion procedure, to ensure she had “informed consent.” Lloyd said he had not required pregnant minors to listen to similar descriptions of childbirth or C-sections.
“When there’s a child in the program who is pregnant,” Lloyd “has been reaching out to her and trying to help as much as possible with life-affirming options,” an HHS spokesperson told the Washington Post in October. “He by law has custody of these children, and just like a foster parent, he knows that that’s a lot of responsibility and he is going to make choices that he thinks are best for both the mother and the child.”
Lloyd has a long history of advocating against abortion and contraception, as Rachel Siegel outlines at the Post. “Contraceptives are the cause of abortion,” he wrote in a 2011 essay. “In fact, if we did not have contraceptives in this country, we would not have anywhere near the abortion rate we do now.” In 2009, he argued that women using taxpayer-subsidized contraception should have to “promise not to have an abortion if the contraception fails, which it often does.”
He is one of several anti-abortion advocates now serving in Trump’s HHS, as Vox’s Julia Belluz notes. Others include Charmaine Yoest, the former president and CEO of Americans United for Life and now an assistant secretary at HHS, and Matthew Bowman, who once worked for the anti-abortion group Alliance Defending Freedom and recently helped craft the Trump administration’s weakening of the contraceptive coverage mandate.
Overall, Trump has stocked the department with appointees who favor restricting access to reproductive health care; efforts to keep unaccompanied minors from getting abortions are part of that larger agenda. When asked by Vox for a comment, an HHS spokesperson responded, “We do not have additional comment at this time.”
The future of abortion access for unaccompanied minors remains uncertain
Although Jane Doe and the teenager described in Sherman’s story have already gotten their abortions, the Trump administration is still fighting the issue in court. The government has petitioned the Supreme Court to vacate the decision in Jane Doe’s case and to consider disciplinary action against Doe’s lawyers, a tactic Dahlia Lithwick and Mark Joseph Stern at Slate called “a flagrant effort to crucify the individual attorneys who represented Doe, and to terrify likeminded lawyers into acquiescence.” The Supreme Court is scheduled to meet to decide whether to take that case in mid-February, Amiri said.
Meanwhile, it may be only a matter of time before another case like the one Vice documented comes to light. “At any given time, there is a minor in custody who would at least want abortion information,” Amiri said.
According to a court declaration by an ORR official, 420 pregnant minors entered ORR custody between October 1, 2016, and September 30, 2017. Eighteen minors requested abortions, 11 received them, and five “rescinded their request” (two minors were placed with sponsors and may or may not have had abortions). Amiri believes more minors may have desired abortions but gone uncounted by ORR. “There are probably many young women who are considering abortion or just want information about their options and their requests fall on deaf ears,” she said.
The ACLU has filed a motion for class certification to help all unaccompanied minors get access to abortion without interference from ORR. On March 30, US District Court Judge Tanya Chutkan granted the motion, meaning the ACLU can move forward with a class-action suit. According to BuzzFeed, it may be at least six months before a trial begins. Lawyers for the Trump administration have asked for a stay of Chutkan’s decision and plan to appeal.
In the meantime, Chutkan has ruled that ORR cannot stop unaccompanied minors from getting abortions. “ORR’s policy is premised on the notion that the Director is entitled to exercise complete control over [minors’] reproductive decisions by virtue of the fact that they are undocumented minors in ORR custody,” Chutkan writes in her opinion. “The adoption and implementation of such a policy is itself sufficient to raise constitutional flags.”