Who controls Jane Doe’s body?

October 26, 2017

Nikki Williams reports on the twists and turns of the federal government's bigoted legal battle to deny a young undocumented immigrant woman the right to an abortion.

AN UNDOCUMENTED teen being held at a government detention shelter in Texas was finally--after weeks of delays and court hearings--able to obtain the abortion this week that she had requested in early September.

The 17-year-old, known as Jane Doe, was detained shortly after crossing the U.S.-Mexico border as an unaccompanied minor on September 7. She was given a physical examination and learned that she was nine weeks pregnant.

Though she decided to have an abortion, the state of Texas and the federal government attempted to prevent the procedure.

According to Texas law, minors seeking an abortion must have parental consent or have special permission granted by a judge. A state judge granted that permission, and Jane Doe's abortion was scheduled for September 25.

The ordeal should have ended there, but under Texas's misnamed "Women's Right to Know Act", those seeking abortions are forced to undergo a medically unnecessary ultrasound 24 hours before an abortion, during which the pregnant person is subjected to seeing the fetus and the doctor must go over state-mandated information about the stages of development, adoption options and possible medical risks. Then the patient is subjected to a 24-hour waiting period.

Activists in Dallas rally for the reproductive rights of a young woman in an immigrant detention facility
Activists in Dallas rally for the reproductive rights of a young woman in an immigrant detention facility

On the day of the ultrasound appointment, Jane Doe was denied transportation to the clinic, under the theory that transporting her to her appointment would have been considered "facilitating an abortion"--which is not permissible, since the privately owned detention shelter is funded by the federal government.

The shelter is managed by the Office of Refugee Resettlement (ORR), which has adopted anti-choice policies under the Trump administration and ORR Director E. Scott Lloyd, who is staunchly anti-choice.

Federally funded shelters must obtain written authorization from Lloyd before assisting in abortions in any way. In an e-mail to colleagues in March, Lloyd stated that shelters receiving federal funding "should not be supporting abortion services pre- or post-release; only pregnancy services and life-affirming options counseling."

The American Civil Liberties Union (ACLU), which represented Doe in court, says that Lloyd has personally contacted at least one other pregnant unaccompanied immigrant minor to "discuss" her decision to get an abortion.

Instead of going to an abortion clinic, Doe was forced to go to a "crisis pregnancy center." While there, she was prevented from participating in any recreational activities as the staff attempted to dissuade her from having the abortion.

Lloyd also reportedly made the shelter call Doe's mother in her home country, informing her about the pregnancy, despite the fact that Doe had said her mother was physically abusive. According to reports, Jane Doe stated that she did not want her parents to know about her pregnancy because her older sister had been pregnant and was beaten by her parents until she miscarried.

THE ACLU got involved with the case and filed a lawsuit to demand that Jane Doe be allowed to obtain the abortion. "The federal government is holding Jane Doe hostage and preventing her from having an abortion," said Brigitte Amiri, senior staff lawyer for the ACLU. "It is blatantly unconstitutional."

The Trump administration claimed that it was not preventing Jane Doe from obtaining an abortion because she could "choose" to return to her home country, which would take her out of immigration proceedings in the U.S. But abortion is illegal in Jane Doe's native country in Central America.

On October 18, U.S. District Court Judge Tanya Chutkan ruled that Jane Doe could have an abortion, and she was taken to a clinic for the mandatory ultrasound so that she could get the procedure without further delay.

But before the procedure took place, a three-judge panel from the D.C. Circuit Court of Appeals issued an administrative stay of that ruling--and, on October 20, ruled that Doe must have a sponsor selected by the government to accompany her to her appointment.

Though no federal money was going to the procedure--which was paid for by a private donor--this ruling meant that neither the young woman's lawyers, a court-appointed representative nor shelter staff could take her to her appointment.

Fear began to grow that the state was attempting to delay long enough to put Jane Doe--who was 16 weeks pregnant by that time--past the 20-week threshold at which Texas bans abortion, except in life-threatening cases. Finding a sponsor who passed government vetting easily could have taken months.

The ACLU once again took action and got an emergency hearing with U.S. Court of Appeals for the D.C. Circuit. On October 24, the court ruled 6-3 in favor of overruling the earlier decision, and sent the case back to Judge Chutkan, who ruled the same day that Jane Doe should be transported to an abortion clinic "without delay."

The ACLU announced Doe had finally been able to obtain an abortion on October 25--but only, it appears, because government lawyers miscalculated the amount of time it would take Doe to get the abortion, which took place that morning.

Had the case been delayed much longer, however, Texas law would have required that the abortion occur in an ambulatory surgical center or hospital, which would have meant that the teen would have had to travel some 200 miles for the procedure.

JANE DOE has found herself at the intersection of two things Trump and his administration have demonstrated tremendous hostility toward: the rights of women and undocumented immigrants.

The appeals court decision that kicked the case back to Judge Chutkan was divided down party lines, with six Democratic appointees voting in favor. But even their statements were condescending and centered on portraying Doe as a "child having a child"--rather than as a young woman capable of making an informed choice about what should happen to her body and whether or not she wanted to be a mother.

The three Republicans who dissented in the case used Jane Doe's status as an undocumented immigrant to fan fears that immigrants seeking abortions will now be flooding U.S. borders. One of those dissenting judges, U.S. Circuit Judge Brett Kavanaugh, is being eyed by Trump for a potential future vacancy on the Supreme Court.

Texas Attorney General Ken Paxton tied his distaste for abortion and bigotry against undocumented immigrants together in just a few sentences by saying, "Unlawfully present aliens with no substantial ties to the U.S. do not have a right to abortion on demand...Texas must not become a sanctuary state for abortions."

In the 45 years since Roe v. Wade legalized abortion, hundreds of restrictive laws at the state and federal level have created numerous obstacles for anyone seeking to end a pregnancy.

For over a month, Jane Doe was at the mercy of countless people who were given control over her decision--a violation of her autonomy over her own body. That violation was compounded by the additional psychological torment she was subjected to because of her undocumented status.

We have to fight for a world where no one can be forced to carry an unwanted pregnancy at the whim of politicians and judges, and where the right to abortion on demand is respected for anyone who wants to terminate a pregnancy.

Every city, town, state must be a place of sanctuary for undocumented immigrants. And we must fight for a world where people are free to migrate based on desire rather than being forced to flee as a result of neoliberal policies that have devastated the poor and working class across the globe.

In a statement issued by the ACLU, Jane Doe affirmed her right--and the rights of all people--to control their own bodies:

I made my decision, and that is between me and God. 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.

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