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Post date: August 7 2018

A.G. Underwood Leads New Brief Defending Unaccompanied Immigrant Minors' Access To Constitutionally-Protected Abortion Services

 News from the New York Attorney General's Office 

August 7, 2018

Attorney General's Office Press Office / 212-416-8060 


19 AGs Oppose Trump Administration’s Policy That Blocks Unaccompanied Immigrant Minors in Federal Custody from Accessing Abortion Services

Attorneys General Argue that the Law Imposes an Unconstitutional Undue Burden on Abortion Access, Infringes on States’ Rights

NEW YORK – Attorney General Barbara D. Underwood led a coalition of 19 Attorneys General in filing an amicus brief with the United States Court of Appeals for the District of Columbia Circuit, challenging a federal policy that prohibits unaccompanied immigrant minors in federal custody from accessing abortion services. The Attorneys General argue that the federal government’s policy violates both states’ rights and the constitutional rights of women. The brief was filed in Azar v. Garza in the United States Court of Appeals for the DC Circuit and urges the court to affirm the district court’s decision granting a class-wide preliminary injunction against the Trump administration.

“All women have a constitutionally-protected right to access safe and effective abortion services -- including unaccompanied minors,” said Attorney General Underwood. “Many of these young women have fled horrific violence, and some are pregnant as the result of rape. The Trump administration simply does not have the authority to force their personal views on these young women by requiring them to carry pregnancies against their will. The federal policy is unconstitutional and inhumane, and we will continue to fight it.”

Read the full brief, which was led by Attorney General Underwood and signed by the Attorneys General of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.

The Office for Refugee Resettlement, or ORR, is the federal agency responsible for the care and custody of all unaccompanied immigrant minors, many of whom enter the United States after fleeing from abuse in their home countries. In March 2017, ORR adopted a policy that requires Director Scott Lloyd to personally review every minor’s request for abortion services, even if that minor had complied with all applicable state-law requirements for obtaining an abortion in the State where she is housed. Lloyd has, in turn, rejected every request for abortion services, including in cases where a minor became pregnant as the result of rape in her home country. Lloyd has prohibited all ORR-affiliated shelters from taking minors to a doctor who will provide abortions and further instructed shelters to interfere with minors’ access to state-court judicial bypass proceedings. In addition, Lloyd has instructed shelters to disclose minors’ pregnancies to their parents and other family members, often overriding a minor’s express desire not to inform her family due to fear of reprisal.

ORR’s policy first came to light in October 2017, when ORR blocked access to abortion services for a minor named Jane Doe. Doe successfully obtained a temporary restraining order against ORR; the New York Attorney General’s office led an amicus brief in support of Jane Doe’s case. A federal district court subsequently granted another temporary restraining order to prohibit ORR from blocking two additional minors from accessing abortion services, including Jane Poe, a seventeen-year old who became pregnant as the result of rape and was denied access to an abortion by Lloyd. In January 2018, a fourth minor moved for a temporary restraining order and was released from federal custody within days of her court filing. In March 2018, the district court granted plaintiffs’ motion for class certification and issued a class-wide preliminary injunction barring ORR from blocking minors’ access to abortion services and from disclosing minors’ reproductive decisions without non-coerced consent. ORR appealed to the United States Court of Appeals for the DC Circuit. The States’ amicus brief urges the court to affirm the district court’s decision.

The Attorneys General argue that ORR has no authority to disregard the States’ judgments and procedures regarding minors’ ability to access abortion services. The brief also argues that, under the Supreme Court’s controlling “undue burden” standard, no third party may exercise an absolute veto over a woman’s reproductive choices. Accordingly, the federal government may not prohibit minors from exercising the choice to terminate a pregnancy that the federal Constitution and state law permit those minors to make.