Editor's note: This story has been updated with the results of a Wednesday court hearing.
A federal court has refused to hear the case of a pregnant 17-year-old undocumented immigrant at the center of a legal dispute over whether unaccompanied immigrant minors have the right to an abortion in the United States.
After being caught by immigration authorities, Jane Doe, as she's referred to in court filings, is currently at a shelter in Brownsville in the custody of the Office of Refugee Resettlement, a federal agency responsible for refugees and unaccompanied undocumented minors. Doe is seeking an emergency court order authorizing her to access abortion services after the federal office blocked her from attending a pre-abortion medical appointment, according to Susan Hays, legal director of Jane's Due Process, a nonprofit that provides legal representation for pregnant minors in Texas.
In a hearing Wednesday in a U.S. District Court in San Francisco, the American Civil Liberties Union tried to add Doe to a June 2016 case against the federal government – then run by the Obama administration – for allegedly allowing some religiously affiliated shelters to impose their religion on minors by prohibiting their access to abortion.
The California judge denied the request, arguing that she couldn't hear Doe's case because Doe is in Texas. However, the judge did say that "the government has no business blocking Jane Doe's abortion," said Brigitte Amiri, senior staff attorney with the American Civil Liberties Union Reproductive Freedom Project, in a statement after the ruling.
“Today’s District Court ruling comes as a serious disappointment, because it delays Jane Doe’s abortion even further,” Amiri said. "Jane Doe has already been blocked by the Trump administration from two appointments related to her abortion care. But she has shown tremendous courage and persistence, and we’re not giving up."
Both the ACLU and Jane's Due Process informed that they would continue to pursue a court ruling requiring the Office of Refugee Resettlement to let Doe leave the shelter to get the abortion she wants.
Hays said Doe already has the court authorization required for the procedure itself. Under Texas law, minors need their parents' permission or a court order to get an abortion.
"On Sept. 28, she was scheduled to go get her options counseling and state law-mandated sonogram by the same physician that will perform the abortion," Hays said. The young woman was scheduled for an abortion the next day.
But the Office of Refugee Resettlement refused to let Doe leave the shelter to go to the clinic, even accompanied by her guardian and attorney ad litem — the people who are appointed by a judge to be responsible for minors in her situation.
According to Hays, instead of going to the abortion clinic, Jane Doe was forced to go to a Crisis Pregnancy Center, where minors get counseling directed to dissuade them from having abortions.
"The shelter is under orders from the Office of Refugee Resettlement not to allow Jane Doe to access abortion," said ACLU attorney Brigitte Amiri in an interview with the Texas Tribune. She added that the agency refused to transport the minor themselves. "They are effectively holding her hostage."
Even though the ACLU's original suit was filed against the Obama administration, the organization argues that the Trump administration is now adopting a policy that directly prevents unaccompanied immigrant minors from obtaining abortions. "This is the federal agency with Trump appointees making this decisions," Amiri said.
In response to ACLU's attempt to add Doe to the case, Texas Attorney General Ken Paxton filed an amicus brief in the San Francisco U.S. District Court to defend "the federal government’s right to deny access to abortion services to an unlawfully-present minor alien in Texas," according to a Tuesday news release sent out by his office. Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina joined Texas in the brief.
“If ‘Doe’ prevails in this case, the ruling will create a right to abortion for anyone on earth who enters the U.S. illegally. And with that right, countless others undoubtedly would follow," Paxton said in the release, adding that "Texas must not become a sanctuary state for abortions.”
Amiri said Paxton's statement was "absurd" and "offensive" and said that it trivializes the conditions that cause unaccompanied minors to flee from their country, which can include abuse, violence and torture.
"60 to 80% of women are raped coming across the border," said Amiri. "I don't know why anyone would risk their lives and that kind of assault to come to this country solely for the purpose of trying to obtain an abortion."
According to news reports, Jane Doe is from Central America. Her hearing was held as the Trump administration is making a new push to have undocumented Central Americans returned to their home countries faster once they are apprehended by or turn themselves in to law enforcement.
Current law requires that unaccompanied minors from countries other than Mexico or Canada be processed by the federal government and placed with a relative or family member before they appear in immigration court.
Trump has insisted that the issue be included in a variety of immigration and border security overhauls he said Congress must consider before he moves forward with legislation to grant young undocumented immigrants, commonly known as "Dreamers," legal status.
“These loopholes in current law create a dramatic pull factor for additional illegal immigration and in recent years, there has been a significant increase in the apprehensions of [unaccompanied minors] at our southern border,” a fact sheet from the Department of Homeland Security states.
After 2014, the year more than 68,500 unaccompanied children illegally crossed the southwest border into the United States, the number dipped to about 40,000 in 2015. The figures include about 50,000 and 23,800 children that crossed into Texas through the Border Patrol’s Rio Grande Valley sector, respectively. In 2016 the total number jumped to about 60,000, including 36,700 in the Rio Grande Valley sector, according to Customs and Border Protection statistics.
Julián Aguilar contributed to this report.
Read related Tribune coverage:
Whole Woman's Health Clinic has already put more than $8,000 toward providing abortions for women affected by the hurricane. [Full story]
A federal judge delayed for two weeks enforcement of part of a state law that bans the most common second-trimester abortion method. [Full story]
The Heidi Group, an anti-abortion organization, is losing $4.1 million in state funding to offer reproductive health services for women after failing to serve as many patients as it thought it could. [Full story]