What are undocumented immigrants’ rights to abortion access while in custody?

Immigration, Family/Kids, Rights

Do undocumented immigrants have the right to an abortion? This is the underlying issue in the case of Garza v. Hargan, although rulings in the case to date have revolved around the practical question of how an undocumented person in government custody could exercise her right to an abortion.

Background of Garza v. Hargan

Seventeen-year old Jane Doe had entered the United States illegally and was being held in government custody at a Health and Human Services (HHS) shelter for unaccompanied minors in Texas. While there, she discovered she was pregnant. She requested an abortion (and had the money to pay for it), but Texas law required her to have parental consent or to obtain a judicial waiver. A state judge granted the waiver, but the shelter wouldn’t transport her to an abortion clinic or allow her to leave on her own. Jane Doe’s guardian ad litem and the American Civil Liberties Union (ACLU) sued HHS in federal court, asserting Jane Doe’s right to abortion access.

Consecutive rulings

A federal district court first ordered the government to transport Jane Doe—or allow her to be transported by her court-appointed guardian—to obtain an abortion. But a three-judge panel of the United States Court of Appeals for the District of Columbia ordered that a sponsor who could assume responsibility for Jane Doe, including taking her to the clinic, had to be found and approved. The full D.C. Court of Appeals then overturned that order, directing HHS to transport Jane Doe to an abortion facility.

The court held that it was not up to her to find a sponsor or find her way out of custody because doing so placed untenable obstacles in her way. The court instead decided that it was the government’s responsibility to provide the transport she needed since she was in their care, and, most importantly, it affirmed her right to an abortion. On October 25, 2017, Jane Doe got her abortion. 

A legal precedent… until it’s not

You might think that this outcome settled the matter, but the appellate court ruling was only in the form of a temporary restraining order. On November 3, the federal government, which, under the Trump administration has sought to limit abortion access, petitioned the U.S. Supreme Court to vacate the appellate court’s order—thereby nullifying it as a legal precedent. All sides now await word on whether the case will make the Supreme Court’s docket, and if so, how the Court might rule on the constitutionality of abortion rights for unaccompanied undocumented minors.