Paxton files amicus brief in case regarding unaccompanied minor's request for abortion

By Dee Thompson | Oct 18, 2017

SAN FRANCISCO – A pregnant 17-year-old unaccompanied immigrant known only as Jane Doe has been added to a case pending in the U.S. District Court of the Northern District of California that seeks to preserve her right to have an abortion in Texas.

Susan Hays, the legal director of Jane’s Due Process, a legal services organization for minors in Texas facing unplanned pregnancy, told The Southeast Texas Record in regard to Jane Doe, “It’s awful to do this to a kid.” 

She explained that in many cases, the minors who cross the border illegally are pregnant as a result of rape. 

“The drug cartels, particularly as cannabis is legalized, and their drug demand is dropping, they are turning to human trafficking as an income source. We’ve helped in cases where minors were held in houses and gang-raped for weeks on end. It’s awful. It’s extremely dangerous,” she said.

Hays is working with the ACLU in this litigation, filed in 2016 by the American Civil Liberties Union (ACLU) against Don Wright, the acting Director of Health and Human Services, and the United States Conference of Catholic Bishops, seeking to get better access to abortions for undocumented minors. 

In a press release, the ACLU explained they felt it necessary to file the lawsuit “...against the federal government for awarding millions of dollars to organizations that fail to provide crucial medical care to unaccompanied immigrant minors. The government authorizes some of these organizations to refuse – on religious grounds – to follow the law that requires access to contraception and abortion, even in cases of rape.”

An amicus curiae (friend of the court) brief filed by the attorneys general of seven states in the lawsuit, including the Texas attorney general, says the brief has been filed because “Plaintiffs ask the court to declare that the U.S. Constitution confers on unlawfully present aliens the absolute right to an abortion on demand even when they have no ties to this country other than the fact of their arrest while attempting to cross the border unlawfully. As far as amici can ascertain, no court has ever issued such a sweeping order—and with good reason. If the court grants the requested relief, there will be no meaningful limit on the constitutional rights an unlawfully present alien can invoke simply by crossing the border. Such relief would also contradict longstanding Supreme Court precedent that full Fifth Amendment rights vest only in those aliens who 'have come within the territory of the United States and developed substantial connections with this country.'" 

Susan Hays explains that the mission of her nonprofit, Jane’s Due Process, is mainly to help teenagers in Texas deal with a crisis pregnancy, regardless of whether they choose to terminate or not. 

However, Jane’s Due Process has also stepped in, when asked, to help minors who come across the border. 

“We have, over many years, occasionally helped so-called unaccompanied minors, (UAMs -- immigrants who are less than 18) who are picked up by border patrol. When border patrol picks up a minor they immediately take them to the Office of Refugee Resettlement (ORR), which is part of Health and Human Services. It’s not part of Homeland Security. It’s a humanitarian function. Then the minors are interviewed and they figure out if there are any relatives in this country, and they find a relative to place them with, and their immigration case starts. So that’s how it typically works.”

However, Hays explained that in the case of pregnant UAMs, “Because Texas has a parental consent to abortion statute, these UAMs have to go through bypass. We help them do that - find an attorney, get it filed.” 

The bypass allows the minor to get an abortion without parental consent.

The Jane Doe is from Central America. 

“She crossed Mexico by herself and got here," Hays said. "She did not know she was pregnant until she got to the shelter. We were first contacted on Sept. 17, Jane’s Due Process, about helping her with a bypass.” 

The bypass was obtained and an attorney was appointed to be Jane Doe’s guardian ad litem. A guardian ad litem is an attorney whose duty is to protect the interests of the child.

However, those in charge at the ORR shelter where Jane Doe is staying are refusing to release her to go with her Guardian Ad Litem to get her abortion.

“They are denying her access to health care, which is child abuse. They are also haranguing her. They know she wants an abortion but they are going up to her and saying things like what are you going to name your baby? They forced her to go to a crisis pregnancy center, to be lectured to and given an unnecessary sonogram,” Hays said.

Hays notes that Jane Doe did not want her mother in Central America told about the pregnancy because “She had an older sister come home pregnant and her mother and father beat the sister with wooden sticks and a cable until she miscarried. So she does not want to involve these people and ORR violated that bypass order, told the mother anyway, and they are haranguing her to talk to her mother on the phone. So far, she has refused to talk to her mother.”

Hays says the best-case scenario, and one she is working towards, is for Jane to get her abortion soon, before the pregnancy progresses further, going into the second trimester. However, Hays feels that in the current political climate action may be delayed until Jane is forced to give birth. Hays notes in the case of many of these unaccompanied minors. 

“They’ve been treated poorly wherever they have lived, and told what to do with their bodies and themselves. They come to this country looking for safety and some liberty and somebody else tells them what to do with their bodies,” Hays said.

Hays said that the ACLU has learned in this case that Scott Lloyd, who is President Donald Trump’s appointee to ORR, has been flying to Texas and going to shelters to personally talk to pregnant UAMs. 

“That’s what they have been doing to these UAMs since Scott Lloyd came in as head of ORR. He has made it his priority -- and he has said this to shelter workers who have shared it with me -- to save unborn children and not care for the refugees that he’s tasked with caring for. He is using the power and the money of the federal government to do it, which is a violation of the First Amendment,” Hays said.

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