National Partnership for Women & Families

In the News

ACLU files lawsuit over immigrant minors' access to abortion care, contraception

The American Civil Liberties Union (ACLU) on Friday filed a lawsuit against HHS over the allocation of federal funds to religiously affiliated organizations that deny access to abortion and contraception to unaccompanied, immigrant minors placed in their care, the New York Times reports.

Background

According to the Times, tens of thousands of undocumented and unaccompanied immigrants under age 18 are caught crossing the southern border of the United States each year. Refugee experts report that many of these minors have been sexually assaulted while in their country of origin or on their journey to the United States.

The Office of Refugee Resettlement takes custody of unaccompanied immigrant minors and often places them with private organizations for several months before they are either deported or taken to a sponsor. In 2016, more than 30 private agencies received government grants to take in undocumented, unaccompanied immigrant minors.

ACLU reports that of those agencies, at least 11 are operated by the Catholic Church or other groups that oppose contraception and abortion care. In a statement last year, the Catholic bishops' conference and allied organizations said they would not help someone access health care services to which they object. They also said they would not agree to accommodations proposed by the federal government that would have paired the agencies with organizations that do not object to contraception and abortion care. Similarly, the religious groups rejected an accommodation under which they would have notified federal officials when a minor wants access to such services so he or she can be moved.

Overall, it is unclear how many minors arrive pregnant or become pregnant while in federal custody, or how many of the minors are placed with religiously affiliated agencies. Moreover, experts note that agencies might not report to federal officials some pregnancies and requests for abortion care among minors, because the federal government withholds coverage of abortion care except in limited circumstances. According to the Times, private agencies may only be reimbursed for the cost of abortion care with federal funds in instances of rape or incest.

Lawsuit details

ACLU filed the lawsuit in federal court in San Francisco. In the lawsuit, ACLU contends that the government allocates federal funding to social agencies so that they may provide the full range of medical care, including birth control and abortion care, to minors in their care. However, by permitting some of those agencies to refuse to provide care based on religious objections, ACLU alleges that the federal government is violating the First Amendment.

According to the Times, ACLU in the lawsuit pulled data from several thousand internal documents and emails to spotlight approximately 24 cases from the past five years in which pregnant minors requested abortion care. Some of the minors were eventually transferred to alternative caregivers, where they were able to obtain abortion care, the Times reports.

For example, according to the lawsuit, one 17-year-old woman, who said she had been raped during her journey to the United States, requested an abortion and said she would commit suicide if denied care. She was removed from the Catholic organization where she had been placed and denied by a second agency before federal officials placed her with an agency that would ensure her access to an abortion. According to ACLU, that agency was located "away from the social workers and other shelter support staff who constituted [the minor's] only support system in this country."

In another case, the ACLU said a 14-year-old girl caught at the border asked for an abortion. Officials planned to send her to an agency in Florida near her relatives, but a federal official noted that "both of the shelters in Florida are faith-based and will not take the child to have this procedure."

ACLU asserts that a 1997 court settlement, called the Flores agreement, mandates that the federal government ensure immigrant minors have medical care including "family planning services and emergency health care services." In addition, federal regulations enacted since that agreement require that unaccompanied minors who have been sexually assaulted while in federal custody have "unimpeded access to emergency medical treatment," provided a pregnancy test and be given "timely and comprehensive information about all lawful pregnancy-related medical services."

Brigitte Amiri, a lawyer with ACLU, said placement decisions "should be based on what is in the best interests of the child." She added, "We think it's impermissible to allow the religious beliefs of the care providers to determine where the children are placed" (Eckholm, New York Times, 6/24).