On November 15, 2017, WCL’s new chapter of If/When/How hosted Sawyah Esmaili, a reproductive justice fellow at the National Latina Institute for Reproductive Health for a Tea Talk entitled “Garza v. Hargan: Minors, Immigrants, and Reproductive Rights.” If/When/How is a national organization designed to help law students and other legal professionals support and advance reproductive justice in the United States. They define reproductive justice as a tool to analyze how an individual’s various identities affect their ability to determine their own reproductive destiny. This takes into account several factors such as race, class, sex, sexual orientation, gender expression, age, and immigration status, and the case Ms. Esmaili discussed with the group centers on the last two of these variables.
Garza v. Hargan centers on Jane Doe, a seventeen-year-old girl who came to the United States alone in early September of 2017. While living in a government shelter in Texas, she discovered that she was pregnant and requested an abortion at eleven weeks gestation. Texas state law dictates that any minor who wishes to have an abortion without the consent of their parents needs to obtain a judicial bypass at or before twenty weeks gestation, at which point the state has outlawed abortion altogether. Jane appeared before a judge, received her judicial bypass, and was able to secure adequate funding and transportation, but was still prevented from receiving her abortion as the shelter would not allow her to leave. The policy of the Office of Refugee Resettlement (ORR) is that federally funded shelters are prohibited from taking action toward an abortion without the explicit permission of its director, Scott Lloyd. Mr. Lloyd, who previously advocated for women obtaining contraceptives through government programs to be required to sign a pledge stating that they would not seek an abortion were the contraceptive to fail, has also intervened on several occasions when unaccompanied minors in ORR programs have sought abortions, positioning himself as though he were a parent making the best choice for his child.
Rather than transporting Jane to a medical facility to obtain her court-approved abortion, the ORR shelter took her to a crisis pregnancy center and called her parents back at home, informing them of the choice their daughter was attempting to make. On October 18, 2017, the U.S. District Court for the District of Columbia granted a temporary restraining order preventing the government from interfering with Jane’s access to her abortion provider. However, the government sought an emergency stay from the U.S Court of Appeals for the DC Circuit, which set aside key portions of the restraining order and remanded to the District Court in search of a sponsor for Jane on October 20. After an ACLU petition requesting that the case be reheard was accepted, the DC Circuit Court denied the government’s request to stay the District Court decision on October 24, and Jane received her abortion the following day.
Ms. Esmaili also discussed the constitutional issues she sees in Jane’s case, specifically those surrounding the first and fifth amendments. The judicial bypass procedure, which forces minors to reveal extensive medical information to a judge, is a direct violation of the fifth amendment right to privacy, as was the ORR shelter forcing her to disclose information to a crisis pregnancy center and the center revealing her pregnancy to her parents. The ORR shelter forcing Jane to go the the crisis pregnancy center at all was a violation of her first amendment rights, as it discredited her viewpoint on abortion on the whole.
Ultimately, Jane was able to receive an abortion within a safe time frame, but her struggle is not singular nor has the litigation surrounding the issue ended. The ACLU is pursuing the issue as a class action case to ensure that similarly situated minors do not encounter the same roadblocks. As a countermeasure, government officials have called for sanctions to be placed on the ACLU lawyers who worked on the case, on the basis that they did not inform the government of when the abortion would occur. The government, given the ability to dictate who has access to abortions, walks itself into a catch-22 in which undocumented minors are pressured not to have the procedure but are demonized when they give birth to “anchor babies”. The government should not be able to determine who has access to a safe and legal abortion, nor should anyone be forced to inform the government of their procedure.