Justice for Jane

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When a person crosses a border, they still carry fundamental human rights- including the right to choose if, when, and how they have a family. Bethany Van Kampen from the National Latina Institute for Reproductive Health discusses the reproductive health needs of migrants fleeing their home countries and how these needs are failing to be met in the United States.

Migrants flee to the U.S. from home countries due to intersectional discrimination caused by natural disasters, economic inequality, violence, and other factors. More than 120,000 young people (ages 6-17) from Guatemala, El Salvador, and Honduras arrived to the U.S. between 2014-2016. Unaccompanied minors are sent to shelters run by the Office of Refugee Resettlement (ORR) within 72 hours. The ORR is responsible for 7,700 unaccompanied minors, including hundreds of pregnant minors.

The ORR has a legal duty to provide comprehensive medical care, (including a full range of reproductive health care) to those in custody. Most of these unaccompanied minors were able to access this care under the Obama administration.

In March of 2017, the Trump administration issued a new interpretation of a George Bush-era policy that gives the ORR the ability to increase their involvement with patient’s medical needs if they include certain procedures, like surgery or abortion. The administration altered the policy so that any federally-funded shelter may not facilitate abortion without direction and approval from the Office of Refugee Resettlement Director.

Scott Lloyd, the current director for the ORR, was previously a lawyer with Knights of Columbus. He has suggested in the past that women who obtain federally-funded contraception should have to sign a non-abortion pledge. He has also argued that the Supreme Court’s ruling on abortion infringes upon a man’s right to procreate. He continues to argue for ‘abortion reversal,’ which is scientifically unproven and potentially harmful. He has personally shamed and coerced young people in custody to continue with their unwanted pregnancies.

Jane Doe is a 17-year old that entered the U.S. through Texas from Central America. After finding out she was 11 weeks pregnant, she requested an abortion. Under Texas abortion law, a minor can obtain an abortion through a judicial bypass, which allows the minor to procure an abortion without the consent of a parent or guardian. Jane went before a judge and argued for a judicial bypass, and on September 25, 2017, it was granted to her. Despite obtaining the judicial bypass, securing her own funding, and her own transportation, the ORR blocked her from leaving the facility to get her abortion. They did, however, transfer her to a Crisis Pregnancy Center (CPC), where they forced her to review an invasive sonogram performed against her will, by non-medical personnel.

After filing a lawsuit against the administration, the DC District Court ordered that Jane be allowed her abortion. The government appealed to the DC Circuit. Eventually, the case was deferred back to DC District Court, and Jane was allowed to receive her abortion in her 16th week of pregnancy (Texas bans abortion access at 20 weeks of pregnancy). Jane Doe was released from custody to a sponsor on January 15, 2018.

In December 2017, the ORR again tried backing two other undocumented minors, Jane Poe and Jane Roe, from receiving abortion care. The ACLU filed a lawsuit on their behalf, and the judge ruled that the girls be allowed to terminate their pregnancies. The Justice Department appealed to the DC Circuit and Supreme Court, but only for Jane Roe. Jane Poe could now access her abortion. Before a decision could be made, it was revealed that Jane Roe was 19, meaning she could access her abortion under ICE’s custody.

Another girl, Jane Moe, was blocked for more than two weeks by ORR until she was able to get a sponsor.

 This federal campaign to shame, bully, and deny care to young women in custody is unconscionable, an abuse of power, and an invasion of privacy. Everyone should be able to access the health care they need, including abortion, and no one should face political interference in their health care decisions, including while a person is detained.

Links from this episode

National Latina Institute for Reproductive Health
NLIRH Twitter
NLIRH Facebook

Transcript

Jennie: Welcome to rePROs Fight Back a podcast on all things repro. I'm your host Jennie Wetter. In each episode, I'll be taking you to the front lines of the escalating fight over our sexual and reproductive health and rights at home and abroad. Each episode, I will be speaking with leaders who are fighting to protect our reproductive health and rights to ensure that no one's reproductive health depends on where they live. It's time for repros to fight back.

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Jennie: Thanks for tuning in to rePROs Fight Back. Welcom to rePROs Fight Back. This week's episode is about Justice for Jane. So today I'm really excited to talk to Bethany Van Kampen, Senior Policy Analyst at the National Latina Institute for Reproductive Health. Welcome Bethany, and thank you for being here.

Bethany: Thanks for having me.

Jennie: All right, so I figured out a good place to start is to just do a little bit of scene setting to tell us a little bit about the unaccompanied minors and just kind of what's going on and why there are so many people in custody right now.

Bethany: So to understand the situation, I want us to take a little bit of a step back first. And so to understand the ongoing influx of families and children migrating to the U S we have to take into consideration the push and pull factors of migration that is occurring in countries in Central America, Mexico and the US. Many persons who are migrating to the u s are fleeing from what we call intersectional discrimination. This results from various forms of violence, poverty, gender and economic inequality, and also the effects of natural disasters in the countries of origin. These push factors combined with pull factors such as family reunion reunification, better job and educational opportunities, higher levels of human security and the chance for a better standard of living. So we know that more than 120,000 young people ranging in age from 6 to 17, from El Salvador, Hondorus, and Guatemala arrived at the southern border of the US between 2014 and the end of 2016. Um, when the US government, usually Customs and Border Protection or CPB determines that an individual is an unaccompanied minor, the government must transfer custody and send that individual to a shelter within 72 hours. These shelters where they're placed are run by the office, the Office of Refugee Resettlement, ORR, which is housed under HHS. According to HHS, ORR is responsible for approximately 7,700 minors in its custody.

Jennie: Wow, that's a lot.

Bethany: Um, and we also know that there are hundreds of pregnant minors in ORR's care. Okay.

Jennie: So there's a lot of people in care. So what kind of abortion care and access to care were they given under the Obama administration?

Bethany: So we have to remember in all of this, that when one crosses a border, a person still carries with them their fundamental human rights. And deciding whether or not to become a parent is one of the most important. And we also have to remember that ORR has a legal duty to provide prompt access to safe medical care for those in its charge. ORR's obligation to provide this medical care unquestionably includes access to the full range of reproductive health care, including abortion. These obligations derive both from existing law and from a nationwide settlement agreement that is currently binding on the federal government. The government simply cannot evade its ethical obligations to this care. And they've done this in each case of of the Janes that we've seen, um. As we understand it, access to abortion care under the Obama administration was a completely different situation than it currently is and we think that most could access care. Um, Robert Carey, who was the director of, the director of ORR under Obama from 2015 until Trump took office that it was very unusual for a person in his position to have personally approached a minor in custody. Um, cases where federal funding was involved, such as perhaps in case of rape, of course could have a closer look and, and be an issue, a situation for discussion. Right. Um, but in any other case, this would have been entirely inappropriate. Um, Carey said that he was involved in policy decisions, but would never have been involved in individual cases like we've seen in the case of, of each Jane. Um, under past administrations, Carrey said, both Republican and Democrats, the agency simply did not interfere with the right for a minor in their care to obtain abortion. Um, however, I also want to point out that there, the system at that point also was not perfect. And we did see that there were, um, folks in care where, uh, with, uh, religiously affiliated, federally funded, uh, shelters, and they were being denied care, in fact, and in fact, so much so that the ACLU brought a lawsuit. Um, and that is still pending litigation. So while the system was not perfect under the Obama administration by any means, there because of certain, um, religiously affiliated centers, you know, minors were being denied care, just like in the case of the Janes. But this was, you know, not the vast majority, not even close.

Jennie: So obviously a lot of things have changed since Trump took office. What has happened, uh, with ORR and, um, right now with undocumented minors since Trump took office?

Bethany: Yeah. So in early March of 2017, the Trump administration issued a new interpretation of the George W. Bush era policy that gives ORR quote high end involvement in certain medical procedures such as surgeries and abortion. The Trump administration's interpretation explicitly prohibited federal funding shelters from quote taking any action that facilitates an abortion without direction and approval from the director of ORR. This is ludacris right?

Jennie: Like the director has to get involved?

Bethany: And who is the director? Okay. So Scott Lloyd Wright used to be an attorney for the Knights of Columbus, which is a Catholic organization. He once suggested in an op-ed that women who obtain contraception through federally funded, through through federal funding, should have to sign a pledge that they will not get an abortion.

Jennie: Huh that sounds, uh, sounds comforting.

Bethany: He also wrote that the Supreme Court's rulings on abortion infringe on a man's right to procreation. Interesting. Jennie: Seems like a great person. So far, I'm sold.

Bethany: Yeah. He also was in the George W. Bush administration in HHS where he authored a conscience rule that gave medical providers the right to refuse contraception, abortion and other medical care on moral grounds. Those were later rescinded under the Obama Administration. Um, so what we see is that Lloyd has rich abundant experience in the anti abortion movement and anti reproductive as well, but, but actually zero experience in working with refugee populations, which is really, unthinkable.

Jennie: Seems kind of important in the Office of Refugee Resettlement.

Bethany: Yeah, exactly. Um, so he's woefully underqualified and he has used his power to impose his religious beliefs onto immigrant children and youth in his custody. Um, he shamed, bullied, coerced young people to continue pregnancies against their will.

Jennie: Which brings us to the Jane Doe Cases or the Jane cases. Cause there's several of them.

Bethany: There's four. Yeah.

Jennie: Um, so let's start with the beginning and that would be Jane Doe.

Bethany: And before we discuss the Jane cases, I want to say that you know, the abuse of power that we've seen,, this invasion of privacy and what is really a coordinated federally funded campaign to shame, bully and deny care to these young women is simply unconscionable. Um, everyone should be able to access the health care they need including abortion. And no one should face political interference in their health care decisions, including when a person is detained. And NLIRH stands fully behind this belief and is why we are so outraged.

Bethany: Um, so in the case of Jane Doe, she is a 17 year old woman who came to the US on her own from Central America in early September, 2017. She arrived, she arrived to a government funded shelter in Texas under ORR custody. Upon her arrival to that shelter through the standard procedure medical assessment, Jane found out that she was 11 weeks pregnant and requested an abortion. Being that she was in Texas, though, she was subject to Texas abortion law. In Texas, a minor can obtain an abortion through a judicial bypass, an order from a judge that allows a minor to get an abortion without notification or consent of their parents. To get a judicial bypass, an individual must go before a judge and prove that they are mature and well informed enough to consent to their own abortion, or that it is not in their best interest to involve their parents. With the help of an organization based in Texas in Texas called Jane's Due Process, Jane went before a judge and argued for judicial bypass. On September 25th, 2017 she successfully got this bypass, meaning that the judge found her to be mature enough to consent to her own abortion and ordered she be able to get one. At this point, Jane secured her own funding and her court appointed guardian and attorneys ed litum were able and willing to transport her to the clinic. Despite Jane overcoming all of the obstacles and hurdles placed in her way by Texas law to access her abortion, including this judicial bypass mandatory counseling. Um, ORR blocked her from leaving the facility to obtain the abortion care. They literally held her hostage. ORR did, however, transport Jane to a crisis pregnancy center, a fake women's health center where she was forced to undergo and view an invasive sonogram against her will, and it was conducted by nonmedical personnel. ORR has called Jane's abusive mother to inform her about Jane's pregnancy, essentially exposing her to to future harm, which is just unconscionable and unthinkable. Then in October of 2017 with the help of the ACLU, Jane filed a lawsuit against the Trump administration arguing that the government was violating her constitutional right to access abortion. The DC District Court ordered that Jane be allowed to leave for her abortion promptly and without delay. The court order even noted that if transportation required Jane to go through a border patrol checkpoint, that the government is restrained from interfering with her ability to access her abortion. That was very bold and proactive and incredible. The government appealed to the DC circuit where a majority of the circuit panel dissolved the administrative stay. Um, the DC Circuit majority directed the District Court to allow the government to secure a sponsor for Jane by October 31st and for Jane to be released to that sponsor. But this was entirely unrealistic as there is an intense vetting process for one to become a sponsor. The ACLU appealed for an en bank hearing. There were no oral arguments in the DC circuit ordered the case to go back to the district court where Jane was finally allowed to get her abortion. The government's delay forced her into the second trimester. That is around the 16th week of pregnancy. And thus when she finally received the abortion, it was a more complicated procedure.

Jennie: I mean, I think it's really worth putting out that the government, their intention was to kind of keep delaying it because Texas has a 20 week abortion ban. So you're seeing abortion restrictions kind of playing into this? You know, if they had pushed her even further, she went to been able to gain access.

Bethany: That's absolutely right. That's an important factor. They knew there was a 20 week. Yeah. And so she was at that point, she was right up against the clock right at to the, to the 20 week point and um, she had to litigate what is a constitutional right. And that's just unthinkable.

Jennie: Absolutely. Um, so she's unfortunately not the only one. Uh, there have been other Jane's who have had problems accessing, accessing abortion care. Um, so how about a little bit on Jane Poe?

Bethany: Jane Poe and Jane Roee. These, um, these two, their, their cases came out, uh, at the same time. This was in mid December of this past year in 2017. Um, so again, the ACLU filed another lawsuit on behalf of two undocumented teenagers, Jane Roe and Jane Poe. ORR was again blocking the two young women from receiving abortion care. ORR claimed that it was about to place Jane Roe, who was 10 weeks pregnant at the time with the sponsor. Jane Poe, who was 22 weeks pregnant and was pregnant due to a sexual assault was, was blocked. Um, Lloyd outlined why he decided that Poe should not have an abortion in an internal administration document. The document Lloyd writes that abortion involves quote violence that has the ultimate destruction of another human being as its goal. He further wrote, how could abortion be in their best interest, where other options are available and where the child might even survive outside the womb. At this stage of pregnancy here, there is no medical reason for abortion. It will not undo our race. The memory of the violence committed against her and it may further traumatize her. I conclude it is not in her interest.

Jennie: Okay. So having the abortion that she wants would traumatize her more than being forced to carry the pregnancy she doesn't want.

Bethany: Yeah, absolutely unthinkable overreach here. I mean, I think it's positively, you know, it's, I think it's unprecedented that this administration thinks that it can speak better and know better of what is in the best interest of a survivor than that person, um, themselves. Its again, it's, it's unconscionable. It's unlike anything I've ever seen. Um, and it's appalling, which is why we have to fight so hard to change this policy and get him removed.

Jennie: Absolutely. So what happened after that? So he wrote the order....

Bethany: So this case was again in the DC district court. Uh, the judge there ruled that the administration must let both women terminate their pregnancies. And here, the situation changed a little bit. Um, the, the Justice Department appealed to the ruling to both the DC circuit and the Supreme Court, but only in regards to Jane Roe., Um, so own, not to Jane Poe who was a survivor of assault. Um, at that point, Jane Poe could presumably access her abortion, um. Before either the DC circuit or the Supreme Court could make a decision, it came to light though that Jane Roe was actually 19 years old and was not a minor. So she was released to ICE custody where she was actually allowed to, to, to receive care. Yeah. So they did not challenge the case of Jane Poe, who was their survivor and who was 22 weeks pregnant and she was able to get care. But they did continue to challenge for, for Jane Roe.

Jennie: Until they found out she wasn't a minor. Um, and then there was one more. Jane, um, Jane Moe and I know that there's not as much known so far, but, um, do you want to talk a little bit about Jane Moe?

Bethany: Yup. So Jane Moe was, is, is the latest in the Jane cases. The ACLU filed in early January, 2018. Um, in late December of 2017, uh, this Jane had asked to go to a clinic to obtain an abortion using her own funds. Staff at the shelter where she was being detained, were willing to accompany her to the clinic. Again, ORR refused to allow her to leave and required her to go to a fake women's health center. Um, quote unquote crisis pregnancy centers, where again, she is having terrible care, biased counseling, being bullied into doing something she does not want. Exactly. Um, so she was blocked in this case for more than two weeks until eventually she was able to have a sponsor, uh, and receive care. But I do want to note that about this case. Um, a statement from HHS, um, from the administration for children and families said the Jane in this case, Jane Moe, who entered the country illegally has the option to voluntarily depart to her own home country or find a suitable sponsor. She chooses not to exercise those options. HHS therefore does not believe we are required to facilitate Jane Moe's abortion out of concern and responsibility for the mother's best interest. So I want to point out two things here. Again, it's this overarching theme of the best interest. Exactly. They know what's in your best interest and it's not the care that you are, that you are entitled to that its a constitutional right, that that is your care. You know,

Jennie: You're making your own informed decision about what you want.

Bethany: And abortion is legal in this country and, and that's it. You have access, you have, you should have access to that, to that right. Um, so one is that overreach that we keep seeing and all of these, but two the notion that she would have returned to a country, you know, voluntarily go back home where, where chances are abortion is illegal or unsafe is again to, to, to, to put yourself in one, harm's way for accessing care where it might not be safe, but two, you could be fleeing from any number of things, you know. So why did, if you came here for a reason, and we have to assume that there is one, you're essentially sending someone to what could be a violent situation are worse. And again, this overreach and the, the notion of going back to where you came from is just, it's, it's appalling. It's, it's a logical and it's cruel.

Jennie: Um, so I think the next thing that really came up out of ORR that was really shocking was seeing that they were advising, um, minors about abortion reversal. Do we want to talk a little bit about that latest outrage?

Bethany: Sure. So this is, this is one of the latest as we know. Um, and so we know that Scott Lloyd spoke with, with staffers, with his staffers about trying to reverse the abortion of a pregnant teen in their custody. Um, and this is according to a deposition that he underwent as part of the lawsuit between the Trump administration and the ACLU. So this, this came out in that, in that context. We know that abortion reversal is scientifically unproven, potentially harmful. Um, what is essentially almost experimentation on, on, you know, minors, on children who are in our governments care. Again, this is something that I've never seen before that is just so outrageous. So appallingly, so agregious. Um, you know, doctors would be, so many doctors have come out to say, I would never do this. This would be violating my oath and I could not ever push this forward as, as, as, as a medical procedure. You know, this is not science. This is nothing that is, that is based in science. And so that, you know that Scott Lloyd and, and even his predecessor who, you know, again, did try to force this on a, a minor earlier last year, earlier in December, 2017, um, is it's unthinkable that this is what the administration is doing now.

Jennie: Yeah it's horrible. Um, and now that we know about kind of all the horrible things that are happening and all of the Jane cases, um, I think it's really important to turn now to what can we do, how can we fight back?

Bethany: So there are things we can do there. Right now there is quite a bit of drum beat. There's a lot of energy around these cases. Um, even though it has been several months, uh, the first, you know, Jane Doe did come out in, in October, so we've been, we've been fighting for, for all the fall and winter, but we have to keep going because there really, there have been so many calls for his resignation, for his removal. Um, people are outraged at this type of overreach that he has exhibited and that the Trump administration is not only condoning, is encouraging. Um, and so some things that you can do are to sign our petition. Uh, so the National Latina Institute for Reproductive Health alongside with our partner All Above All, we have a great petition, um, about 20, uh, over 20 other organizations are pushing this, this petition, our coalition partners basically calling for Scott Lloyd's removal. But that's not it because we know that when he is removed it is likely they're going to put in someone just as bad. Exactly. It's not enough. And Scott Lloyd is, he's an easy target to hate. And it's, we can call for his removal until we are blue in the face and a lot of people would be happy, but we have to remember that it doesn't end with him and it's going to end when they change their policies and they start doing what is, what is what they have to do, what they're obliged to do by law. And that is to provide health care, and not to stand and interfere with abortion access for minors in their care and their custody. Um, and so you can sign that petition. Uh, we do have a website. It's a little long and wonky.

Jennie: Yeah. Well it, yeah, I'll have it in the show notes and on our take action page so that it can be easily found and we'll also make sure to share it on the rePROs Fight Back social so that, um, we can easily find the petition to make sure that you can all sign it.

Bethany: That would be really great. We're also going to be having an event to deliver the petitions, which are hopefully going to be hundreds of thousands of petitions. Um, and that will be happening soon. More information will be on the website.

Jennie: We'll make sure to let everybody know. So if you're in the DC area or can come to the DC area so you can show up for the delivery of the petitions. Um, and yeah, we'll make sure to put that up. Um, when we get the more information and take notes and show show notes and uh, again on our, all of our social media so that everybody can participate if they're available. We'll be there. Yep.

Bethany: And I would just encourage folks as we said to continue to be loud. Um, the pro choice caucus co-chairs Representative DeGette and Slatter have called one, for hearings of Lloyd and other folks who are, who are working for him to get more information, uh, about just the egregious outrageous care, which isn't even care that the, that's happening in ORR. Um, but they've also called for Azar to remove him. Um, and they're using the Hashtag #LloydMustGo. Again, you can upload this on social media. We have members of Congress who are calling for his removal. We have many organizations including NARAL, Planned Parenthood, ourselves, lots of others. And we are all going to be, um, hand delivering these petitions. More information to come on that really hoping that this, that this continues to, to engage folks and to outrage people about, about what is, what is going on here. Um, I do think it can happen. I am hopeful. I think, I hope that there won't be another Jane and we will stop hearing these horror stories. But until that happens, we have to keep diligent and even though it's exhausting and every month after month we're hearing about something new every single month. And even though it's, it's impossible, sometimes we have to just keep on, keep on fighting and knowing that, that we have to stand up for, for, for all. Um, for all immigrant young people in, in ORRs care now more than ever. And until he's removed and until the policy changes, um, we won't stop.

Jennie: We just need to make sure to be keeping an eye on it and we'll make sure to keep all of our listeners informed as new things come up, um, and have great actions that we can now take to help make sure that Scott Lloyd goes and that policy changes. Thank you so much Bethany, for being here. It was a great slash infuriating talk to hear about all of the things going on. Um, but an important talk.

Bethany: Yes, definitely. Thank you so much for having me. Jennie: For more information, including show notes from this episode and previous episodes, please visit our website reprosfightback.com. You can also find us on Facebook and Twitter at rePROs Fight Back. If you'd like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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