Biden administration moves to safeguard abortion access for migrant girls in U.S. custody

Biden administration moves to safeguard abortion access for migrant girls in U.S. custody

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The Biden administration is directing shelter officials across the U.S. to ensure that pregnant migrant girls in federal custody have access to abortion services following the Supreme Court’s decision to eliminate the constitutional right to the procedure, according to government guidance issued Thursday.

The Office of Refugee Resettlement, the Department of Health and Human Services (HHS) agency tasked with housing unaccompanied children who lack legal status, issued guidance instructing officials to avoid placing migrant children who are pregnant or who suffered sexual assault in shelters in Republican-led states that restrict abortion access.

Instead, those unaccompanied children should be placed in “states without abortion bans and with broad access to reproductive health care for minors,” the guidance said.

If pregnant migrant girls housed in states with abortion bans request the procedure, those minors should be transferred to shelters in states where abortion remains legal, the guidance said. Pregnant girls in HHS care may voluntarily decide to stay in a state that bans abortion, but they must be informed of their rights and the abortion ­restrictions they would face.

“This Field Guidance confirms that ORR staff and care providers must not prevent [unaccompanied children] from accessing legal abortion-related services and that ORR staff and care providers must make all reasonable efforts to facilitate access to these services if requested by the [unaccompanied child],” the guidance said.

The refugee agency houses unaccompanied migrant children, most of whom enter the country unlawfully along the southern border, until they turn 18 or can be placed with a sponsor, typically a parent or another relative living in the U.S. As of Nov. 9, the agency was housing fewer than 10,000 unaccompanied children, government data show.

It’s unclear how many pregnant migrant girls are currently in federal custody, but an administration official, who requested anonymity to discuss internal data, told CBS News the population is relatively small. 

Thirty-four percent of the 122,731 migrant children HHS received in fiscal year 2021 were girls, federal data show. Following the Supreme Court ruling, HHS has already transferred some pregnant girls from states that have banned abortions, the administration official said.

In a photo taken on March 27, 2021 unaccompanied children, immigrants who arrived illegally across the Rio Grande river from Mexico, stand at a makeshift processing checkpoint before being detained at a holding facility by border patrol agents in the border city of Roma.

ED JONES/AFP via Getty Images

By overturning the Roe v. Wade decision that had guaranteed a woman’s right to an abortion for nearly 50 years, the Supreme Court’s conservative ­­majority cleared the way for Republican officials in more than two dozen states to enact restrictions or total bans on the procedure.

The ruling has galvanized progressive activists, Democratic politicians and the Biden administration, which has invoked its executive authority to protect access to abortion in certain circumstances, including medical emergencies. 

Neha Desai, a lawyer at National Center for Youth Law who represents migrant children in a landmark court case, said the HHS guidance will ensure girls in federal care “will not endure the additional trauma of having their access to abortion denied because they happen to be placed in a state that is hostile towards their rights.”

“These youth, like everyone, should have access to abortion and reproductive healthcare,” Desai said. “I have spoken to hundreds of youth in custody who have survived unimaginable trauma, including girls that were gang raped, and girls that, for a variety of reasons, decided it was best for them not to carry pregnancies to term.”

The latest HHS guidance expands rules issued last October in response to a Texas law that outlawed most abortions after six weeks of pregnancy. The October 2021 guidance instructed officials to generally refrain from placing pregnant migrant girls in Texas shelters, and to transfer those already in the state to other sites.

Access to abortion services for migrant children in U.S. custody became a political flashpoint during the Trump administration, which issued a directive in March 2017 prohibiting shelter officials from facilitating a child’s abortion without an approval from the director of the Office of Refugee Resettlement.

Scott Lloyd, who led the refugee agency from March 2017 to November 2018, denied several abortion requests from migrant girls in U.S. custody, citing the Trump policy, court documents show. He said shelter officials could only offer pregnant girls “pregnancy services and life-affirming options counseling.”

One of the abortion requests Lloyd rejected was from a 17-year-old migrant girl who requested an abortion several times while in U.S. care after being raped in her home country. In his denial, Lloyd concluded an abortion was not in her “best interest,” saying it would “not undo or erase the memory of the violence committed against her.”

“We cannot be a place of refuge while we are at the same time a place of violence,” Lloyd wrote in a December 2017 memo. “We have to choose, and we ought to choose to protect life rather than to destroy it.”

The American Civil Liberties Union challenged Lloyd’s denials and the Trump administration’s abortion restrictions, which federal courts found violated the U.S. Constitution. The legal defeats forced HHS to issue guidance in September 2020 that barred officials from interfering with migrant children’s abortion requests.

Brigitte Amiri, an ACLU attorney who challenged the Trump abortion restrictions for migrant children, expressed concern that a future Republican administration could limit or ban abortions for unaccompanied minors in federal care since her group’s lawsuit rested on the now-overturned Roe v. Wade ruling.

“This really is a fragile right that is going to hang in the balance in the next election,” Amiri said.

Amiri said abortion access is particularly critical for migrant children since some of them experience sexual assault on their journey to the U.S. or in their home countries, some of which outlaw abortion.

“This is a population that has suffered a lot, and they need to have the ability to make decisions about their pregnancy when they are here in the United States,” she said.

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