The Biden administration issues a policy protecting access to abortion for unaccompanied teenage immigrants

Chelsea Tejada, she/her/her, Legal Fellow, ACLU Reproductive Freedom Project

Amidst the chaos and devastation caused by the US Supreme Court gut of the constitutional right to abortion, the Biden administration has increased efforts to protect access to abortion for pregnant unaccompanied young immigrants. On November 10, 2022, the Office of Refugee Resettlement (ORR) announced new guide to ensure that unaccompanied minor immigrants have access to abortions while awaiting family reunification in the United States in ORR shelters. The policy requires ORR to prioritize the placement of pregnant immigrant youth in shelters located in states that do not prohibit abortion. However, if a minor is placed in a facility in a state with restrictive abortion laws and requests an abortion, the policy requires timely transfer to another state to access that care.

This new policy is an essential step in protecting the health and well-being of this marginalized population. ORR is the government agency responsible for serving unaccompanied immigrant children who are arrested after crossing the border in an attempt to find their families in the United States and seek a safer, better life. Unfortunately, many of these young people experience sexual assault in their countries of origin or on the perilous journey to the United States, and some may be placed in ORR custody while pregnant. This policy will help ensure that any pregnant minor has fast and confidential access to abortion treatment if she believes it is the right decision for her and her future. Pregnant migrant minors deserve to have their physical autonomy respected, even while in state custody.

Activists carry signs that say

Activists rallied to protest federal interference in the ability of pregnant immigrant teens to have abortions.

AP Photo/J. Scott Applewhite, file

This guidance is critical in the United States’ new patchwork abortion landscape and builds on previous policies that have been secured for years litigation Ensuring access to abortion for minors in ORR detention. In 2017, the American Civil Liberties Union, on behalf of pregnant immigrant minors seeking abortions, sued the Trump administration in court for banning abortion for unaccompanied minors by barring them from leaving ORR shelters to receive abortion-related care. That lawsuit secured these minors’ access to abortion and ended when the Trump administration formally rescinded that draconian policy through a settlement agreement that prevented ORR staff and shelters from blocking or interfering with unaccompanied pregnant minors’ access to abortion. The new 2022 policy builds on our Settlement Agreement and clarifies that a minor in ORR care must have access to the full spectrum of reproductive healthcare just as they would have access to any other medical procedure.

The ORR’s decision to place pregnant unaccompanied young immigrants in states where they have access to the full range of medical care they may need, including abortion, is critical. Abortion bans not only prohibit access to the abortion itself, but may also affect miscarriage treatment or emergency care that a pregnant minor may need. As the ACLU fights for a future in which unaccompanied immigrant youth are not jailed by government, we applaud ORR for strengthening its abortion access policy and we urge this and future governments to vigorously enforce that policy.

The Biden administration also needs to strengthen its reproductive health policies for others in state custody, including the Bureau of Prisons, Immigration and Customs Enforcement, and Customs and Border Protection. Abortion is basic health care, and access to it shouldn’t depend on your immigration status, whether you’re incarcerated, or what state you’re in. As we fight to restore access to abortion in states across the country, we’re taking a moment to celebrate these new guidelines. All people should have access to reproductive health care, including abortion, without barriers, shame or stigma.

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