Biden Administration Issues Policy Protecting Access to Abortion for Unaccompanied Immigrant Youth

We applaud this step, and urge the administration to ensure access to reproductive health care for all people in government custody.

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

Amidst the chaos and devastation caused by the U.S. Supreme Court’s gutting of the constitutional right to abortion, the Biden administration has stepped up its efforts to protect abortion access for pregnant unaccompanied immigrant youth. On November 10, 2022, the Office of Refugee Resettlement (ORR) announced new guidance to ensure that unaccompanied immigrant minors have access to abortion while in ORR shelters awaiting reunification with family in the United States. The policy requires ORR to prioritize placing pregnant immigrant youth in shelters in states where abortion has not been banned, but if a minor is placed in a shelter in a state with restrictive abortion laws and requests an abortion, the policy requires timely transfer to another state to access this care.

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This new policy is an essential step in protecting the health and well-being of this marginalized population. ORR is the government authority in charge of caring for unaccompanied immigrant minors who are detained after crossing the border to find their families in the U.S. and to 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 U.S., and some may enter ORR custody pregnant. This policy will help ensure that any minor who is pregnant is able to quickly and confidentially access abortion care, if she believes that is the right decision for herself and her future. Pregnant immigrant minors deserve to have their bodily autonomy respected, including while in government custody.

This guidance is crucial in the United States’ new patchwork abortion landscape, and builds upon a prior policy secured in a years-long legal battle to ensure access to abortion for minors in ORR custody. In 2017, the American Civil Liberties Union, on behalf of pregnant immigrant minors seeking abortion, took the Trump administration to court for banning abortion for unaccompanied minors by prohibiting them from leaving ORR shelters to obtain abortion-related care. This lawsuit secured the ability of these minors to access abortion, and concluded when the Trump administration officially abandoned that draconian policy as a result of 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 makes clear that a minor in ORR’s care must be able to access the full spectrum of reproductive health care, just as they would be able to access any other medical procedure.

Activists carrying signs that read "Justicia por Jane Doe, Yo Soy Jane Doe, Justice for Immigrant Women and My Body My Rights," gathered to protest the government interfering with the ability of pregnant immigrant teens to obtain abortions.

Activists gathered to protest the interference of federal authorities with the ability of pregnant immigrant teens to obtain abortions.

AP Photo/J. Scott Applewhite, File

ORR’s decision to place pregnant unaccompanied immigrant youth in states where they can access the full range of health care they may need, including abortion, is critically important. Abortion bans not only prohibit access to abortion itself, but also may affect miscarriage care or emergency care that a pregnant minor may need. While the ACLU fights for a future where unaccompanied immigrant youth are not detained by the government, we applaud ORR for strengthening its abortion access policy, and we call on this and future administrations to vigorously enforce the policy.

The Biden administration must also strengthen its reproductive health care policies for other people in government custody, including the Bureau of Prisons, Immigration and Customs Enforcement, and Customs and Border Protection. Abortion is essential health care, and accessing it should not depend on your immigration status, whether you’re incarcerated, or which state you are in. As we battle to restore abortion access in states across the country, we take a moment to celebrate this new policy. All people should be able to access reproductive health care, including abortion, without obstacles, shame, or stigma.