Abstract

Excerpted From: Ciera Phung-Marion, From Precedent to Policy: The Effects of Dobbs on Detained Immigrant Youth, 99 Washington Law Review 277 (March, 2024) (401 Footnotes) (Full Document)

In 2022, 152,057 unaccompanied immigrant children crossed the United States' southwest border seeking immigration relief. An unaccompanied migrant child (referred to as a “UC,” “unaccompanied immigrant child,” or “migrant youth”) is a person under the age of eighteen who enters the United States without immigration status, a parent, or a guardian. While the reasons UCs leave their homelands vastly differ, many face similar hardships once they cross the border. UCs are especially vulnerable to violence and exploitation because they have no adult present to protect them or advocate for their best interests.

Without adult protection, UCs are especially vulnerable to abuse by family members, strangers, and gang members. Many UCs experience such violence while traveling to the United States. Many are dependent on smugglers to guide them thousands of miles from Central America through Mexico to the United States. In addition to the physical difficulty of this journey, unaccompanied migrant children must avoid being attacked by gangs, corrupt officials, and even their own guides.

When U.S. Customs and Border Patrol (CBP) apprehends a UC at the border, they are transferred to a youth immigration detention facility within seventy-two hours. While the distinction may seem small, youth and adults experience immigrant detention very differently. Adults are detained by Immigration and Customs Enforcement (ICE), a federal agency under the U.S. Department of Homeland Security (DHS). Youth, however, are held in the custody of the Office of Refugee Resettlement (ORR), an agency under the U.S. Department of Health and Human Services (HHS). Once initially processed at the border, adults and minors are separated into different detention facilities, governed by different agencies with completely different laws and policies. This Comment specifically focuses on the treatment of youth in immigrant detention.

Although there is ample data about pregnant adults who arrive at the U.S. border, data is lacking for pregnant youth. In 2014, the Government Accountability Office reported a “significant” increase in pregnant youth in immigrant detention. Girls are especially vulnerable to sexual violence in their home countries, on their journeys to the United States, and while in U.S. immigrant detention. In their home countries, girls reported experiencing sexual assault, extortion, trafficking, and domestic violence. While crossing the border, it is estimated that sixty to eighty percent of women and girls are sexually assaulted. Rape and sexual assault have become so common while traveling to the United States that some smugglers force women and girls to take birth control to prevent pregnancy. Even in immigrant detention, youth are still not safe from sexual assault. From 2014 to 2018, children in ORR custody reported more than four thousand allegations of sexual abuse.

Part of the reason why abortion rights are so important for detained immigrant youth is because of these high rates of sexual assault. The majority of pregnancies resulting from sexual assault are unwanted. Medical research has shown that forcing someone to carry an unwanted pregnancy to term, regardless of whether it is the result of sexual assault or rape, increases their risk for serious medical complications. These risks are exacerbated by the detention conditions in ORR facilities. UCs have reported being underfed or served inedible food, unable to access medical care, drugged, assaulted, and kept inside twenty-three hours a day. Detention conditions “change children's brains and bodies, including disrupting learning, behavior, immunity, growth, hormonal systems, immune systems, and even the DNA.” Detained immigrant children already lack basic freedoms and much of their bodily autonomy; they should not be forced to carry an unwanted pregnancy to term as well.

Although abortion was considered a constitutional right between 1973 and 2022, in June 2017, a class of UCs in immigrant detention filed an action seeking an injunction against the federal government for ORR policies and practices that violated their rights to abortions. One of the named plaintiffs, Jane Doe immigrated to the United States at the age of seventeen. After she was taken into ORR detention, she found out she was nine weeks pregnant. Jane immediately knew she wanted an abortion. To do so, Jane found a doctor, secured her own funding to pay for the abortion, and received authorization from a judge to get an abortion without her parents' consent. After Jane took all these steps, ORR still refused to let her leave the facility for her appointments. Instead, detention officials forced Jane to visit a religious anti-abortion crisis center. Jane challenged the constitutionality of ORR's actions and its ability to interfere with her right to get an abortion. In J.D. v. Azar, the D.C. Circuit ruled in her favor, holding that ORR could not interfere with Jane's constitutional right to get an abortion. Following the court's ruling, ORR changed its internal policy to be consistent with the holding.

When the Supreme Court overturned the right to abortion in Dobbs v. Jackson Women's Health Organization, it also necessarily overturned J.D. v. Azar. Although there was international outcry about the overturning of this decision affecting women, little appears to have been said about it overturning J.D. v. Azar and its effect on detained immigrant youth. With this silence, UCs have been excluded from many of the proposed state remedies in the wake of Dobbs. State laws and policies protecting abortions do not cover immigrants detained in federal custody.

Since Dobbs, ORR is still not allowed to interfere with a UC's ability to get an abortion. Even though J.D. v. Azar was overturned, President Biden reaffirmed that ORR's internal policy remains. However, without the support of court precedent, this policy can be changed at the whim of the agency or the election of a new president. States must find ways to protect abortion rights for all persons, including detained immigrant youth.

It is important to emphasize that protecting abortion rights for UCs is only a part of what it means to achieve reproductive justice. The detention of immigrant children itself violates their right to bodily autonomy. The rampant sexual assault that takes place in detention centers violates their bodily autonomy. The disregard of individual children's medical needs violates their bodily autonomy. In addition to advocating for the inclusion of detained immigrant youth into discussions on reproductive rights, this Comment is also a plea for the abolition of our harmful immigration systems that do nothing but cause more harm.

Part I of this Comment provides a background on the rights of both immigrants and children under the Constitution, differentiating them from an adult United States citizen. Part II describes the treatment of children in immigrant detention. Part III details the history of abortion rights in the United States and how detained immigrants exercised these rights until the Dobbs decision. Part IV argues that the current efforts by some states to protect abortion rights post-Dobbs do not effectively ensure that those rights are available to minors in immigrant detention, and proposes that states incorporate abortion protections into child welfare laws.

[. . .]

In Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade, holding that individuals do not have a constitutional right to an abortion. The decision had widespread impacts on pregnant or birthing people across the world. These impacts extended specifically to unaccompanied immigrant children who are detained by the ORR. Post-Dobbs, ORR's internal policy still protects abortion rights for UCs. However, without the precedent of Roe, this policy is at risk of going away.

UCs are a vulnerable population, and it is vital that individual states take actions to expand abortion protections to include them. Current attempts by states to include abortion rights in their state constitutions and state laws are not enough to protect detained UCs. However, if states were to incorporate abortion protections into child welfare law, ORR detention facilities would be forced comply with state child welfare laws under the Flores Agreement and federal regulation. Using child welfare law to protect abortion for UCs is not a permanent solution, and in the larger scheme of immigration and reproductive justice its effects may seem trivial. However, for the individual children who could potentially benefit from this use of the law, the impacts are life changing.

J.D. Candidate, University of Washington School of Law, Class of 2024.