The Biden administration is working on ways to protect the abortion rights of pregnant migrant minors who are in government custody following the Supreme Court’s ruling overturning Roe v. Wade last month, according to a source familiar with the discussions.
The Supreme Court’s decision to eliminate a constitutional right to abortion has placed added pressure on the administration to protect abortion rights, including for those in government custody. Federal agencies have been caught in the crosshairs as they try to navigate states that ban or will ban abortion.
The Department of Health and Human Services, for example, is charged with the care of migrant children who arrive in the United States without a parent or guardian until they’re released to a sponsor, like a relative, in the country. Some of those minors can be pregnant when they come into custody, making the shifting legal landscape difficult for shelter providers to navigate.
“The Dobbs ruling has created an untenable and dangerous situation for pregnant girls in the custody of the Office of Refugee Resettlement, many of whom have fled from extreme violence and abuse,” said Neha Desai, senior director of immigration at the National Center for Youth Law.
“It is critical that this administration take a stand to protect the basic health of these girls by issuing clear guidance ensuring access to abortion services for girls, regardless of what state they happen to be placed in,” she added.
As of July 18, there were 11,483 children in HHS custody, according to government data. It’s unclear how many pregnant girls are currently in custody, or how many have sought abortions.
Minors are given an initial medical exam, including a pregnancy test for girls. If pregnant, the Office of Refugee Resettlement, an agency within HHS, usually places girls in licensed shelters that can provide needed services.
ORR has previously released guidance specific to reproductive health care services, including abortion. In 2020, the agency issued a policy memo for shelters caring for unaccompanied migrant children as a result of litigation that detailed access to pregnancy related medical services and options.
And last year, in response to a Texas abortion law outlawing the procedure after six weeks – before many know they are pregnant – ORR followed up with guidance to care providers in Texas and provided instruction on transferring children who are discovered to be pregnant after placement to a state that allows abortion if need be.
The recent Supreme Court decision may broaden that as more states crack down on abortion.
“My understanding is that the agency is working on guidance which builds from both the 2020 policy memo resulting from the Garza litigation, as well as the field guidance issued after Texas restricted access to abortion in 2021,” Desai told CNN, citing the memo and guidance that has already been released.
CNN reached out to HHS for comment.
Immigration and Customs Enforcement also recently reminded its workforce of its policies, as it relates to pregnant detainees, though the agency generally doesn’t arrest or detain pregnant women.
In a statement, an ICE spokesperson said the agency “will continue to comply with federal law and abide by current detention standards which ensure that pregnant detainees in custody have access to pregnancy services, including routine and/or specialized prenatal care, pregnancy testing, comprehensive counseling and assistance, postpartum follow up, lactation services and abortion services.”