On October 18, 2017, a federal judge ordered that United States officials allow a 17-year-old non-citizen to get an abortion. In early September, a young girl from Central America was detained while trying to cross the border into the United States from Mexico. The girl was then brought to a shelter for unaccompanied minors in South Texas where she eventually learned she was pregnant. This young girl, referred to as Jane Doe, was adamant about wanting to have an abortion.

Abortion laws in Texas require that a minor, someone younger than 18, must have parental consent and be notified of the procedure. Since Doe was an unaccompanied minor, she needed to go to court to get a judge’s permission to go through with the abortion. With the help of Due Process, a nonprofit legal organization that provides free representation for minors in Texas, Doe received the permission necessary and was to undergo the abortion on September 28, 2017, near the end of her first trimester.

The Trump administration stepped in and ordered that the abortion be halted and Doe carry her pregnancy to term. According to New York Times, Doe was in the estimated 60% population of female migrants who have been raped. The shelter received orders, despite the judicial authorization, to not allow the abortion. On September 23, 2017, Doe was taken to an anti-abortion crisis pregnancy center where she was forced to view an ultrasound. Additionally, Doe’s mother, who was allegedly physically abusive, was contacted in her home country and informed about the pregnancy.

Doe was then subjugated to one-on-one supervision and was barred from all physical activity. Finally, on October 18, 2017, a federal judge ordered that the administration stop blocking Doe’s abortion. The new abortion procedure was scheduled for October 20, 2017, and would have been a second-trimester procedure. However, the Trump administration again appealed and new arguments were heard on October 20, 2017.

On October 24, the federal appeals court in Washington sided with Doe, sending the matter to the lower court, which immediately ordered the Trump administration to allow Doe to obtain an abortion “promptly and without delay.” The day after the court’s ruling, Doe underwent the abortion procedure.

Do Non-Citizens Have a Constitutional Right to Abortion?

There are many supporters of the Trump administration who argue that non-citizens do not have constitutional rights to an abortion. Texas, Arkansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, and South Carolina filed a brief where they state their worries about allowing this abortion to happen. They claim that if the abortion were to be allowed, “there will be no meaningful limit on the constitutional rights an unlawfully-present alien can invoke simply by trying to enter this country.” Other supporters argue that allowing the abortion would create a precedent that allows non-citizens to enter the United States’ borders in order to receive taxpayer-funded abortions.

Undocumented immigrants have constitutional rights, however, they may not have all the rights that citizens have. For example, non-citizens have the rights to freedom of speech and religion, and if they are arrested, they have a right to the Miranda warnings. Non-citizens also enjoy the protections of the Fifth and Fourteenth Amendments which essentially protect everyone from deprivation of life, liberty or property without due process of the law. The Supreme Court also ruled that children immigrants could not be prohibited from attending schools, as all children are required to attend.

However, other constitutional rights do not apply to non-citizens. Non-citizens do not have the right to vote in state or national elections. In removal proceedings, immigrants will get almost no due process. Furthermore, although in criminal proceedings defendants will have a Sixth Amendment right to a government-appointed attorney, this does not extend to immigration court as those violations are civil and not criminal.

Although non-citizens have constitutional protections, the right to an abortion has not yet been deemed an essential right for all persons. If you are a non-citizen and are concerned about your rights, contact the experienced New York immigration lawyers at Bretz & Coven, LLP. We have two offices located in New York, New York and Metro Park, New Jersey. For more information or to schedule a consultation, call (212) 267-2555 or fill out our contact form.