Examining an Undocumented Individual's Right to Abortion


In early September 2017 , an undocumented teenage girl, referenced as Jane Doe, crossed into the United States. After being detained and sent to live in a private facility sponsored by the Office of Refugee Resettlement (ORR), she learned news that would change her life and also spark an intense legal battle: she was pregnant.


When Jane Doe was detained and learned that she was nine week pregnant, and soon requested for transportation to an abortion facility. In Texas, the state where Jane Doe was detained, an abortion is legal until the 21st week of pregnancy. The controversy surrounding Jane Doe was not that she was seeking an abortion that didn’t comply with Texas State law – it was whether as an undocumented minor had a constitutional right to an abortion. One pressing questions remains at large: if the right to an abortion was established as an inherent right under Roe v. Wade, why does Jane Doe’s status as an undocumented immigrant infringe in her right to access an abortion.


Cases such as Roe v. Wade and Casey v. Planned Parenthood of Southeastern Pennsylvania established, writ large, that everyone woman has the right to obtain an abortion before the third trimester. The same cases recognized the power of state governments to reasonably limit that right through laws including parental consent and mandatory 48 hour waiting periods. Jane Doe received permission from a judge to obtain the abortion since her parents were out of the country. She also underwent counseling that Texas law requires 24 hours before the abortion procedure takes place.


The question of whether or not undocumented people garner the same constitutional rights as native-born or naturalized citizens is not new. In Wong Wing v. United States, Wong Wing was sentenced to hard labor after being convicted of illegal entry into the United States. The Supreme Court found the sentence of Wong Wing to be unconstitutional because it violated the directly violated clauses of the fifth and sixth amendment that ensure the right to a trial. The justices went on to conclude that in regard to the fifth and sixth amendments, “all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not….be deprived of life, liberty, or property without due process of law.” Roe v. Wade establishes the right an abortion under the privacy amendment of the due process clause. In the opinion, Justice Blackmun writes “the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. [1]“ It must be acknowledged abortion doctrine has changed since Roe v. Wade, but one remaining aspect holds--a woman’s right to an abortion is inarguably protected under precedent.


In spite of the decision from 1973 decision, the state denied Jane Doe’s request for transportation to and from the abortion clinic. Circuit Judge Miller writes in the opinion that the dissent expected Jane Doe to “bear the burden of extracting herself from custody if she wants to exercise her right to an abortion[2].” Whole Woman’s Health v. Hellerstadt established that the government cannot place undue burdens on a woman seeking an abortion. Yet, the newfound policies of the ORR can be argued as a direct conflict to what was established Whole Woman’s Health v. Hellerstad. In a similar case, an undocumented teenage girl was given permission by a judge to seek an abortion, but after she took the first dose of her medication, ORR officials took her to the emergency room to get it reversed. According to the ACLU, the director of the ORR, Scott Lloyd meet personally with another woman to try and convince her not to get her abortion.


In the dissent of Jane Doe’s case, Rochelle Garza v. Eric D. Hagan, Judge Henderson argues that, while Jane Doe has elected to have an abortion, it is not a necessity. Therefore, in conjunction with her status as an undocumented immigrant, the right to an abortion should not apply to her. Not only does Judge Henderson cite Zavidayas v. Davis in claiming that Jane Doe “has not effected entry into the United States[3].” Her argument has precedent in Shaughnessy v. United States which holds that undocumented immigrants who are on the “threshold of entry[4]” are not entitled to the same rights as undocumented immigrants who have been in the United States for a substantial period of time.


The dissent implies that by allowing Jane Doe, an undocumented minor, her constitutional right to an abortion, “pregnant alien minors around the world seeking elective abortions will be on notice that they should make the trip.”[5] Jane Doe, a 17 year old girl, entered the United States undocumented, alone, and pregnant. By ruling on her case operating under the belief that if she was allowed and abortion, the floodgates would open and many more women would follow suit is improbable at best. The dissenting judges failed to isolate the law in the situation and rule from there. Yet, this case is one to be celebrated. Jane Doe stood up and defended her own access to the rights and privileges promised to her as an individual living under the laws of the United States. She succeeded, in this instance. The concern remains, however, as to why it was necessary.




[1] Roe v. Wade


[2] Rochelle Garza v. Eric D. Hargan


[3] Zavidayas v. Davis


[4] Shaughnessy v. United States


[5] Rochelle Garza v. Eric D. Hagan


Foley, Elise. "Undocumented Minors Who Suffered Rape May Be Denied Abortions In Government Custody." The Huffington Post. October 17, 2017. Accessed November 9, 2017. https://www.huffingtonpost.com/entry/unaccompanied-minors-abortion_us_59e6714ce4b00905bdad4f3b.

McCammon, Sarah. "Case Considers Unaccompanied Minor's Right To Have An Abortion." NPR. October 20, 2017. Accessed November 9, 2017. https://www.npr.org/2017/10/20/559113239/legal-case-weighs-whether-mexican-girl-in-u-s-illegally-should-have-access-to-ab.

North, Anna. "A detained 17-year-old immigrant wants an abortion." Vox. October 19, 2017. https://www.vox.com/identities/2017/10/19/16500166/texas-abortion-teenager-undocumented-immigration.

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D., APPELLE v. ERIC D. HARGAN, ACTING SECRETARY, HEALTH AND HUMAN SERVICES, ET AL., APPELLANTS, 1 (United States Court of Appeals October 24, 2017 ).

Roe v. Wade, 410 U.S. 113 (1973)

Shaughnessy v. United States 345 U.S. 206 (1953)

Wong Wing v. United States, 163 U.S. 228 (1896)

Zadvydas v. Davis, 533 U.S. 678 (2001)