Office of Refugee Resettlement Director Scott Lloyd said at one point: “The criteria is the totality of circumstances, and there’s no formal written criteria." | Getty Trump's abortion policy sheds light on ad hoc decision-making

AUSTIN, Texas — The Trump administration’s policy of halting abortions among undocumented minors was established by email through an ad hoc process without formal legal vetting, according to new documents released Tuesday by the American Civil Liberties Union.

The ACLU, which is suing the administration over the policy, made public the December depositions of the director and the deputy director of the Office of Refugee Resettlement, the HHS office responsible for the care of undocumented minors who enter the country without their parents.


Though ORR is a relatively obscure corner of the sprawling agency, the new documents shed light on the broader improvised nature of how the administration sets policy — and raise questions about whether decisions violated existing state law and federal policy, according to depositions and emails released by the ACLU and conversations with former administration staffers.

“Some of the policy is being directed through emails, memos or conversation rather than what’s considered to be the normal policy process,” said Bob Carey, former ORR director during the Obama administration. “It’s not ORR’s determination to make, as to how the laws of the United States apply.”

HHS said it does not comment on pending litigation, but in the past HHS officials said that ORR policy was "designed to protect children and their babies who have illegally crossed the border."

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The ORR’s policy of requiring the director’s approval before an unaccompanied minor can have an abortion was first laid out in a March 4, 2017, memo — a policy that was a sweeping departure from the George W. Bush and Obama administrations, which required the director’s signoff only when federal funds were requested to pay for the procedure. Under previous administrations, funds were granted when the minor was the victim of sexual abuse.

At the time, the new policy was made by “political appointees at HHS,” including Maggie Wynne, an HHS counselor, and Scott Lloyd, who was then on the HHS transition team, according to the deposition of Jonathan White, deputy director of ORR. Lloyd was previously an attorney with the Knights of Columbus, a Catholic charitable organization. Wynne worked at HHS in both the Bush and Obama administrations and was previously director of the House Pro-Life Caucus.

The policy was fleshed out a few weeks later, around the time that Lloyd became ORR director, in a March 24 email to department staffers regarding the specific case of a minor in an Arizona shelter who had requested an abortion.

Lloyd wrote that the staffers should instruct the shelter to take the girl to a specific crisis pregnancy center in Phoenix. If she still wanted an abortion, she would be required to get written parental consent. He also said she should be prohibited from meeting with an attorney regarding the abortion or to get a judicial bypass, which would enable her to obtain the abortion without parental consent.

“We’ll work on formalizing these procedures, but we’ll have to do it ad hoc for now,” Lloyd wrote.

In his December deposition, Lloyd said that the department had yet to formalize the procedures laid out in the email nine months earlier, and that decisions about abortions were still happening on “a case-by-case basis” with ORR staffers looking at the circumstances of the case and making a decision based on the “best interest” of the minor.

“The criteria is the totality of circumstances, and there’s no formal written criteria,” Lloyd said.

According to the depositions, Lloyd denied all seven requests for abortions that reached his desk between March and Dec. 19. He admitted that he believes undocumented minors don’t have a constitutional right to an abortion, even in the case of rape, and that he received a spreadsheet every week with details of all pregnant minors in ORR’s care.

Lloyd also said that he spoke with White House staff about the abortion policy, but not with the HHS secretary, which was Tom Price for most of that period. He said that he had not reviewed abortion policies of other agencies responsible for immigrants.

Under the Obama administration, ORR developed and publicly posted a policy guide so that shelters, immigration attorneys and others would know of changes, said Mark Greenberg, a senior fellow at the Migration Policy Institute and former head of the Administration of Children and Families, the HHS division that includes ORR.

All policies — regardless of whether they went through a formal rulemaking process or were posted in the policy guide — were always reviewed by legal counsel to be sure that they were complying with federal law, Greenberg said.

In the case of the ORR’s abortion policy, the new guidelines created confusion for shelters caught between concerns about violating state law and fears of losing their HHS contract to house unaccompanied minors.

In a March 2017 email exchange, the Young Center, which was an independent child advocate for unaccompanied minors in ORR custody in Arizona, raised legal concerns about ORR's requirement that shelters notify parents about an abortion request over the objections of the minor, arguing that the policy violated state and federal health privacy laws. The group also worried, in a particular case, that the minor’s father would retaliate against her mother in her home country if he learned about the abortion.

And months later, operators of an Arizona shelter run by Austin-based Southwest Key were still requesting repeated clarification from HHS about how to proceed in the case of a minor who had requested an abortion but didn't want to notify her parents, according to a September email exchange. Lloyd insisted that "program should notify regardless of the [minor's] wishes."

Since last fall, the ACLU has filed suits against the Trump administration on behalf of four pregnant teens who arrived in the U.S. without their parents for blocking their requests for abortions. In three cases, the girl was eventually able to obtain the abortion, and in the fourth the girl was immediately released to a sponsor.

The D.C. District Court has yet to rule on a separate class-action suit regarding ORR’s abortion policy. And the Supreme Court has not yet decided whether it will take up HHS' request to vacate the D.C. District Court’s decision regarding one of the pregnant teens and whether to sanction the ACLU’s lawyers for helping one of the minors obtain an abortion before the administration had a chance to appeal the District Court’s ruling to the Supreme Court.

CORRECTION: An earlier version of this report misstated the location of a shelter run by Austin-based Southwest Key. It is in Arizona. The version also incorrectly described the role of the Young Center. It was an independent child advocate for unaccompanied minors in ORR custody in Arizona.

