Abstract: In June 2022, the United States Supreme Court released the historic decision Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution does not protect an individual’s right to an abortion. Dobbs overturned many cases, including J.D. v. Azar, which previously protected abortion rights for unaccompanied migrant youth in federal detention facilities. Post-Dobbs, the Office of Refugee Resettlement (ORR)—the agency responsible for caring for detained immigrant children—still protects abortion rights as part of its own internal policy. Without judicial precedent, however, this policy lacks the stability to truly protect the rights of the children in its care.
This Comment discusses the impact of Dobbs on the rights of unaccompanied immigrant children (UCs) detained in immigration custody by ORR. Now that detained UCs’ right to abortion is only protected by agency policy, it can be changed by ORR without going through notice and comment rulemaking. This Comment explains the historical context of the rights of migrant children and the right to an abortion. It advances the argument that states that want to protect abortion for detained immigrant youth must incorporate those rights in child welfare laws.
