Revised HHS Guidance for Unaccompanied Children Needing Reproductive Healthcare

On November 10, 2022, the Department of Health and Human Services (“HHS”) revised Field Guidance #21 to prioritize medical reproductive health services and accommodations for pregnant unaccompanied children (“UC”). Field Guidance #21 sets forth the procedure to ensure UC’s access to medical reproductive health services, including abortion, and provides UC’s comprehensive information regarding access to such reproductive health services.

Field Guidance #21 is applicable to the Office of Refugee Resettlement (“ORR”) and all staff providing direct care to UC at all ORR-funded facilities, including Emergency Intake Sites and Influx Care Facilities.  More specifically, Field Guidance #21 makes it clear that the ORR federal staff and care providers may not prevent UC from accessing legal abortion-related services and must make “all reasonable efforts” to facilitate access to these services if requested by the UC. While pregnant, UC may choose to remain at ORR facilities, but they must first be informed of their rights to access medical reproductive health services.

Further, pursuant to Field Guidance #21, pregnant UC who have requested an abortion, the ORR must, to the “greatest extent possible,” transfer pregnant UC to an ORR program that has a state-license to care for pregnant UC and can appropriately support the UC’s health care needs. If, for example, the UC are currently in a state that has banned abortion, this may involve transporting the UC to a state where abortion is legal and available. Further, in states where abortion is legal, but bed space is limited, ORR must attempt to place pregnant UC or UC who are victims of sex-based crimes in the “least restrictive placement.” Also of note, the ORR federal staff must maintain the confidentiality of UC’s pregnancy, including the fact of pregnancy or their decision to have an abortion (before or after the abortion).

As new developments arise, we will update our Dobbs Decision Resource Center. In the meantime, if you have any questions about this executive order, please contact one of the lawyers in Shipman’s Health Law practice group.