At the core of the anti-abortion movement is the tenet that a fetus is a person whose rights need to be protected. This is how anti-abortion activists justify “heartbeat bills” restricting when women can terminate pregnancies and picketing clinics. The fetus, they argue, deserves the legal consideration due to any human being. Now, the Trump administration is taking this argument to an absurd and cruel extreme. A fetus in the United States requires the full protection and support of American law. As for its undocumented, adolescent mother—well, if she wants her rights, she should leave the country.
Last year, a teenage girl subsequently identified in court documents only as Jane Poe crossed into the United States and was caught by border authorities. She had been raped in her home country, and learned that she was pregnant. She wanted to have an abortion. An acquaintance offered to serve as a sponsor, which would allow her to leave the shelter in which she has been detained while she waited for immigration proceedings. Jane Poe hesitated. She worried that the potential sponsor and her mother would beat her if she tried to end the pregnancy. She asked the shelter to allow her to have the procedure. She was not in a state that required parental consent for a minor to have an abortion and she was legally entitled to the medical help. But the shelter refused, and the young woman couldn’t leave without staff approval. Government shelters are locked and closely watched; the movements of their inhabitants are tracked. The young woman tried to kill herself.
Jane Poe’s case is the third in a recent disturbing pattern among undocumented minors in custody who have been denied abortions. These cases are now subject to a class-action lawsuit led by the ACLU. The Office of Refugee Resettlement (ORR), the agency within the Administration for Children and Families responsible for housing young people who come across the border, is led by an anti-abortion activist appointed by Trump, Scott Lloyd. Lloyd has made it a policy to block undocumented pregnant minors from getting abortions, personally intervening to discourage and dissuade these “unaccompanied alien children,” or “UACs,” as he calls them, from taking an action he views as “violence against an innocent life.” In so doing, Lloyd has advanced the Trump administration’s attacks on both the rights of women and the rights of undocumented people.
Lloyd has little qualification to lead the agency, except that his extreme views on women’s health align with those of many in the administration. Before he worked at Health and Human Services (HHS), Lloyd actively campaigned against abortion. He has been on the board of a crisis pregnancy center, a type of institution that masquerades as an abortion clinic and provides false information designed to discourage women from terminating pregnancies. He has suggested that women who receive contraception be forced to sign a pledge not to have an abortion, and has argued that access to abortion hinders men’s rights. “Contraceptives are the cause of abortion… I know this is counter-intuitive, but it is only so because Planned Parenthood and other population control entities have been successful in spreading misinformation for so long,” he wrote in an article for the blog Ethika Politika in 2011 while serving as a lawyer for the Catholic anti-abortion group LegalWorks Apostolate.
In March, shortly before Lloyd took his position, the ORR announced that the director of the agency would need to personally approve any abortion required by a pregnant teenager. Lloyd then ordered staff to direct young women who wanted to end pregnancies to crisis pregnancy centers rather than to doctors. In at least one case, he personally contacted a pregnant teenager to pressure her out of an abortion. When pressed in a congressional hearing in October, he refused to justify his actions or even acknowledge them: “I meet with dozens and even perhaps hundreds of the people who[m] we serve, the populations that we serve. Among them, I’m certain that some of them were pregnant at the time.”
The government seems nearly incapable of legally justifying the treatment of minors within its care. Anti-abortion advocates usually try to restrict access under the pretense of safety and medical necessity. In the recent Supreme Court case about Whole Women’s Health, for example, the state of Texas argued that abortion clinics had to undergo unnecessary and expensive renovations to adequately serve their patients, a reasoning that the court ultimately judged was an imposition of unreasonable costs on the providers in order to force them out of business and therefore an “undue burden” on women. Yet, in an oral argument about another young woman denied an abortion (known to the court as Jane Doe) in front of judges in the D.C. Circuit from mid-October, the lawyer for the government, Catherine Dorsey, was unable to explain why the federal government prohibits minors in its care from obtaining abortions when it does not, on paper, block the same procedure among adults. How is this not an “undue burden” on the pregnant teenagers, the judges asked? If a young woman in a government shelter wants an abortion, Dorsey said, she can voluntarily deport. A panel of three judges on the D.C. Circuit Court took a compromise position, saying that HHS should find a sponsor for Jane Doe who would allow her to have the abortion (HHS had already tried for several weeks, and failed, to find such a sponsor). The entire D.C. Circuit Court, sitting en banc, then ruled in favor of Jane Doe’s right to an abortion. Now the government is trying to get the Supreme Court to vacate this earlier ruling; the ACLU has also filed a motion for class action on behalf of all pregnant women in ORR custody and has filed a request for a preliminary injunction to stop the government from blocking other women in the future from accessing abortion services.
This obstruction—and willful disregard of constitutional rights—is part of the administration’s general assault on women’s health, Brigitte Amiri, an ACLU lawyer who has been arguing the lawsuit on behalf of teenagers in ORR custody, told me. The government has also tried to allow more employers to deny their staff contraception and remove the contraceptive mandate from the Affordable Care Act. Republicans have even tried to stick anti-abortion language into the tax bill, enabling an “unborn child” to have access to a college savings plan. Yet she’s been shocked by how brazen the government has been in the Jane Doe case, she says. And while the government claims that cases such as Jane Poe’s are “very rare,” the opposite is true. Some 420 unaccompanied and undocumented pregnant minors were held in government custody during a twelve-month period between 2016 and 2017. No doubt, some of these pregnancies are the result of consensual sex. In much of the United States, though, the age of consent is seventeen. Rape and sexual assault are common on the ever-more dangerous paths that migrants take to cross the border.
In the absence of a legal justification for its actions, the ORR now uses arguments that come directly from the anti-abortion movement. In a recently unsealed letter explaining his decision to deny Poe’s abortion, Lloyd acknowledged that the young woman had been raped. But, he wrote, “It is possible, and perhaps likely, that this young woman would go on to experience an abortion as an additional trauma on top of the trauma she experiences as a result of her sexual assault.” He cited a Catholic anti-abortion website as evidence. He did not acknowledge that the young woman was legally allowed to obtain the abortion. Instead, he attacked the procedure itself. “Implicit here are the dubious notions that it is possible to cure violence with further violence,” he wrote, “and that the destruction of an unborn child’s life can in some instances be acceptable as a means to an end.” If you erased the Administration for Children and Families logo at the top of the document, it could easily be mistaken for a letter from WitnessWorks Foundation for a Culture of Life, the anti-abortion group Lloyd founded.
What’s even more startling about the government’s argument is the implication that while the fetus may be a person, its mother is not. The anti-abortion movement depends on the supposed “personhood” of a fetus. This is how the government can say that it is “promoting childbirth and fetal life” when it is forcing a raped teenager to give birth against her will. But what about this person whose rights are being denied? In Lloyd’s letter, the fetus is “a human being,” “a child,” and “an innocent life.” The young woman is just a “UAC.” “The UAC program has no prosecutorial authority,” he writes, “but is very strong… in protecting UACs from rape,” Lloyd writes. No backing was given for this statement.
The government itself did not go so far when speaking before the D.C. Circuit as to claim that a person crossing the border forfeits all control of her anatomy. But in the briefs it has received in support of its case, the argument is clear: come into the United States without documentation and you will lose your rights. The states of Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia, and Kentucky have together submitted an amicus brief in support of the government, arguing that:
Simply because an individual is a “person” covered by the Fifth Amendment, it does not follow that the alien is necessarily “due” the same scope of rights accorded to citizens or lawfully-present aliens.
Or, as the Legal Center for the Right to Life put in an amicus brief:
An illegal alien has a status no greater than that of a trespasser at common law, who may be properly detained and restricted in movement, especially if the trespasser is unwilling to leave. A landowner who restricts the movement of a defiant trespasser is not liable for false imprisonment.
It does not take a close reading to realize the threats inherent to this argument. An undocumented migrant is a criminal intruder; the United States is the property owner with the gun. As Judge Patricia Millett wrote responding to similar arguments in her dissent to the first Circuit Court decision:
The implications of amici’s argument that J.D. [Jane Doe] is not a “person” in the eyes of our Constitution is also deeply troubling. If true, then that would mean she and everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction).
By denying these young women abortions, the government is not only targeting defenseless women for cruel and unlawful bans. It is also trying to send a message: cross the border and we will hurt you.
Through the ACLU’s litigation, the three young women under custody have obtained abortions. But regardless of the outcome in this case, the administration will continue to target the most vulnerable for its hateful anti-abortion policies, chipping away at human rights in the service of “life.”
Madeleine Schwartz, a former member of the New York Review editorial staff, lives in Berlin, where she is a Robert Bosch Foundation Fellow. (December 2017)