Cross-posted from The Washington Spectator
The first anniversary of Donald Trump’s presidency will occasion lots of commentary on his administration’s jarring record — from the narcissist-in-chief’s tweets and glaring disregard for truth to the performance of federal departments and agencies under his crude and corrosive leadership. My aim here is to highlight one egregious sliver of that record that stands out for me — an abuse of government power that’s emblematic of the administration’s disdain for the rule of law, undocumented immigrants, and women’s reproductive freedom, and also of its degree of capture by the religious far right.
I have in mind the outrageously overreaching legal argument the administration deployed in its high-profile failed attempt to block a 17-year-old undocumented immigrant, held in custody at a government-funded shelter in Texas, from exercising her constitutional right to an abortion. The government argued that temporarily releasing the teenager, known as Jane Doe in court filings, to receive a privately funded abortion would make it “complicit” in an objectionable procedure it is not obligated to “facilitate.”
That justification was no isolated or random bureaucratic turn. It was of a piece with the aggressive drive by conservatives to carve rights-undermining religious and moral “conscience” exemptions into neutral and generally applicable laws and social policies they vehemently oppose.
As Reva Siegel and Douglas NeJaime, professors at Yale Law School and leading scholars in this sphere, explain: “After failing to prohibit abortion and same-sex marriage, conservatives have sought to create religious exemptions from laws that protect the right to abortion or same-sex marriage.”
The notion of government “facilitation” and “complicity” trotted out in the Jane Doe case, now known as Hargan v. Garza, by anti-abortion and anti-contraception crusaders whom Trump has installed in key public positions represents a further ratcheting up of the proliferating complicity claims by private parties, as Cornell Law Professor Michael Dorf noted in his valuable coverage. “Although the federal government was willing to take the girl to a so-called crisis pregnancy center for anti-abortion counseling, it was not willing to permit other people to transport her to have an abortion,” he wrote. “Even that minimal level of noninvolvement was too much involvement in the girl’s abortion, the oh-so-scrupulous government asserted.”
In the midst of the dispute, Slate’s Dahlia Lithwick pointed out that the government’s argument recalled the one “for-profit businesses made in the Hobby Lobby case to privilege their own interests in denying women contraceptive care.” And it is remarkably similar to the claim advanced “when religious entities argued that the mere act of submitting a government form” stating that they would not be providing contraception coverage in their insurance plans for employees “is the equivalent of ‘triggering’ an abortion” and therefore violative of their religious rights. This argument was made in the 2016 Supreme Court case Zubik v. Burwell by Noel Francisco, now the U.S. solicitor general and then the lawyer representing the Roman Catholic archbishop of Washington, Priests for Life, and several other clients who were challenging the Affordable Care Act’s sound preventive requirement that most employer health care insurance plans include free contraception.
The administration’s stance in the Jane Doe case, however, has taken that sort of over-the-top resistance to a scary and unprecedented new level. It is one thing for an individual, such as the conservative Christian baker who was supported by Francisco and the Trump Justice Department in the recently argued “wedding cake” case before the Supreme Court, Masterpiece Cakeshop v. Colorado Civil Commission, to claim (erroneously, in my view), that he is entitled to an exemption from his state’s gay-protective anti-discrimination law. It’s quite another for the government itself to claim a similar right not to follow the law. This was the untoward twist that set me typing.
Linda Greenhouse, the former New York Times Supreme Court reporter and current Times, contributing op-ed writer and Yale Law School teacher, calls the government’s novel facilitation-complicity notion “head-spinning” and “a symptom of a world turned upside-down.” It is also a sneak expansion of government power to defeat people’s rights, which courts should not allow.
Essentially, young Jane Doe was held hostage to the extreme anti-abortion-rights position of a handful of government officials. These were led by Scott Lloyd, whom Trump named as director of the Office of Refugee Resettlement of the Department of Health and Human Services despite his having no real experience in resettling refugees.
Upon assuming that position, as another Slate writer, Mark Joseph Stern, has well recounted, Lloyd immediately set about reversing Obama administration policy and practice by prohibiting “unaccompanied minors in federal custody from obtaining abortion services” and preventing “these minors from meeting with attorneys and going to court to request permission to terminate their pregnancies” in substitution for their distant parents. Now advancing his long-standing private mission on the public payroll, Lloyd personally involved himself in pressuring pregnant minors like Jane Doe about their abortion decisions. Stern wrote that Lloyd “imposed his beliefs on those in his care with little regard for their own well-being,” behaving, overall, “as though he is above the law.”
Of course, that is not the administration’s framing. It has sought to portray its standing in the way of Jane Doe’s abortion—as the medical risks of the generally safe procedure grew, and Texas’s 20-week deadline for legal abortions approached—as merely exercising the government’s recognized right not to “facilitate” an abortion. The administration contends it is not claiming a new exemption from existing law but rather favoring childbirth over abortion, as existing Supreme Court case law permits, a decidedly implausible explanation.
The applicable 1992 high-court ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, upheld the basic right the Supreme Court protected in Roe v. Wade. But the Casey decision went down a wrong path by expanding the government’s latitude to try to persuade women to choose childbirth over abortion. Even so, Casey drew a crucial line, allowing the government to “inform but not hinder” a woman’s abortion decision, a directive Lloyd and like-minded Trump hands skipped past. Other precedents the administration has cited allow the government not to pay for abortions for low-income women, another wrong turn in abortion-rights jurisprudence and off-point, since government funding was not an issue in the Jane Doe scenario. A private fund paid for the abortion once an en banc ruling, on October 24, by the U.S. Court of Appeals for the District of Columbia Circuit, held against the government, allowing the teenager to terminate her unwanted pregnancy.
(In an epic act of bad loserhood, Francisco, the solicitor general, then responded to criticism from his old crowd of fervent anti-abortion-rights activists that he and his government colleagues waited too long to seek an injunction from the Supreme Court to stop the abortion, by filing a blame-shifting motion asking the justices to take up a wholly baseless complaint about the honorable ACLU lawyers representing Jane Doe, alleging they misled his office about the timing of the procedure. But that’s another story.)
As the appellate court’s en banc majority concluded, the government’s extreme concept of facilitation was way beyond anything the Supreme Court has allowed. The teenager had obtained a “judicial bypass” from a state judge, certifying that she was adequately mature to make her own decisions about her pregnancy; and transferring her to an appointed guardian ad litem to escort her to the privately financed procedure in no way amounted to government facilitation. All the government had to do was get out of the way. The administration’s assertion—that keeping Jane Doe from terminating her pregnancy for weeks posed no “undue burden” and, indeed, did not really prevent her from getting an abortion because she could always choose to return to her home country (where abortion is illegal) was at once cruel and absurd.
That reality is what drove the en banc ruling. It did not really grapple, and didn’t have to, with the administration’s improper leap I’ve raised here: the assertion by government officials of what amounts to a religious or morality-based conscience claim, essentially converting the beliefs of religious conservatives who backed President Trump in the 2016 election into government policy, to be enforced regardless of the law or of the harm caused to a minor in the government’s custody.
But the issue is not going away. For one thing, Jane Doe is hardly the only unaccompanied minor to have her abortion rights thwarted of late by federal officials. Similar cases are already percolating in the courts. And a pending class-action lawsuit brought by the ACLU seeks to end totally the Trump administration’s new and wholly unconstitutional policy of preventing young undocumented women from obtaining abortions they seek.
Meantime, as Year One of the awful Trump misadventure for democracy concludes, count the assertion of a governmental conscience right to thwart Jane Doe’s abortion access among the administration’s serial abuses of authority.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.