Those geniuses at Hulu turned Margaret Atwood’s 1985 novel, The Handmaid’s Tale, into a harrowing and Emmy-award-winning television series. Dystopian fiction, the story centers around Gilead, a theocracy in which fertile women are sexual servants for the men in power whose wives are barren. It’s disturbing, to say the least.
Perhaps the United States will never be Gilead. But the Trump Administration has been taking unprecedented actions to interfere with women’s reproductive freedom and health in the name of religion. A junior version of The Handmaid’s Tale is playing out in Texas as we speak.
Here’s the basic script: Jane Doe is a pregnant teenager who seeks to terminate her pregnancy. The Constitution gives her the right to make that choice. She has obtained the court order necessary in Texas to terminate her pregnancy without involvement of her parents. But the she can’t get an abortion because the federal government, in whose custody she is being held because she is an undocumented immigrant, doesn’t believe in abortion—or the Constitution—anymore, and thus refuses to allow her to be taken to an abortion provider. The government is holding her hostage because the Trump Administration has decided that abortion is morally wrong—even though constitutionally protected—and that it will actively obstruct women’s access to it. All of the sudden, and completely unnecessarily, Jane is now starring in a horror movie.
Act One: The Barbarians at the Gate
Jane Doe cannot obtain the abortion to which she is constitutionally entitled because the federal government will not allow it. Because Jane Doe was apprehended as an unaccompanied minor after she crossed the border into the United States, she was put in the hands of the federal Office of Refugee Resettlement (ORR), a division with the federal Department of Health and Human Services (DHHS), which is responsible for the “care and custody of all unaccompanied  children, including responsibility for their detention, where appropriate.” While in the care of the federal government, ORR must serve the best interests of the minors, which includes complying with all the terms of a settlement agreement in a prior case, Flores v. Reno. Under that settlement, ORR, among other responsibilities, must provide or arrange for “appropriate routine medical . . . care,” specifically including “family planning services and emergency health care services.”
Enter the Trump Administration. As part of a wide-ranging effort to implement an anti-abortion policy agenda, the Trump Administration has been rolling back access to reproductive healthcare at every turn. As explained in detail here and here, this administration has erected significant obstacles not only to abortion, but also to family planning services. In addition to changes already implemented such as the reinstatement and vast expansion of the Global Gag rule and the rollback of the Affordable Care Act’s contraceptive mandate, a recently leaked memo details a list of policy priorities that is more worthy of an April Fool’s joke than an Executive Branch wish list. It says the Title X family planning budget should “be cut in half at least,” with funds diverted to childcare or teaching adolescents how to use the rhythm method to avoid pregnancy (now labeled “fertility awareness” by the new administration). It calls for defunding completely the Teen Pregnancy Prevention Program based on the completely false claims that “it has not worked, [and] there is no positive evidence and some negative evidence.” (Teen pregnancy is at an all-time low and took a sharp downward turn after this program was implemented.) There is no downside to reducing teen pregnancy—and the Trump Administration’s current claim that education and contraceptive access lead to sexually risky behavior is demonstrably false. The memo also calls for the cut of foreign family planning funding through USAID and a diversion of funds to “fertility awareness” programming. Specifically, it states that “no other family planning programming for girls should be provided except fertility awareness method.”
Jane’s story is part of the larger story of the current administration’s determination to undermine women’s reproductive freedom. In March 2017, ORR announced a new policy in keeping with the other changes implemented (or wished for) by the Trump Administration: federally funded shelters are prohibited from taking any action that facilitates abortion access for unaccompanied minors in their care without direction and approval from the Director of ORR. And no such approval will be given since the official policy of ORR now is that contractors who are running these shelters “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.” And the director with the power to approve release is E. Scott Lloyd, an anti-abortion crusader who wrote the new rules. This is the policy being used to prevent Jane Doe from obtaining an abortion.
The shelter in which Jane Doe is being held is run by a private contractor, who is willing to release her to a guardian ad litem in order to get her abortion, but ORR has forbidden the contractor from doing so. Jane Doe’s attorney and guardian ad litem are ready and willing to transport her to the appointment, and the government is not being asked to pay for any aspect of transport or the medical procedure. The holdup is that Jane wants a procedure they do not want her to have, so the government has thrown up a roadblock that only a court can remove.
According to papers filed on Jane’s behalf by the ACLU, she is not the first target of the government’s anti-abortion extremism. Other undocumented minors have had to suffer through a variety of interventions designed to stop them from having abortions; some girls report having received a personal phone call from Lloyd, in which he tried to talk her out of seeking an abortion. Just try to imagine the coercive power of a phone call from a high-ranking governmental official to an unaccompanied, pregnant minor from a foreign country, who is being held in a detention center, alone and afraid.
Another feature of the new ORR policy is that girls who are considering abortion must be sent to a “Trusted Provider” for counseling. The list of approved providers is composed primarily of Crisis Pregnancy Centers, which oppose abortion categorically and do not provide neutral or even sometimes true information. Other alleged interventions have been even more extreme, including one case in which a minor was sent to an emergency room in between the two doses of mifepristone she was taking to medically end her pregnancy. The hospital was asked to determine the health status of the fetus and to stop the abortion process if possible. Other girls have had their parents or sponsors informed about their pregnancies and abortion plans, even though the girls have a constitutional right to forego parental notification through a judicial bypass. Indeed, in one case, Scott Lloyd himself wrote an email to a detention center insisting that it inform a minor’s parents of the minor’s abortion even though she had the legal authority to forego notifying them.
By any means necessary, ORR is determined that pregnant girls in detention carry their pregnancies to term. If all the intimidation and coercion fails, ORR tells shelters to simply refuse to let pregnant girls out the door.
Act Two: The Courthouse Steps
On October 5, Jane Doe requested a temporary restraining order (TRO) from a federal district court in Washington, DC, asking that the Department of Health and Human Services, of which ORR is a part, be prohibited from further interfering with her efforts to obtain an abortion.
To obtain a TRO, a plaintiff must show (1) that she is likely to succeed on the merits; (2) that she is likely to suffer irreparable harm without preliminary relief; (3) that the balance of equities tips in her favor; and (4) that an injunction is in the public interest.
Legally speaking, this is not a complicated case. Jane Doe clearly has a right under relevant Supreme Court precedents to terminate her pregnancy. Her rights derive from the two main precedents on abortion rights – Roe v. Wade and Planned Parenthood v. Casey – as well as from a case in which these rights were applied to minors—Bellotti v. Baird.
In 1973, the Supreme Court held in Roe v. Wade that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability.
In 1992, the Court revisited Roe and reaffirmed its “central holding” in Planned Parenthood v. Casey. It did restructure the framework for analyzing whether government regulation of abortion infringed a woman’s right to seek an abortion or not, but held again that the right to terminate a pregnancy is constitutionally protected. Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
The Supreme Court reaffirmed constitutional protection for the abortion decision as recently as 2016, in Whole Woman’s Health v. Hellerstedt. In that case, the Court invalidated two provisions of Texas law that imposed requirements that made it difficult or impossible for many abortion clinics to operate without improving the health of even a single woman. Those regulations constituted an undue burden that Texas had placed in front of women seeking to terminate their pregnancies.
The right to seek an abortion belongs to minor as well as adult women. In a series of cases, the Supreme Court has held that minors also have the right to seek an abortion without undue burden from the government. Moreover, the Court has held, no third party can be given an absolute veto over the minor’s decision to terminate a pregnancy. Not a parent. Not a spouse. And certainly not the government itself. In Bellotti v. Baird, the Court held that state laws requiring parental consent for abortion are constitutional only if the state provides a judicial bypass procedure that allows the minor to obtain permission from a court to make the decision on her own. To be constitutional, such a procedure must be expeditious, confidential, and must allow the minor to make her own decision if she is mature enough to make an informed decision or if her best interests would be served by having an abortion.
Texas is not an easy place to get an abortion (despite Attorney General Paxton’s bizarre plea in this case to stop Texas from becoming an “abortion sanctuary state”). In furtherance of an anti-abortion agenda, the Texas legislature has imposed numerous roadblocks in the path of any woman who seeks an abortion, including the two provisions that were struck down by the Supreme Court in 2016. Current law requires state-directed counseling that includes some arguably false information about the risks and consequences to a woman’s health from choosing abortion, a mandatory ultrasound during which the provider must show and describe the image to the woman, a 24-hour waiting period, and a ban on all but life-saving abortions after 22 weeks of pregnancy based on scientifically disproven theories about fetal pain. Forty percent of the state’s abortion clinics have closed in just the past five years due to the hostile landscape.
With respect to minors, Texas does require parental notification and consent. But, in line with Bellotti, it provides a judicial bypass option. Since first enacted in 2003, the bypass law has been made stricter and stricter. Yet, despite all these restrictions, Jane Doe in this case successfully received a judicial bypass order, allowing her to consent to her own abortion without notification to or consent by her parents. Thus, she has exactly the same rights as an adult woman to obtain an abortion that complies with any state restrictions.
Moreover, the Due Process Clauses of the Fifth and Fourteenth Amendments, under which the right to seek an abortion falls, apply to all persons present in the United States, regardless of immigration status.
Act Three: Justice Delayed, Justice Denied
The federal district court agreed with Jane Doe that ORR’s refusal to allow her to seek abortion care constituted an unconstitutional undue burden. She is likely to succeed on the merits in challenging ORR’s actions, and the lack of immediate relief would obviously cause her irreparable harm. The court thus ordered the relevant officials to transport or allow her to be transported “promptly and without delay” to the closest abortion provider so she could obtain the state-mandated counseling and then the abortion procedure itself. This order was filed on October 18, over three weeks after ORR forced Jane Doe to miss her original counseling appointment. But rather than comply, the federal government appealed.
On appeal to a three-judge panel of the US Court of Appeals for the DC Circuit, the federal government made two arguments. First, it argued that while the government cannot constitutionally prohibit a woman from seeking a pre-viability abortion, it does not have to facilitate the abortion either. And by releasing her to a guardian or other adult, the government would be facilitating her abortion. Second, it argued that its refusal to authorize her release or transport her to the abortion provider does not impose an undue burden on her abortion right because she could still get an abortion either by voluntarily departing the United States and returning to her home country or by finding an approved sponsor who would agree to take her in pending immigration proceedings against her. With an approved sponsor, Jane Doe could be released from custody and, presumably, permitted to exercise her right to seek an abortion without any approval from the government.
Neither of these arguments is persuasive, and, indeed, the judges on the bench did not seem persuaded. While it is true that the Supreme Court has ruled that the government does not unduly burden the right to seek an abortion by refusing to fund the procedure, the Court has never applied that reasoning outside of the funding context. The government is entitled to express a preference for childbirth over abortion, but only by providing information that might change a woman’s mind prior to consenting to the procedure. Moreover, the federal government, as its lawyer admitted during the oral argument, routinely makes it possible for women in prison to obtain abortion care and, indeed, for adult women in immigration detention to do so as well. And indeed, the government is constitutionally required to do so. The lawyer was able to offer no explanation as to why signing the release order necessary for Jane Doe was different from those acts of “facilitation.” The facilitation argument is even weaker given that ORR is only involved in this situation because it chooses to be. The contractor who runs the shelter has agreed to release Jane Doe to her guardian or even to provide transport directly. But ORR’s new policy states that the contractor must seek ORR approval for any release relating to abortion care—although shelters are free to release detainees for any other type of medical care, including family planning appointments. All the federal government has to do to wash its hands of any connection with abortion is to stop interposing itself in abortion care.
The government’s lawyer tried to argue that because the federal government has an obligation to serve the best interests of the children in its custody, it could exercise the discretion to decide that abortion is not in their best interests. But that line of reasoning simply cannot be squared with the Supreme Court precedents making clear that minors have the same constitutional right to seek an abortion as adult women and that no third party can be given veto power over a woman’s decision to seek an abortion. At a minimum, the government would have to provide its own bypass procedure so that a minor in its custody could seek permission directly from a court to bypass the government’s prohibition, akin to the judicial bypass for parental consent. Putting aside how ridiculous it would be for the federal government to require a woman with a time-sensitive healthcare need to seek two different court orders in two different courts, we can reject the government’s suggestion in this case since it offers no such bypass of its anti-abortion policy. The state of Texas has deemed Jane Doe sufficiently mature to make her own abortion decision—not something the state does lightly—but the federal government said in court that it will only respect her judgment if she chooses to continue the pregnancy.
Much of the 90-minute oral argument (the first ever to be live-streamed by this particular court) was devoted to the sponsorship option. Judge Kavanaugh liked the idea of avoiding the constitutional questions if it was unnecessary to reach them. He queried more than once whether sponsorship wouldn’t be a win-win since it would enable Jane Doe to get her abortion but also to be out of custody while she awaits immigration proceedings. The government’s lawyer was able to provide very little information during the argument, however, about how the sponsorship process works and whether it would be possible to secure a sponsor expeditiously. (Since then, the former director of ORR has filed an affidavit explaining the process and reaching the conclusion that it is very unlikely a sponsor could be found and put in place in the near future.) She was also unable to say whether ORR had a policy of rejecting sponsors who would support Jane Doe’s plan to obtain an abortion.
After the argument, the government notified the court that Jane Doe’s home country (identified only in a sealed record) does not permit abortion, thus eliminating its “voluntary departure” option as a means to avoid the government’s undue burden.
The same day the case was argued, October 20, the appellate panel issued a 2-1 ruling that purports to be a compromise but in fact delays Jane Doe’s access to abortion even further. The short ruling provides little by way of explanation, but concludes that Jane Doe’s right to seek an abortion is not unduly burdened as long as ORR can secure a sponsor for her expeditiously. It thus lifted the TRO until October 31, giving ORR eleven days either to release her to an approved sponsor, who will allow Jane Doe to get an abortion, or sign the authorization releasing her for transport to the abortion provider.
Is eleven more days such a big deal? Yes.
First, pregnancy, as everyone knows, is an ever-changing process. When Jane Doe first sought the court order allowing her to bypass Texas’s parental consent laws, she was only nine weeks pregnant. She would have had multiple options for methods of termination, including an incredibly safe medication abortion. But thanks to the government’s delay—both in refusing to allow her access to the doctor in the first instance and then by appealing the federal court TRO—she will be nearly seventeen weeks pregnant by the time she is able to undergo the procedure. While abortion is still significantly safer than childbirth, every week into a pregnancy adds risk to the abortion procedure, and the first-trimester methods she could have opted for are now foreclosed. Even more worrisome, depending on future appeals and compliance with court orders, Jane Doe may find herself in a position where she is too pregnant to receive a legal abortion.
Second, when Jane Doe revealed her desire to have an abortion, she was met with hostility, resistance, and taken to a “crisis pregnancy center” so she could be talked into continuing with the pregnancy. This was part and parcel of a system that is trampling on the constitutional rights of some of the most vulnerable people in this country—unaccompanied, pregnant minors in detention. There is no question that the federal government is violating Jane Doe’s constitutional right to seek an abortion without undue burden. ORR’s new policy has boldly and unapologetically stripped undocumented minors of their reproductive freedom. The role of courts is to recognize constitutional violations and remedy them—not to force a teenager to carry an unwanted pregnancy for at least two more weeks.
As Judge Millet wrote in dissent to the appellate court’s order,
There are no winners in this cases like these. But there sure are losers. As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.
Jane Doe’s fate remains in the balance, even though her legal rights are clear. Her lawyers have filed a petition for rehearing en banc by the full panel of judges on the DC Circuit. The federal government has filed an opposition to this petition. In the meantime, Jane Doe sits under “close control” by the shelter officials watching the days of her pregnancy tick up. It is no more the right of E. Scott Lloyd to insist that Jane Doe carry this pregnancy to term than it is the right of Commander Warren to insist that his handmaid carry a child for him.