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Progressive Picks
The Supreme Court decision in Whole Woman’s Health v. Hellerstedt may have encouraged abortion rights activists eager to see restrictions finally being struck down at the highest level, but at the same time, it offered anti-choice forces something they had been desperately searching for — a tool to unify their conservative base and motivate them to get to the polls that November.
Despite conservatives’ common goal of ending legal abortion, the rise of Donald Trump in the Republican Party had fractured the base. By June 2016, it was clear that the real estate mogul and reality television star was going to be the next Republican nominee for president. While a handful of stalwarts dreamed of ways to block his nomination at the convention the following month, most of the political powers in the GOP were brainstorming how to get the highly religious evangelical wing of the party to show up and cast their ballots for a man with multiple ex-wives, a number of affairs, and no real religious convictions, whom many suspected might not be as opposed to abortion as he claimed on the campaign trail.
What was needed was a solid commitment from their new leader that he would allow the religious right full control of his administration if he won, and the best way to solidify that promise was in a contract with the anti-abortion movement. Enter the Susan B. Anthony List. On September 16, 2016, the anti-abortion organization — which earlier in the primary had been one of the biggest backers of the “anyone but Trump” campaign — announced that candidate Trump had committed to a full-scale pledge to the pro-life movement in the event that he won the White House. Susan B. Anthony List president Marjorie Dannenfelser was designated the national chairwoman of the presidential contender’s Pro-Life Coalition, and according to a letter released by the group, a President Trump would make four commitments to the cause of ending abortion in the United States:
- “Nominating pro-life justices to the U.S. Supreme Court.
- Signing into law the Pain-Capable Unborn Child Protection Act, which would end painful late-term abortions nationwide.
- Defunding Planned Parenthood as long as they continue to perform abortions and reallocating their funding to community health centers that provide comprehensive health care for women.
- Making the Hyde Amendment permanent law to protect taxpayers from having to pay for abortions.”
Of all his promises, it was the commitment to only nominating Supreme Court justices that would overturn Roe that pushed so many ambivalent Trump voters into showing up at the polls.
Due to the sudden death of conservative Justice Antonin Scalia in February 2016, and Republican Senate Majority Leader Mitch McConnell’s refusal to hold hearings on President Obama’s choice to fill Scalia’s seat, the centrist D.C. Circuit Judge Merrick Garland, the Supreme Court had one open seat heading into the November 2016 election. Thus, the idea of only seating “pro-life” judges wasn’t just a theoretical conceit, but one that far right voters saw as an immediate and consequential opportunity, coming at a time when it appeared that Scalia’s death was about to solidify a solid pro-choice majority on the Court. With Scalia’s seat still open, and the possibility of a Republican presidential win in November plus the likelihood of more Court vacancies to fill in the future, conservatives had the chance to alter the trajectory of the highest court in the nation for decades to come. If anything, the ruling in Whole Woman’s Health v. Hellerstedt only made the need to control Scalia’s seat even more urgent to anti-abortion activists.
It may not have been enough to win Donald Trump the popular vote, but the efforts paid off. According to a Pew Research Poll that analyzed the November 2016 results, 8 out of 10 white evangelical voters cast their ballots for Trump, an even larger pool of support than Mitt Romney in 2012, John McCain in 2008 or George W. Bush in 2004.
If the religious right put their faith in Trump (or at the very least, the myriad of stalwart leaders who were backing him, ranging from Vice President Mike Pence to James Dobson of Focus on the Family, Family Research Council’s Tony Perkins, Gary Bauer, the Copelands, Paula White, Jerry Falwell Jr. and more), they weren’t disappointed. After his electoral college win, now President Donald Trump immediately filled his administration with social conservative activists and evangelicals, giving them prime cabinet appointments and roles in a variety of administrative departments — especially the Department of Health and Human Services (DHHS).
Abortion opponents filled the DHHS, bringing a completely new vision to a department that had been far more subtle about its political agenda under Democratic President Barack Obama. “The Trump administration stacked the HHS department with abortion opponents with records a mile deep and a decade wide,” explains Mary Alice Carter, executive director of Equity Forward, a watchdog reproductive rights organization currently researching the Trump DHHS. “He’s taken people from external special interest groups working against the policies at the HHS and now brought them in to undermine them from inside. It’s everything from lawyers who worked to undermine the contraceptive mandate in the Affordable Care Act to people who supported abstinence only sex-ed.”
Most notably, the DHHS added language that supported the idea of “personhood” by defining life as beginning at the moment an egg is fertilized, codifying that into their mission statement in October 2017. “HHS is the U.S. Government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves,” the revised Organizational Structure segment reads. “HHS accomplishes its mission through programs and initiatives that cover a wide spectrum of activities, serving and protecting Americans at every stage of life, from conception [emphasis added]. HHS is responsible for almost a quarter of all Federal outlays and administers more grant dollars than all other Federal agencies combined.” The obsession with potential embryonic and fetal life would come to guide a variety of DHHS policies, especially its stance on immigration and birth control.
The protection of potential fetal life came to a head in 2018, when Scott Lloyd was transferred from his role as the director of the Office of Refugee Resettlement (ORR). Lloyd had been at the center of the migration crisis, mishandling the family separations policy that allowed agents to steal young children and infants from the arms of parents entering the United States seeking asylum from their home countries, and throwing minors into camps while detaining and often deporting their parents, all without any attempts to reunite these families in the long run. These certainly weren’t the acts of a department allegedly committed to public health — detaining children, separating them from their families and housing them in shelters with inadequate space, resources and medical care isn’t exactly the healthiest environment for children. But it was Lloyd’s repeated efforts to deny pregnant minors the opportunity to obtain an abortion that was the most remarkable example of the Trump administration’s new “fetus first” agenda.
Lloyd’s refusal to allow teens to access terminations came to the forefront in the case of “Jane Doe,” a pregnant minor who sought a judicial bypass to avoid the parental notification law in Texas so she could end a pregnancy that was not discovered until she reached the United States. “Jane” was granted the bypass, but was blocked by the Office of Refugee Resettlement, which refused to allow her to leave her shelter in order to obtain the abortion.
“Jane” wasn’t alone. According to memos uncovered by VICE News, Lloyd intervened in the abortion cases of several minors, either indirectly or directly attempting to coerce pregnant young refugees out of ending their pregnancies. The memos and depositions from the American Civil Liberties Union depicted an ongoing mission to keep teens pregnant against their will, forcing them to undergo counseling from anti-abortion “crisis pregnancy centers,” and even in some cases, being counseled by Lloyd himself.
One teen even had Lloyd and his counterparts try to coerce her into undergoing the medically unproven “abortion reversal” procedure, which was discussed in chapter eleven. The teen, who was pregnant due to sexual assault, was taken to a hospital after taking her initial pill and forced into an ultrasound to see if a “reversal” was still possible. The ORR then sent an email to the clinic that provided the medication, asking if the protocol for a “reversal” would work. Luckily the teen managed to take her follow-up medication within the recommended forty-eight hour window.
Lloyd and his colleagues also suggested that while minor teens in detention did have the same right to an abortion that any pregnant teen citizen had, the government had the right to not “facilitate” the abortion in any way. It was that extreme definition of “facilitate” that allowed Lloyd and his cohorts to justify repeatedly blocking “Jane Doe” from an appointment to terminate her pregnancy, hoping to deter her long enough that she reached the gestational limit for having an abortion, which is twenty weeks in Texas.
The gambit nearly succeeded, as it took over a month for “Jane Doe” to receive her abortion, after Lloyd and the ORR refused to grant her temporary release from custody to visit the clinic. “Jane” was eventually represented by the American Civil Liberties Union, which sued the DHHS and demanded they give her access to her constitutionally promised procedure. On October 18, 2017, the ACLU obtained a court order to force Lloyd to release “Jane Doe” from custody to begin her abortion, and she was able to have the mandatory face to face pre-abortion counseling the following day. But the ORR then appealed the decision of the circuit court judge, preventing “Jane” from having the actual procedure on October 20, as scheduled.
The battle over “Jane Doe’s” abortion made it to the U.S. Court of Appeals for the D.C. Circuit, where the it was reversed and sent back to the same judge who had previously upheld Doe’s right to terminate her pregnancy, who reiterated that opinion. While the Justice Department paused to consider whether to appeal to the Supreme Court, Doe’s advocates rushed her to a clinic where she was able to immediately obtain a termination. She was already more than fifteen weeks pregnant.
Unfortunately, the case of “Jane Doe” wasn’t an outlier, but a sign that the Trump administration would radically reinterpret the very definition of abortion rights. “We’ve seen an elevation of ideology over evidence in the HHS’s interpretation of what the right to an abortion means when it comes to people in custody,” says Equity Forward’s Carter. “What we saw from Scott Lloyd at the Office of Refugee Resettlement was a fundamentally different reading of the right to access abortion in the United States for someone in the U.S.” According to Carter, this new interpretation could eventually be applied to women in federal prisons, to public hospitals that get grant money from the government, and people being held in detention by Immigration and Customs Enforcement. “It was very disturbing to hear the government say where they believe the right to an abortion ends and where they can decide that for other people,” Carter adds. “It was a very stark interpretation.”
It was also a preview of the fight in the courts over abortion access that is currently unfolding. Trump’s second Supreme Court appointment, Brett Kavanaugh, was a judge on the D.C. Circuit during the fight over “Jane Doe’s” abortion, and issued an opinion that would have given the administration legal cover to run out the clock on her ability to access care. In response to losing the court battle and ultimately being unsuccessful in their attempts to block “Jane Doe’s” abortion, the Trump administration, through its Solicitor General Noel Francisco, took the extremely unusual step of asking the Supreme Court to sanction Doe’s ACLU attorneys for supposedly misleading the administration. Francisco, who had ties to the conservative litigation organization Alliance Defending Freedom prior to joining the Trump administration, cited no authority in his request, just the administration’s outrage and contempt that they had been unable to prevent “Jane Doe” from obtaining an abortion. No career attorneys from the Department of Justice signed on to Francisco’s claims, and the Supreme Court denied the request.
In March 2018, following a lawsuit by the ACLU, a federal judge ruled that the Trump administration was not allowed to prevent pregnant, undocumented immigrant teenagers in custody from accessing abortion services. This ruling, at least temporarily, halted the administration’s coercive policy blocking undocumented minors from obtaining terminations.
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