The administration threw every obstruction at the pregnant 17-year-old refugee in Texas from having an abortion, not on legal but "religious freedom" grounds. Next time they may not fail.
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“Jane Doe” is a 17-year-old girl who fled abusive parents in her home country to come to the United States for a chance at a better life. Little did she realize that she would be trapped in a different type of abusive relationship at the hands of a federal government that is supposed to stand for freedom and equality for all.
Like many unaccompanied female minors entering the country, Doe learned once she was in the U.S. that she was pregnant—and she did not want to be. She followed all of the rules set out for a teen to seek an abortion in Texas. She saw a judge to get a judicial bypass in order to not need the required parental consent that the state requests. She agreed to arrange her transportation and pay for the procedure without any assistance from the government. She even did her mandatory pre-procedure counseling with a separate visit from the actual appointment for her abortion.
When it came to her final visit to have the pregnancy terminated, however, her government-funded shelter refused to let her go. Doe filed a lawsuit, she received representation from the ACLU, and for four weeks she continued jumping through hoops in order to be allowed to obtain the abortion.
The waiting game was intentional. What Doe experienced is a much more vivid example of the way restrictions pile on top of one another in an attempt thwart a pregnant person from terminating until it is legally too late to do so, forcing her to carry to term or seek out illegal remedies. According to reports Doe was already near or at 15 weeks, leaving her only a few more weeks before she hits the barrier for gestational limits in the state of Texas.
What most of those reports don’t mention, however, is that if not for a temporary restraining order that put the state’s ban on D&E abortions—the medical procedure that is commonly used in almost all second trimester abortions—on hold, Doe would have already been too late to make any choice at all. The hearing on that ban is expected to be on November 2, and if the restraining order is dropped then countless other pregnant people like Doe will find themselves racing an even faster clock for abortion access.
Doe’s prospects shifted dramatically last week as a three-judge federal panel ruled that she must try to find a government-approved sponsor in the U.S.—most likely an adult family member somewhere already in the country—in order to be released from her current refugee shelter and go to her final appointment. If she couldn’t find one by October 31 she could again petition the court to see if they might force the Department of Health and Human Services to allow her to leave the center for the abortion. Doe has already spent the past six weeks attempting to locate a sponsor—with no luck.
This entire conflict developed from Trump administration’s evolving claims as to what constitutes “facilitating an abortion.” While his DHHS is currently rewriting rules that define their organization’s role as accomplishing “its mission through programs and initiatives that cover a wide spectrum of activities, serving and protecting Americans at every stage of life, beginning at conception,” their representative at the Office of Refugee Resettlement [ORR] E. Scott Lloyd has taken on the role of “foster father” to pregnant minors like Doe. To him, that means attempting to dissuade them from terminating by having them shipped to crisis pregnancy centers or making them watch their fetuses on an ultrasound (something she will have to do at the abortion clinic, regardless). This pro-birth coercion goes beyond the “gag rules” put on federal agencies during the Reagan and Bush years, where no one was allowed to mention abortion as a possibility, and instead is an active cheerleading for blocking a person’s right to terminate.
The Trump administration, however, attempted to downplay their efforts. “We’re not putting an obstacle in her path,” HHS lawyer Catherine H. Dorsey told judges, according to the Denver Post. “We’re declining to facilitate an abortion.” And by “facilitating” the administration doesn’t mean covering her medical costs, or even driving her to a clinic. They literally mean being asked to “draft and sign approval documents,” according to Vox, allowing the abortion to occur.
If this sounds a little familiar, it should. This was the exact argument that Little Sisters of the Poor, Hobby Lobby, and others used when they contended that by allowing all forms of contraception to be covered by their insurance plans, they were having their religious rights denied and being forced to participate in abortion. When the Obama HHS responded that they simply needed to sign a piece of paper in order to opt out and allow others to provide the benefit, the groups refused, calling even that act a means of facilitating so-called “abortifacient” medication usage.
Apparently to social conservatives, anything less than directly blocking access is officially “facilitating,” and that’s a change that should alarm everyone, especially since the government is now directly taking on that message. As Dahlia Lithwick explains at Slate, the administration itself is moving from arguing from a government or constitutional standpoint, and is instead wrapping itself in the same religious context that other faith-based organizations have used to undermine legal, constitutional guarantees.
“In Hobby Lobby at least, there were actual religious persons claiming to be burdened. Jane Doe is pitted against the federal government. And the federal government doesn’t get to have theological views,” writes Lithwick. “Theirs isn’t a legal argument. It isn’t even a particularly moral one. It chimes in the key of an ontological religious abstraction, an idea that the intervention of a federal judge, a state judge, a lawyer, a guardian ad litem, and the wishes of a young pregnant girl are all immaterial because the only moral agent or actor that matters here is the head of ORR—who wants to protect the unborn and will use his office to effectuate that.”
The quest to deny Jane Doe an abortion is unfortunately far more sinister than simply a bunch of administration lawyers and directors imprisoning an undocumented teen and forcing her to remain pregnant and give birth against her will. It’s also the first clear step that the administration is trying to define itself as a religious entity with its own singular set of “sincerely held moral beliefs” that it can invoke in order to avoid fulfilling constitutional obligations when it comes to an abortion. And if it is successful here, there is no reason to think they won’t then apply the same arguments to allow them to avoid punishment if they violate civil rights by discriminating against people due to their race, religion, gender or sexuality, or if they refuse to uphold other constitutional rights such as freedom of speech, press or assembly.
On Tuesday afternoon, the full U.S. Appeals Court overruled the prior circuit panel and said Jane Doe can immediately receive her abortion, which she reportedly received on Wednesday. Doe’s saga is finally resolved, although there may be concerns of retaliation from a refugee center that allegedly already emotionally abused her while she was pregnant. Luckily, she can no longer be held prisoner until she gives birth by a government that claims its moral requirement to “protect life from conception” outweighs the constitutional rights of a refugee seeking sanctuary in what is supposed to be one of the freest countries on Earth.
But the next Jane Doe? You can expect the federal government to try again. And if they win, you can be certain that those “freedoms” will continue to shrink as long as the Trump administration remains in charge—all in the name of religious liberty.
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