Apprehended near the border city of Brownsville after her illegal crossing, Jane was held in a federally funded shelter used to detain illegal immigrants. As a would-be refugee, her case fell within the jurisdiction of the Office of Refugee Resettlement (ORR), a unit within the federal Department of Health and Human Services (HHS).
Scott Lloyd, the Trump-appointed head of the office, brings to the position no training in health or human services but years of experience as an anti-abortion zealot with the Knights of Columbus, the Catholic charitable and humanitarian organization, and a lawyer for a "crisis pregnancy center" in Fort Royal, Va. Lloyd has eagerly taken to enforcing the policy adopted in May that prohibits immigration detention shelters from taking "any action that facilitates an abortion without direction and approval" from him as ORR director.
Supreme Court decisions extending from Roe v. Wade in 1973 to Whole Women's Health Center in 2015 protect a woman's right to choose an abortion before fetal viability and prohibit the government from imposing any "undue burden" on the woman's exercise of that right. Lock-and-key for a woman held in detention is more than a burden but tantamount to a prohibition.
Jane's story ends happily for her with a lopsided federal appeals court ruling [Oct. 24] that ordered the government to stop blocking her from going to a medical clinic for the abortion that she had chosen to undergo and to which she had a constitutional right. Jane underwent the procedure the next day as the government. The 6-3 decision by the U.S. Court of Appeals for the District of Columbia Circuit in Garza v. Hargan reversed the earlier, divided ruling by a three-judge panel that had allowed the government to continue to block the abortion even as the risks of the procedure increased with each passing day.
Jane underwent the procedure the day after the D.C. Circuit's en banc decision and, in a later interview with VICE News, reaffirmed that she felt incapable at age 17 of caring for a child. "I don't feel sure of having a child," she told interviewer Antonia Hylton with her back to the camera and her name still withheld.
The Trump administration policy directive asserts a government interest in protecting human life, but the government's overriding interest seemingly should be enforcing the law of the land — abortion rights — whatever the political views of what the British like to call "the government of the day." Lloyd's anti-abortion views are a matter of public record, as BuzzFeed News unearthed in a story published as the controversy swirled.
Writing for the Christian website Ethika Politika in 2011, Lloyd urged state legislators to enact laws requiring a woman to notify the putative father of her decision to abort and to obtain his consent even though Supreme Court decisions clearly prohibit any veto power for a man over the woman's decision. Later, Lloyd recommended that women obtaining government-funded birth control sign a contract promising not to undergo an abortion if the contraceptive failed.
Lloyd's work with Knights of Columbus entailed advocacy for protecting religious and ethnic minorities victimized by ISIS, the self-styled Islamic State. That experience left him completely insensitive, it appears, to Jane's plight, as a pregnant teenager who had witnessed her parents beat her older sister after having discovered her pregnancy.
Jane arrived in the United States as "a child . . . alone in a foreign land," as Judge Patricia Millett explained in what amounted to the majority opinion for the six Democratic-appointed judges in the D.C. Circuit majority. Lloyd's version of helping her consisted of allowing her to be taken not to a clinic but to a so-called crisis pregnancy center, where a counselor tried to dissuade her from the planned abortion. "They took me to the clinic," Jane told her interviewer, "and they prayed for me."
Significantly, Jane's legal team from the American Civil Liberties Union (ACLU) had already convinced a state court judge in Texas that she was mature enough to make the decision to undergo the abortion. The Justice Department attorneys representing HHS in the case stopped short of arguing that Jane had no constitutional right to abortion, merely that the government did not have to "facilitate" the procedure. Millett aptly accused the government of "verbal alchemy" by attempting to "categorically blockade" the abortion.
Writing for the three Republican-appointed dissenters, Judge Brett Kavanaugh said the decision amounted to "a radical expansion of the Supreme Court's abortion jurisprudence." Separately, Judge Karen Lecroft Henderson argued in a sole dissent that Jane in fact had no constitutional right to abortion since, technically, she had never "entered" the United States. That issue remains open since Jane's case was litigated, under tight deadlines, solely as an individual case. The ACLU lawyers are pursuing a broader class action aimed at invalidating the refugee office's "no facilitating" directive en toto.
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