The connection between Hobby Lobby and the Jane Doe abortion case.

Forget the Law—the Federal Government Is Making a Religious Argument to Deny a Woman an Abortion

Forget the Law—the Federal Government Is Making a Religious Argument to Deny a Woman an Abortion

The law, lawyers, and the court.
Oct. 24 2017 1:08 PM

The Trump Administration Gets Religion

In denying an undocumented immigrant an abortion, the federal government is making a theological argument rather than a legal one.

Hobby Lobby
Sister Caroline attends a rally with other supporters of religious freedom to praise the Supreme Court decision in Hobby Lobbyon June 30, 2014, in Chicago.

Scott Olson/Getty Images

Jane Doe is the name the courts have given to an undocumented 17-year-old girl who is almost 16 weeks pregnant and has been trying to get an abortion since September. She fled her home country in Central America to escape horrible physical abuse. She is being held in a government-funded shelter in South Texas, and she has a court-appointed guardian willing to transport her for that purpose. No government money will pay for the procedure.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Despite the fact that Doe has been granted a judicial bypass by the Texas courts, and despite a federal court having ordered that she be allowed to have the procedure, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit refused to order the Department of Health and Human Services to allow her to have the procedure. In four weeks she will be too far along in her pregnancy to terminate in Texas, yet the federal appeals court told HHS last week that they now have 11 days to find a sponsor to take charge of Jane Doe. That is a process that can take months. This week, her lawyers asked the full D.C. Circuit to revisit that decision.

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Why has this sequence of events been allowed to happen? Because the federal government now believes it has a right to promulgate its own quasi-religious viewpoint and—because the government is more powerful than an undocumented teenage girl—the state’s “conscience” negates any choices she makes. The government’s arguments systematically obliterate any notion of Jane Doe’s individual rights, and re-create the law to subordinate her choices to government power.

In defending its inchoate and unconstitutional maneuvering to avoid “facilitating” a lawful abortion for which it pays no fees, the Trump administration argues it is respecting “fetal life.” Simultaneously, to shrink Jane Doe’s actual interests in not carrying an unwanted pregnancy to term, the administration has painstakingly dismissed her as a non-citizen, a minor, and of course, a female, and thus in need of adult supervision. And in this way the road to the perfect dehumanization of humans is achieved. That road was paved in the Supreme Court’s Hobby Lobby ruling, in which the justices affirmed similar arguments about the complex spiritual lives of for-profit corporations.

Many thoughtful commentators have already observed that the Office of Refugee Resettlement, which has control over Jane Doe, is currently being run by an anti-abortion activist: E. Scott Lloyd, appointed by Donald Trump, has virtually no background in resettling refugees. He is, however, a long-standing opponent of abortion and birth control and has written passionately on the subject. He has repeatedly contacted pregnant young women in government shelters and forced them to receive “counseling.” In the case of Jane Doe, he demanded that her mother be called and be told about the pregnancy. He has even barred her from exercising with other inmates of the shelter in which she resides. Lloyd has told his staff that “the unborn child is a child [in] our care” and has thus taken the position that federal shelters may no longer allow young women to terminate their pregnancies. HuffPost reports that, per Amnesty International, an estimated “60 percent of women and girls experience sexual violence en route to the U.S.”

With every day that passes, Jane Doe inches closer to the 20-week deadline, and abortion becomes more medically complicated for her. The Trump administration glibly argued in court Friday that she can “self-deport” to her home country before conceding that abortion is illegal there. Alternatively, they want her released to a sponsor so she is not in government custody. Her lawyers are asking the federal government to simply get out of the way and allow her access to a procedure that is constitutionally protected. The government says it will not. There is a reason The Handmaid’s Tale is repeatedly invoked to describe the situation.

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Don’t let the name “Jane Doe” take your attention off the fact that she is a real person who is suffering a real injury at the hands of the U.S. government. There are two competing interests here: one is Jane Doe’s, who may have been sexually abused in her home country (the record is unclear), but who has been deemed fit under Texas law to terminate her pregnancy. The other belongs to a federal agency that claims the federal government, which will not pay for her abortion, will nevertheless be forced to “facilitate” it because they must offer her post-procedure medical support. That’s a very sweeping view of facilitation, but it’s of a piece with claims we’ve been hearing in courts from religious objectors for years.

This is how the Department of Justice’s lawyers diminish Jane Doe’s interests into nothingness. “Ms. Doe arrived here illegally and refuses to leave,” the government wrote in a brief. “She has put herself to a difficult choice. And if the federal government has to approve, assist, and be complicit in Ms. Doe’s abortion, the government’s interest in avoiding that facilitation outweighs any alleged ‘burden’ she has created for herself.”

So broad is this new prohibition on the state “facilitating” an abortion that it swallows all of Jane Doe’s actual affirmative rights. At oral arguments last week, Trump’s lawyers refused to take a position on whether undocumented people even have constitutional rights (they do) or whether refusing to allow a woman to terminate her own pregnancy constitutes an “undue burden” on the right to choose (it does).

The government’s claim about not “facilitating” abortion is the same argument for-profit businesses made in the Hobby Lobby case to privilege their own interests in denying women contraceptive care. It’s the argument advanced when religious entities argued that the mere act of submitting a government form is the equivalent of “triggering” an abortion. It’s also the argument that suggests that despite the Hyde Amendment, which prevents government funding for abortion, any penny given to Planned Parenthood still facilitates a sin. It’s an argument that holds that no moral agent—not a woman, not a doctor, not a court—can ever become a circuit breaker for the facilitation of sinful conduct.

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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.

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.

This is a worldview that makes it necessary to devalue the agency of Jane Doe and every single one of the moral decision-makers who acted independently in this case. They are all moral wallpaper to the state. In claiming that any abortion is a greater burden that accrues solely to the government, the administration leaves Jane Doe with no agency of her own and no choice at all, unless it’s the choice to carry to term.

As Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, put it in an email, this is a government that respects the autonomy of women only if they make the theological decision favored by the government. “For the Trump administration, what Jane needs only matters if it lines up with their extreme anti-abortion agenda,” Amiri writes. “If she wanted to remain pregnant or go to a fake clinic—they’d be all too happy to ‘respect’ her decision.”

Judge Patricia Millet, dissenting forcefully from the D.C. Circuit’s hodgepodge majority opinion—a decision that tries to decouple the government and abortion by adding yet another actor (a sponsor) into the chain—makes precisely this point:

[D]istrust of whether J.D. has made an informed-enough-for-the-federal-government decision is a one-way street. It applies only to the decision to end the pregnancy. Had she chosen to continue the pregnancy, that judgment would have been fully respected and supported by the federal government without any further proceedings. If J.D. is mature enough to decide to continue the pregnancy, then she is mature enough to decide not to continue it as well (as Texas law agrees).

Imagine for a moment living in a country in which the seemingly unbounded “right” not to “facilitate” an abortion deemed sinful by a formless government bureau can swallow outright the constitutionally protected reproductive rights of an actual living person. No need to try. You already live there.

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