The Trump Administration's Orwellian Plan to Gut Roe v. Wade

By Ian Millhiser, ThinkProgress

18 December 17

The Supreme Court may soon weigh in on whether the government can physically detain people to prevent them from having an abortion.

wo women, known by the pseudonyms “Jane Roe” and “Jane Poe,” are being held at federal facilities for undocumented minors who enter the country without an adult guardian. They are pregnant and want abortions. Yet they cannot obtain one because the Trump administration will not let them leave the facility to obtain the medical care they seek.

If this scenario sounds familiar, it should. Last October, the Trump administration made a similar attempt to hold a woman prisoner to prevent her from terminating her pregnancy. The woman eventually received her abortion, but only after she obtained a federal court order.

But that court order may have only taken effect because of a tactical error by Trump administration lawyers, who delayed seeking review in the Supreme Court until after the woman already obtained her abortion. These lawyers are unlikely to repeat this error now that Roe and Poe seek a similar court order.

That means that, as soon as this week, the Supreme Court is likely to weigh in on whether the federal government can physically detain a woman to prevent her from obtaining an abortion.

Both the October litigation and Roe and Poe’s new requests to obtain an abortion arise under a larger lawsuit, known as Garza v. Hargan, that challenges the Trump administration’s broad policy of preventing certain undocumented minors from obtaining abortions.

There are factual distinctions between Roe and Poe’s requests for a temporary order allowing them to obtain an abortion and the facts presented to the courts in October. Roe, the Trump administration claims in a document filed in federal district court, may be released to a third party that allows family members and other individuals to “sponsor” unaccompanied minors — a circumstance that would remove Roe from the government facility.

Meanwhile, the administration claims that Poe initially chose not to have an abortion, and changed her mind relatively late in her pregnancy. Thus, if Poe is unable to obtain an abortion because her pregnancy is too far along, the Trump administration claims that it is her own fault.

The core legal issue in Garza, however, flows from the Trump administration’s rather Orwellian reading of the Supreme Court’s abortion precedents.

The Supreme Court held in Planned Parenthood v. Casey that the government cannot enforce a policy that has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” If physically detaining a woman and preventing her from accessing an abortion facility does not qualify as a “substantial obstacle,” it is hard to imagine that anything does.

Nevertheless, the Trump administration relies on another line of cases which hold that the government is not required to actively facilitate abortions — this line of cases are the reason why Medicaid and other government-run health programs are not obligated to cover abortion care.

As the administration wrote during the October litigation, government officials or contractors would need to “devote time and staff towards maintaining appropriate custody over Ms. Doe during the time she would be away from the shelter,” among other things, for her to receive an abortion. Taking such actions, the administration claims, would make these officials “complicit” in an abortion.

It’s a remarkable claim. The Trump administration, having engineered a situation where certain women are unable to travel to an abortion clinic (or really anywhere at all) without the government’s compliance, now claims the government would be morally responsible for an abortion if it does not leave the draconian conditions it created in place.

Even Judge Brett Kavanaugh, a conservative George W. Bush appointee who voted against the woman seeking an abortion in the October litigation, appeared troubled by the Trump administration’s claim. As Kavanaugh pointed out during an October oral argument, the government cannot prevent people held in federal prisons from receiving an abortion. So the Trump administration’s rule would effectively prevent Roe and Poe from getting an abortion because they have not committed a crime.

Nevertheless, the Trump administration argues that it is fine to treat undocumented minors worse than convicted criminals because women like Roe and Poe have “the power to withdraw her application for admission and may depart the United States to return to her home country.”

Garza, in other words, cuts at the heart of the right to choose an abortion. It could define what constitutes a “substantial obstacle” under Casey so narrowly as to render the right to choose meaningless. It could force women to choose between having an abortion and other basic rights, such as the right to due process. And it could potentially introduce a new rule allowing government officials to refuse to do their job if they think it would make them “complicit” in activities they object to — a result that would make Kim Davis, the county clerk who refused to issue marriage licenses, race to take advantage of this new right.

It is far from clear how the Supreme Court will rule when this case reaches its desk. There are almost certainly four votes on the Supreme Court to uphold nearly any restriction on abortion — which means that Garza, like so many other cases, is likely to come down to Justice Anthony Kennedy. Kennedy is a conservative who typically (though not always) opposes abortion rights. He’s also shown considerable sympathy with religious objectors who claim that following the law would make them “complicit” in a sin.