Homenews

The Trump administration just made its most Orwellian attack on abortion

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The United States government is holding a woman prisoner to keep her from obtaining an abortion.

Let that fact sink in for a moment. The core issue at the heart of Garza v. Hargan is whether the coercive power of the state can be used to hold someone prisoner to keep them from obtaining an abortion.

It’s important to remember this fact — again, that the most powerful nation on the planet has locked up a woman to stop her from terminating her pregnancy — because the Trump administration wants a panel of three federal judges to believe that Garza is about something else. They want you to think this is a case about whether the Constitution requires the government to  “affirmatively facilitate” an “elective abortion.” But this isn’t just a bad legal argument, it’s a bad factual argument. It is an Orwellian argument.

The case revolves around a 17-year-old undocumented immigrant, referred to by the pseudonym “J.D.,” who is currently being held in a government facility. Pursuant to federal law, unaccompanied minors are held in a facility run by the Department of Health and Human Services, which holds them there until a relative in the United States steps forward as the minor’s “sponsor,” until the minor agrees to voluntarily depart the country, or until the minor is deported.

According to the limited record in this case, the government rejected two of J.D.’s family members who offered themselves as sponsors (although it is unclear why). J.D., meanwhile, does not want to voluntarily depart — her attorney says that she may have a lawful reason to remain in the United States and would not want to give up her right to press that case.

Meanwhile, looming over this case is the possibility that J.D. was abused — perhaps sexually — in her home country. Though, again, the record is quite limited.

Everything in this case has happened very quickly. A federal trial court ordered the government to let J.D. obtain an abortion on Wednesday. An appeals court temporarily blocked that ruling on Thursday. It’s now Friday, and a panel of three appellate judges are hearing the case. J.D., meanwhile, is 15 weeks pregnant. Time is running out before she will no longer be able to obtain an abortion.

The case turns on the tension between two lines of Supreme Court precedents. One line rests on Planned Parenthood v. Casey‘s holding 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.” The second line holds that, while the government cannot place substantial obstacles in the way of abortion, it also isn’t required to affirmatively make it easier to have an abortion — such as by funding abortion directly.

The crux of the Trump administration’s argument is that it would be facilitating J.D.’s abortion if it allowed her to have one. Government officials or contractors would have 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.

But, of course, there’s a glaring problem with this argument. The only reason why J.D. cannot simply walk into an abortion clinic herself is that she is being held prisoner by the government. If that doesn’t constitute a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” then it’s hard to imagine that anything does.

In response to this reality, the Justice Department told the three judges hearing this case that J.D. could always agree to voluntarily leave the country — an argument that effectively forces her to choose between giving up her right to press her immigration case and carrying her pregnancy to term against her will. Meanwhile, there’s no guarantee that she would even be able to obtain an abortion in her home nation.

The outcome of the case — or, at least, the outcome of the panel’s vote — is likely to hinge on Judge Brett Kavanaugh, a conservative George W. Bush appointee who is widely viewed as a possible Supreme Court nominee in a Republican administration. Judge Karen Henderson’s questions at oral argument suggested that she was a likely vote for the government. Meanwhile, Judge Patricia Millett appeared highly skeptical of the government’s arguments.

Kavanaugh, meanwhile, seemed eager to make this case go away. He asked again and again about whether a sponsor could be found to take custody of J.D., effectively mooting the case in the process.

While DOJ’s attorney was at the podium, Kavanaugh seemed quite skeptical of the government’s arguments. At one point, he pointed out the absurdity that, if J.D. had committed a crime and was held in a federal prison, she would have the right to an abortion. But, under the government’s argument, she doesn’t have that right while she is held in a non-criminal facility. At another point, he suggested that the government’s argument would allow a state to ban all abortions for undocumented immigrants, on the theory that the immigrant could always return to her home country.

Yet Kavanaugh brought up the question of whether a sponsor could be found so often it seemed like an obsession. When the ACLU attorney representing J.D. told him that it could take months to complete the sponsorship process, Kavanaugh suggested that maybe the court should conduct some additional fact-finding to see if that is true. At another point, he asked how long the court could potentially delay the case.

J.D. is now 15 weeks pregnant. Texas bans abortions at 20 weeks.

Kavanaugh risks effectively denying J.D. her abortion through delay. By drawing out the proceeding, he could potentially extend it until she can no longer obtain a legal abortion. And, even if the appeals court rules quickly enough to allow J.D. to obtain an abortion, the Trump administration is likely to appeal a loss to the Supreme Court, which could add more delays.

J.D.’s case could ultimately turn on whether a potential Supreme Court nominee — a man who has a clear interest in not having an abortion ruling of any kind on his record — decides to string out the case until something happens to make it go away. That “something” could be a sponsor, or it could be simply the passage of enough time that J.D. is no longer able to obtain a legal abortion and is instead forced to give birth.

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