Quinta Jurecic, deputy managing editor for the Lawfare blog, is currently serving as a member of The Post’s editorial board.
Jane Poe is the pseudonym of a 17-year-old girl who crossed the border from Mexico into the United States this fall. We don't know her home country or her real name, neither of which have been made public. What we do know is that she discovered she was pregnant while in a government-funded shelter for undocumented minors, and that the pregnancy was the result of rape. She asked for an abortion and said she would hurt herself if she didn't receive one. The Office of Refugee Resettlement (ORR), which oversaw Poe's shelter, refused to allow it.
Last month, Poe finally was able to get an abortion after an order by a federal judge. She is one of three teenage girls whose abortions the Trump administration has fought in court to block. Each time, it has failed, but there will surely be others in Poe's position: teenagers exposed to terrible violence who want an abortion but have roadblocks thrown in their path. Poe told officials that her relatives threatened to beat her if she ended the pregnancy that resulted from her assault; the first girl whose case the government litigated left her home country after being abused by her mother. When these girls crossed the border, they found more abuse in the form of a policy that sought to leverage government power against them without the constraint of law. Even now, ORR is fighting in court to disclose Poe's abortion to the same uncle she said promised to hurt her if she received it — and who could end up as Poe's government-approved caretaker in the United States.
Under E. Scott Lloyd, the antiabortion activist appointed by President Trump to lead the agency, ORR has prohibited pregnant undocumented minors from attending counseling at anywhere other than "life-affirming" crisis pregnancy centers. In fact, Lloyd requires federally funded shelters to request his personal permission before "facilitating" any access to abortion.
What's most striking about Lloyd's memo refusing Poe's procedure is the utter lack of legal analysis. As a person within the United States, Poe had a constitutional right to an abortion. But Lloyd focused instead on his own religious convictions. "To decline to assist in an abortion here is to decline to participate in violence against an innocent life," he wrote. "Moral and criminal responsibility for the pregnancy lies with [Poe's] attacker, and no one else."
Perhaps this explains why the government's arguments before the courts have been so flimsy. The Justice Department acknowledges — though Lloyd, in a personal court filing, does not — that Roe v. Wade grants undocumented girls in ORR's care the right to an abortion. It just argues that ORR has no obligation to "facilitate" that abortion. Yet in each case so far, private organizations stand ready to arrange and pay for the procedure — meaning that the "facilitation" described by the Justice Department more or less involves unlocking the shelter door. Under the Supreme Court's 1992 opinion in Planned Parenthood v. Casey, the government cannot place an "undue burden" on a woman's access to reproductive health care.
Casey, incidentally, upheld a Pennsylvania state law requiring minors to obtain the consent of at least one parent before receiving an abortion. The state in which Poe is being held has no such law, but as the American Civil Liberties Union notes in its court filings on her behalf, Lloyd's policy essentially places ORR in the position of a parent empowered to give that approval. The comparison is not entirely a metaphor: Lloyd reportedly views himself as a "foster father" to those in ORR's custody.
Lloyd's memo displays this same confusion between ORR's responsibilities as a government agency and Lloyd's imagined role as a private guardian. For the most part, he writes as if he is bound not by laws constraining government action but only by his conscience. In this light, his refusal to honor a constitutional right echoes legal battles by Hobby Lobby and the Little Sisters of the Poor — both private organizations with a religious opposition to abortion — to seek legal exemptions from requirements to provide contraceptive health-care coverage to their employees.
Like Hobby Lobby, Lloyd seeks to avoid what he sees as complicity in abortion. Unlike Hobby Lobby, his role as the director of a government agency means he has an obligation to the contrary.
Supreme Court Justice Antonin Scalia, an observant Catholic, once remarked that if he came to believe that Catholic doctrine held the death penalty to be immoral, he would resign from the bench: He felt he could not have squared his belief in the constitutionality of capital punishment with the requirements of his religion. Likewise, a person who feels he can't compromise on his belief of the evils of abortion might not be suited to run an agency charged with the care of undocumented girls who might seek to end pregnancies. There's a reason our laws treat government actors differently than conscientious citizens.
And in the end, that’s why Lloyd’s assertion in these cases is so troubling: The coupling of a government official’s power alongside a private individual’s relative lack of legal restraint makes for a disturbing combination — especially when that power is wielded over some of the most vulnerable among us, teenagers far from home.
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