Trump’s Federal Agencies Are the Greatest Threat to ‘Roe’

President Donald Trump's most powerful attorneys are arguing in Hargan v. Garza that the federal government has the right to unilaterally block access to abortions for undocumented minors in its custody. This sets up a direct attack on Roe’s legacy.

Activists protest against the nomination of Neil Gorsuch at the U.S. Supreme Court in D.C. on January 31, 2017. Lauryn Gutierrez / Rewire

Forty-five years after the Supreme Court recognized a fundamental right to an abortion in Roe v. Wade, reproductive rights advocates now face what might be the single greatest threat to that right: the Trump administration.

Within the first year of his presidency, President Donald Trump has managed to stack his cabinet with anti-choice ideologues. He’s released two separate executive orders targeting reproductive rights, including one that purports to create an entirely new division within Health and Human Services to back health-care providers that refuse to offer abortion and contraception services, or who have a moral or religious objection to treating LGBTQ patients. And his most powerful attorneys are arguing in the case of Hargan v. Garza that the federal government has the right to unilaterally block access to abortions for undocumented minors in its custody, setting up a direct attack on Roe’s legacy—and maybe even a direct challenge to the decision itself.

The Garza case brings to a tragic focus the real intention of the anti-choice activists both within and beyond the administration. Early last year, the Office of Refugee Resettlement (ORR) established a policy of prohibiting all federally funded shelters from “taking any action that facilitates an abortion without direction and approval from the Director of the ORR.” The policy effectively gives ORR unconstitutional veto power over a person’s right to choose to terminate their pregnancy. 

The policy directly disregards not just Roe, but the fundamental humanity of pregnant people. Since the time of its enactment, at least four pregnant minors have had to go to court and force the administration to recognize their right to an abortion. There will likely be more in the future.

Solicitor General Noel Francisco has argued on behalf of the administration that if these unaccompanied minors want an abortion, all they need to do is “self-deport” and go get one. The administration also argues it has a First Amendment right to disclose an unaccompanied minor’s abortion to reportedly abusive relatives. State attorneys general from Texas and elsewhere argue these minors don’t even qualify as full “people” under the law, but that their developing fetuses do. 

Those are not the only fringe legal arguments the administration and its allies are making. Francisco’s office has asked the Roberts Court to discipline attorneys from the American Civil Liberties Union for their actions in representing the undocumented minors. He has not cited a single legal authority to justify the disciplinary request. On Friday, the Roberts Court considered that request, along with the one by the administration to step in and vacate the lower court ruling that cleared the path for Doe, the first undocumented minor to sue for an abortion, to access one. It has not yet made a decision.

In its court filings, the Trump administration argues that the court of appeals was wrong to rule against its policy of denying those in its custody access to abortion care, because there is no legal duty for the administration to “facilitate” access to abortion. Additionally, the administration argues, because Doe already had an abortion, and because her attorneys helped her get this abortion, her legal claim is now moot and the administration should not be subject to the consequences of that prior order—even if there are other similar, documented cases of others being denied access to legal care. That would mean, among other things, that any other minor in ORR custody and seeking an abortion would have to sue to gain access to one, with that minor’s attorneys starting from legal “scratch” each time.

In other words, the administration wants the Supreme Court to void the legal pathway Doe’s case opened up for other undocumented minors in federal custody to access abortions they are entitled to under the law. And it wants the Court to do so in part to punish Doe’s attorneys—through fines, suspension of licenses, or whatever else the Court deemed necessary—for doing their job effectively.

Not a single career attorney in the Solicitor General’s Office signed onto the administration’s request. Maybe that is because the administration sees this case as so important that it wants only its top litigator handling it. Or, maybe it’s because those attorneys would rather not have their names associated with the legal arguments the administration is advancing.

Whatever the reason, the action is evidence of the administration’s intent on making abortion impossible to access in whatever ways it can, and regardless of the law. And it’s evidence of the Trump administration’s desire to use agency action—such as ORR’s policy—to change the law.

So far, the federal courts have blocked these efforts. But will the Gorsuch Court eventually bless the administration’s forced gestation and birth policies? As of Monday, we are still waiting to find out.