In the final months of 2017, the Trump administration tried and failed to block three undocumented teenagers from getting abortions while in the custody of the Office of Refugee Resettlement. In each case, the young women sought access to the procedure only to be refused by the agency, which cited a policy issued in March barring “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangements,” unless approved by agency director Scott Lloyd.
That approval would likely never come, even in cases of rape, because, according to a letter from Lloyd, to allow minors in ORR custody to terminate their pregnancies would be the equivalent of “being asked to participate in killing a human being in our care.”
The argument that the ORR had such authority did not hold up in court, and a federal judge issued a temporary restraining order that allowed the women to end their pregnancies. What followed from the administration seemed like retribution. Just days before the new year, the DOJ argued to the same judge that the ORR had a right to disclose the abortion of one of the unaccompanied minors, a 17-year-old identified as Jane Poe, to doctors and potential sponsors, including family members who had threatened to beat her if she terminated her pregnancy. The judge once again ruled against the DOJ, extending the restraining order and gagging the state.
These were essential but ultimately palliative victories. The ORR policy remains in place as the American Civil Liberties Union tries to file a class action lawsuit to reverse it, and it’s unclear what will happen next.
The experiences of these young women are about as blunt an articulation of this administration’s cruel logic as you can get, and an alarming glimpse at what state intervention in a healthcare decision looks like when anti-abortion ideologues are empowered at all levels of government. Which is precisely where we are right now.
This administration’s framework—that an immigration official could act as a gatekeeper to healthcare or that an early draft of the tax bill could include a provision that subtly established fetal personhood—is in some ways a perverse mirror of what reproductive justice advocates have been saying for decades: namely, that you can’t isolate reproductive freedom as a single issue that happens inside an abortion clinic. That it touches everything.
In the last decade or so, the pregnant person has been reimagined in the conservative narrative around abortion. As activists realized that condemning women as murderers and threatening punishment was bad optics and that the broad strokes of the law were not entirely on their side, the mainstream anti-abortion movement shifted to softer language about women as “victims” of abortion and began focusing on legal concepts about the rights of a fetus, dry regulatory language about the square footage of recovery rooms, and marginal science about pain in order to accomplish their political goals.
All of this has amounted to layers of political abstraction: Roe v. Wade is still intact, still establishes a constitutional right to an abortion, but women, particularly women of color and low-income women, are left to parse what that actually means if they can’t afford the procedure, get themselves to a clinic six hours away, or take off work for the multiple visits some states now require.
In the recent ORR cases, we have the same practical barrier—a right denied by the circumstance of structural inequality—but the context of state custody is specific, more direct. The government literally tried to restrict the movement of these young women to keep them out of the clinic, as Judge Tanya S. Chutkin noted in her decision:
If defendants are not immediately restrained from prohibiting shelter staff from transporting [Jane Roe] and [Jane Poe] to abortion facilities or otherwise interfering with or obstructing their access to an abortion, [Roe] and [Poe] will both suffer irreparable injury in the form of, at a minimum, increased risk to their health, and perhaps the permanent inability to obtain a desired abortion to which they are legally entitled.
The hand that holds women back doesn’t always show itself in this kind of daylight. The government bringing its full weight to bear on three teenagers seeking a basic medical procedure is a bit of mask slippage and an honest reflection of where the United States is heading.
“There’s an escalation of everything that is about white supremacy and that is about male supremacy,” Lynn Paltrow, executive director of the National Advocates for Pregnant Women, tells me. “There is no question that it is more explicit and more destructive than we have seen in our lifetime.”
Donald Trump is a poor actor when it comes to mimicking anti-abortion fervor or even getting the talking points right, but he has nevertheless made good on many of his campaign promises to the anti-abortion movement. He nominated a conservative justice in the model of Antonin Scalia to the Supreme Court and will likely get a shot at another seat before his term ends. He has placed anti-abortion ideologues in the Office of Refugee Resettlement, the Department of Health and Human Services, on various lower court benches, and in the office of the vice president.
The result is that this administration sees abortion everywhere and acts accordingly. “The anti-women’s health movement has never been shy about taking on these issues anywhere they can,” Amy Friedrich-Karnik, senior federal policy adviser at the Center for Reproductive Rights, tells me. “We’ve seen that at the state level in the last several years, and now doubled down at the federal level.”
Republicans are going after “not just abortion, but also access to contraception,” Friedrich-Karnik says. “You see them going after the no-copay guaranteed coverage for contraception and trying to dismantle that under the guise of religious liberty. You see what’s happening with the office of Refugee Resettlement. You see Congress is emboldened. You saw the ‘unborn child’ language in [a previous version] of the tax plan. You saw, for the first time in the House, a hearing on a bill that would ban abortion as soon as a heartbeat is detected.”
What we are facing, she says, is an administration that is going after “women’s autonomy and women’s rights however and wherever they can.”
Earlier this week, the American Congress of Obstetricians and Gynecologists released a position paper calling for the decriminalization of self-induced abortion. This is a long-held position among many reproductive health advocates, but the timing feels heavy, pointing us ominously to a past in which the procedure was illegal and so often performed illicitly, a present in which women have been prosecuted and imprisoned for attempting—or being suspected of attempting—to self-induce an abortion, and a future that may see more of the same.
“History tells us restrictive or punitive measures do not end abortion or reduce unintended pregnancy,” Daniel Grossman, a physician and lead author of the position paper, said in a statement. “Many physicians can still recall a time before Roe v. Wade when thousands of women died each year from attempting to self-induce abortion. Historical and contemporary data also supports the understanding that these barriers increase instances of women resorting to unsafe means to end an unwanted pregnancy, including self-inflicted abdominal and bodily trauma and reliance on unqualified abortion providers.”
A lot of the activism and policy proposals right now seem to have this kind of weight: a focus on damage control, harm reduction, bracing for the long fight.
“We know that banning abortion doesn’t work,” Paltrow says. Women still had abortions before Roe v. Wade, but “many more died, many more lost their capacity for reproduction. Much more horror and suffering occurred.”
According to the Guttmacher Institute, estimates about the number of illegal abortions performed in the 1950s and 1960s range from 200,000 to 1.2 million each year. There were also clear disparities faced by poor women and women of color, who were disproportionately likely to attempt self-induction.
But with the rise of medication abortion, increasingly being used at home in places where abortion is criminalized, the fallout of restricted access may look different now than it did in the 1960s. Rather than returning to the era of the coat hanger abortion, the threat of this kind of prosecution for attempting to have an abortion outside of a clinic context may be the more pressing threat. The same could be said for the consequences of forcing women to carry pregnancies to term when they are not ready or able to support a family, particularly as congressional Republicans may be gearing up to slash our already threadbare safety net.
“At a moment when we are looking at a tax bill that is part of a very deliberate step by step strategy to end Social Security, to end Medicaid, to end food stamps—all of those things cost lives, devalue life,” Paltrow says. “But you can create the illusion that you are for life by trying to control women and prevent them having abortions. It’s the perfect distraction.”
And all the while, this administration will continue its intersectional approach to eroding women’s bodily autonomy, whether at the site of immigrant detention centers or women in states with growing clinic deserts. The extreme right has managed to learn a lesson about reproductive freedom that the Democratic Party still hasn’t grasped: It’s bigger than just the clinic, bigger than the Supreme Court. Now they’ve turned that insight into a weapon.