NICE TIME! Court Won't Let Anti-Abortion Nutjob Lock Up The Pregnant Teenage Girls
For the last few years, the Trump regime has been trying to force undocumented children to act as baby incubators. On Friday, a federal court found once again that this incredibly fucked up policy is unconstitutional.
In 2017, the director of the Department of Health and Human Services' Office of Refugee Resettlement (ORR) was an anti-abortion nutjob named Scott Lloyd. Lloyd is a right-wing lawyer with no background whatsoever in resettling or even working with refugees, so sure, let's have him head the Office of Refugee Resettlement. Lloyd hates abortion because he's still bitter he wasn't able to force an old girlfriend into carrying an unwanted pregnancy to term. As director at ORR, he instituted a policy of forced pregnancy for teenagers in ORR's care.
Unaccompanied minors are people under the age of 18 who either come to the US seeking asylum (which is legal!) or are undocumented. ORR processes tens of thousands of unaccompanied minors annually. In the 2018 fiscal year (the most recent year for which data is available), ORR processed nearly 50,000 unaccompanied minors. Every year, ORR ends up with several hundred pregnant unaccompanied minors in its custody. In 2017 (the only year we have data for), there is documentation of 18 unaccompanied minors in custody who requested an abortion.
Scott Lloyd, ew.
While he was heading up ORR, Lloyd took it upon himself to decide that ORR would no longer "facilitate" abortions and therefore would prevent girls from going to their doctor's appointments and court hearings, but instead would take them to forced-birthing houses to hear propaganda and get ultrasounds performed against their will. And Lloyd, the fucking director of the ORR, would go to these young girls and personally try to convince them not to have abortions.
Here's how the DC Circuit described the effect of Lloyd's policy:
The policy functions as an across-the-board ban on access to abortion. It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held—including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion.
And here's what one of the girls challenging the policy has been through:
The claim of one minor in this case brings the policy's breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.
Imagine being a pregnant teenager in a foreign country. Maybe you're pregnant because you were raped. You don't speak the language. You were arrested and put into a "shelter" with other teenagers. Violence and sexual assault are common. You tell the people who are supposed to ensure you have medical care that you want to have an abortion. But instead of taking you to see a doctor, a high-ranking government official comes and lectures you and tries to pressure you into having a baby you aren't prepared to take care of.
Scott Lloyd was fired from the ORR after failing to keep tabs on whose children they were kidnapping, but his legacy of trying to force pregnancy on teenagers remains. The ACLU has been trying to stop this bullshit since 2017, but controlling other people's bodies is so important to the Trump regime that they've been doing their best to prevent these teens from getting the medical care they need.
Litigation around this issue has been ongoing since the inception of Lloyd's policy, or at least since it became known. In March 2018, the District Court allowed the case to proceed as a class action and issued a preliminary injunction, meaning ORR had to allow minors in its care to receive abortion treatment. On Friday, the DC Circuit Court of Appeals weighed in, upholding the bulk of the District Court's order.
How is this court order different from all other court orders? It smacks around Brett Kavanaugh.
The DC Circuit's 81-page opinion is great not just because it comes out on the right side of the issue and eviscerates the government's ridiculous arguments; it's also great because the court once again destroyed ridiculous arguments made by then-DC Circuit Judge Brett Kavanaugh, who tried to block a 17-year-old minor who had been raped from obtaining an abortion. (That decision was quickly overturned by the full DC Circuit, sitting en banc.)
As noted by Slate:
Justice Brett Kavanaugh's old court rebuked his anti-abortion jurisprudence on Friday, compelling the Trump administration to allow undocumented minors in federal custody to terminate their pregnancies. The appeals court's ruling rejects the administration's blanket ban on abortion access for these minors as a violation of their constitutional right to choose. It should guarantee all undocumented minors control over their bodies, a right the federal government has spent more than two years seeking to revoke.
But there's a dick.
In a dissent, Senior Judge Silberman echoed Kavanaugh's earlier sexist whining, arguing that impoverished young girls going through hell to try to get to the US were going to come here for "abortion tourism." Judge Silberman argued that the class shouldn't be certified because some of the other class members (children who choose not to terminate their pregnancies) might oppose abortion. We wonder if he would also oppose class cert in a voting rights case because Nazis who might be class members hate black people having the right to vote.
At one point in his dissent, Judge Silberman asks, "Can one imagine how terrified pregnant alien minors would be if questioned about their views on the Government's policy?" Well, Your Honor, probably about as terrified as they were when creepy Scott Lloyd interrogated and lectured them about terminating their pregnancies. He also states that the court "must assume the US Government would be acting in good faith," which is an absolutely astonishing comment, given the underlying facts in this case. Oh, and he calls the ACLU lawyers "political antagonists."
Judge Silberman ends his dissent with this:
I am afraid the majority's refusal to consider narrowing the scope of the district court's order justifies Judge Kavanaugh's accusation that the court is endorsing abortion on demand – at least as far as the federal Government is concerned.
The dick is slapped.
The majority fully destroyed each of Silberman's arguments. The best part of the opinion came when they addressed the government's "abortion tourism" nonsense.
As something of a last resort, the government asserts that upholding the district court's decision "would constitutionally mandate what would amount to abortion tourism, where minors who cannot obtain abortions lawfully in their country of nationality demand abortion services at our border or upon illegal entry to our country." The government's supposition that the possibility of a lawful abortion would alone cause unaccompanied minors to attempt the journey here is unsupported . . . .
[E]ven if the availability of constitutional rights in this country affords an inducement to attempt that journey, we are unable to accept the government's argument. It is difficult to imagine the government arguing, say, that unaccompanied minors should be denied the right to freely worship while in ORR custody because those denied religious liberty in their native countries might otherwise be enticed to come to the United States. And correspondingly, we cannot accept the suggestion that minors in ORR custody should be compelled to carry pregnancies to term against their wishes—even in cases of rape—so that others will be deterred from desiring to come here.
To be sure, the "right to an abortion" is viewed to have a "controversial nature," as to which people "sincerely hold directly opposing views." But the Supreme Court "has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose." Id. at 921. And we are not free to dilute a constitutional right recognized by controlling Supreme Court precedent—a right the government affirmatively assumes unaccompanied minors here have—so that others will be dissuaded from seeking a better life in this country.
(Internal citations omitted.)
For now, this opinion means that unaccompanied minors in government custody should be able to access their constitutional right to an abortion. (Yes, undocumented immigrants have constitutional rights, too.)
What about Kegs McGee?
The government will probably try to get the Supreme Court to take up the case. If SCOTUS takes the case, it will probably end up with a tie. Because accused attempted rapist Kegs McGee heard the case while he was on the DC Circuit, he should have to recuse himself, which would likely leave SCOTUS with a 4-4 opinion. A tied Supreme Court would leave the DC Circuit opinion intact.
Or at least, that's the hope. After all, it is 2019 and nothing really matters anyone.
This decision is a positive development in an utter shitshow of a situation that was entirely created by the evil, inept assholes currently running the Executive Branch of our government.
Let's not forget that the same government that's trying to force young girls into being baby incubators BECAUSE LIFE also recently threw a teenage mother and her sick, premature baby into a concentration camp, rather than taking them to a hospital, where they belonged.
This is all definitely totally about protecting innocent fetuses and not at all about controlling what girls, women, and pregnant people can do with their bodies. For sure.
Burn it to the ground.
Full disclosure: I used to be the Legal Director for the ACLU of West Virginia (but I wasn't involved the unaccompanied minor litigation).
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