The Trump administration just lost a big abortion battle, but they could win a much bigger war

"Jane Doe" got her abortion, but her case could still wind up before a right-wing Supreme Court.

CREDIT: AP Photo/Carolyn Kaster. Graphic design by Diana Ofosu
CREDIT: AP Photo/Carolyn Kaster. Graphic design by Diana Ofosu

“Jane Doe,” an undocumented immigrant that the Trump administration literally held prisoner in an effort to keep her from terminating her pregnancy, finally had an abortion on Wednesday after weeks of delays. It took a court order from the full United States Court of Appeals for the District of Columbia Circuit, which is widely viewed as the second-most powerful court in the nation, to get her that abortion.

Doe is held in a facility for unaccompanied minors who arrive in the United States. Although the Supreme Court held in Planned Parenthood v. Casey 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 Trump administration refused to let Doe leave the facility to obtain abortion care. Moreover, as Doe’s attorneys at the ACLU explained in her legal complaint, the Trump administration appears to have done so pursuant to a broader anti-abortion policy.

Nor is this case, Garza v. Hargan, over. Doe received her abortion, but the broader legal question — of whether the government can hold a woman prisoner in this way to keep her from having an abortion — is still working its way through the courts.

As a matter of process, what Doe won from the courts was a “temporarily restraining order” (TRO) requiring the government to permit her to be transported to a clinic for an abortion. Typically, TROs are very temporary orders that may only stay in place for a few days or less. For Doe, those few days were the ballgame, since the government cannot exactly undo her abortion once a court order is lifted. But her lawsuit will live on even though she has already obtained the relief she sought.

That’s because the ACLU filed her suit as a class action, brought on behalf of “all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” Doe obtained a temporary order allowing her to get an abortion, but, according to the ACLU’s complaint, she is hardly the only pregnant immigrant facing an administration hostile to her right to abortion.

Last March, the complaint claims, the administration “revised its policies to prohibit all federally funded shelters from taking ‘any action that facilitates’ abortion access for unaccompanied minors in their care without ‘direction and approval from the Director of'” the Office of Refugee Resettlement. A subsequent email from the office’s acting director laid out an even more restrictive policy. “Grantees are prohibited from taking any actions in [requests for abortion] without . . . signed authorization from the Director of ORR.”

The current ORR director, Scott Lloyd, “personally contacted one or more unaccompanied immigrant minors who was pregnant and  seeking abortion, and discussed with them their decision to have an abortion,” according to the ACLU. The agency allegedly forced Doe to visit a crisis pregnancy center, an anti-abortion center that often masquerades as a place where women can receive reproductive health care, for “counseling.”

In one case, according to the ACLU, the Trump administration even tried to stop an abortion midway through the process.

in March 2017, another unaccompanied minor at a federally funded shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving counseling, she started the medical abortion regimen for terminating a pregnancy. This regimen begins with a dose of mifepristone, followed by a dose of misoprostol within 48 hours later. After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency room of a local hospital in order to determine the health status of [her] and her unborn child.

The TRO handed down in Garza prevented the Trump administration from stopping Doe from receiving her abortion, but it does nothing to halt the administration’s broader policies. That issue still needs to be litigated. And it is far from clear that the ACLU will prevail in the end.

At the moment, there are almost certainly four votes on the Supreme Court that will back the Trump administration’s effort to restrict abortion. Three justices, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, voted to uphold a Texas law enacted to shut down most of the state’s abortion clinics in Whole Woman’s Health v. Hellerstedt. Meanwhile, Neil Gorsuch, who occupies the seat Senate Republicans held open for a year until Donald Trump could fill it, is all but certain to be a crusader against abortion.

That leaves Justice Anthony Kennedy, a conservative who most often votes against abortion rights, but who also has resisted legal theories that would effectively eliminate Roe v. Wade in its entirety. Kennedy is a possible, but far from a certain, vote against the Trump administration’s policy towards immigrants seeking abortions.

There’s a thick thread a paternalism woven through Kennedy’s abortion decisions. Most notably, in Gonzales v. Carhart, Kennedy wrote that a federal ban on certain forms of abortion could be upheld, at least in part because “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” (Typically, the fact that people later come to regret their exercise of a constitutional right is not a reason to limit that right. Many people say things that they later regret, for example, but that’s not a reason to limit the right to free speech.)

Which brings us to Judge Brett Kavanaugh. Kavanaugh is a D.C. Circuit judge and a former law clerk to Justice Kennedy. He’s also widely-viewed as a likely Supreme Court nominee in a Republican administration. Dissenting in Garza, Kavanaugh argued that Doe’s abortion should have been delayed even longer to see if a family member emerged that could take custody of Doe and bring her to the abortion clinic without the government’s involvement. He justified this result with what appears to be a direct appeal to Kennedy’s paternalism:

For most teenagers under 18, of course, they are living in the State in question and have a support network of friends and family to rely on, if they choose, to support them through the decision and its aftermath, even if the minor does not want to inform her parents or her parents do not consent. For a foreign minor in custody, there is no such support network. It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available.

The Trump administration, somewhat surprisingly, did not ask the Supreme Court to block Doe’s abortion. So we may never know how Kennedy would have responded to the paternalistic argument of his former clerk. At the same time, however, it may be months or even more than a year by the time the broader class action challenging the Trump administration’s policy makes its way up to the nation’s highest Court.

Kennedy is 81 years old, and is rumored to be considering retirement. By the time Garza reaches the Court, in other words, Kennedy’s seat could be held by Kavanaugh — or even someone as far to the right as Neil Gorsuch.

So, while the Trump administration lost a skirmish in the abortion wars, time is on its side.