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WASHINGTON, DC - OCTOBER 26: Scott Lloyd, director of the Office of Refugee
Resettlement at the U.S. Department of Health and Human Services, is
sworn-in during a House Judiciary Committee hearing concerning the oversight
of the U.S. refugee admissions program, on Capitol Hill, October 26, 2017 in
Washington, DC. The Trump administration is expected to set the fiscal year
2018 refugee ceiling at 45,000, down from the previous ceiling at 50,000. It
would be the lowest refugee ceiling since Congress passed the Refugee Act of
1980. (Photo by Drew Angerer/Getty Images)
How a Gay Friendly and "Very Pro-Choice" Trump Created the Most Anti-Choice,
Anti-LGBT Administration in Generations
Rachel M. Cohen
December 26 2017, 12:11 p.m.
Photo: Drew Angerer/Getty Images
Maggie Wynne's career as a foot-soldier in the anti-abortion movement began
in Congress, where throughout much of the 1990s she was a staffer for the
so-called Pro-Life Caucus. When George W. Bush took the White House, she
moved to the Department of Health and Human Services to work in the office
that connected Congress and the agency.
A few years later, in 2005, she became a special assistant within HHS. But
as the administration neared its end, Wynne pulled off a bureaucratic move
known as "burrowing," in which an appointed official becomes a career
government employee, with all the job protections that entails.
So when Barack Obama's HHS team arrived, Wynne was there waiting for them at
the Office of Refugee Resettlement, continuing to wage her bureaucratic
battles on behalf of the unborn. Career staff are famously difficult to
fire, but they can be marginalized so that they can't stall an agenda. In
2011, HHS got her out of the agency temporarily by "detailing" her to the
staff of the House Africa, Global Health, and Human Rights Subcommittee,
chaired by Rep. Chris Smith, R-N.J., the most zealous right-to-lifer in the
House and co-chair of the Pro-Life Caucus. The reassignment was part of an
effort to keep her away from the bidding process for federal funding for
anti-trafficking work, as Wynne was known to favor the U.S. bishops who
fought a new Obama-era requirement to offer victims access to abortion
services.
She managed to involve herself in the process regardless, and, in 2015,
Wynne's department was reorganized to strip most of her authority; she was
left directing a relatively small trafficking office, helping to determine
whether foreign-born victims qualified for public services. Less than a year
later, with the punditry convinced Hillary Clinton would become the next
president, Wynne finally called it quits. For the next several months, she
went to work for the Knights of Columbus and was the pilgrimage director at
the St. John Paul II National Shrine in Washington.
But then Donald Trump won.
Wynne quickly came back to public service, becoming an early and influential
member of the HHS transition team. A woman who'd just recently been a
low-level functionary within the agency now had influence over staffing it
at the highest levels, and, until the new director arrived, she was
effectively running ORR. She got herself named Counselor for Human Services
Policy, one of the most powerful positions within the department.
The lurch toward the evangelical, right-to-life movement has elevated what
were once sleepy bureaucratic backwaters into prominent culture war
battlefields.
"The Counselor is the point person for the secretary and the agency on all
major policy and program decisions," explained Jeff Hild, who served under
Obama as chief of staff for HHS's Administration for Children & Families.
"It's a crucial position, and pretty under-the-radar as it's not
public-facing. But the people who have held that job are some of the most
experienced and respected in the field of human services. During the Obama
administration, the Counselors had decades of experience prior to taking on
the role, including as senior staff in Congress and leaders at prominent
think tanks."
Wynne is none of that. But she does have one critical qualification: She is
zealously opposed to abortion - and a slew of her allies in the movement
soon poured into the building.
Wynne, in many ways, is the story of the Trump administration: a fringe
operative who fought her battles far from the center of power, suddenly
washed into a position of extraordinary authority. Across the
administration, officials like her have been leaving their marks, but in the
Health and Human Services Department, the lurch toward the evangelical,
right-to-life movement has elevated what were once sleepy bureaucratic
backwaters into prominent culture war battlefields.
WASHINGTON, DC - OCTOBER 26: Activists carry boxes of petitions calling for
Scott Lloyd, director of the Office of Refugee Resettlement at the U.S.
Department of Health and Human Services, and the Trump administration to
reverse their position of interfering in women's access to reproductive
health care, before the start of a House Judiciary Committee hearing
concerning the oversight of the U.S. refugee admissions program, on Capitol
Hill, October 26, 2017 in Washington, DC. The Trump administration is
expected to set the fiscal year 2018 refugee ceiling at 45,000, down from
the previous ceiling at 50,000. It would be the lowest refugee ceiling since
Congress passed the Refugee Act of 1980. (Photo by Drew Angerer/Getty
Images)
Activists carry boxes of petitions calling for Scott Lloyd, director of the
Office of Refugee Resettlement at the U.S. Department of Health and Human
Services, and the Trump administration to reverse their position of
interfering in women's access to reproductive health care, before the start
of a House Judiciary Committee hearing concerning the oversight of the U.S.
refugee admissions program, on Capitol Hill, October 26, 2017 in Washington,
DC.
Photo: Drew Angerer/Getty Images
Trump's Health and Human Services Department has been quietly stocked with a
host of anti-choice and anti-LGBT ideologues. There's Charmaine Yoest, the
former president of Americans United for Life, who now serves in a top
communications post, and Valerie Huber, an abstinence education champion who
works as chief of staff for the Office of Assistant Secretary. There's
Teresa Manning, a former National Right to Life Committee lobbyist who is
overseeing federal family planning services, and Tom Price, who led the
Department up until October and boasted about as anti-choice a record as a
legislator could.
And then there's Scott Lloyd, another objectively unqualified appointee
leading the Office of Refugee Resettlement. He formerly worked as an
attorney for Knights of Columbus, a leading anti-abortion group, and once
argued that "contraceptives are the cause of abortion." Wynne, who spent
seven years toiling in ORR, overlapped with Lloyd at Knights of Columbus
before coming back to join Trump's transition team.
It was the Office of Refugee Resettlement that made international news by
attempting to block a 17-year-old immigrant in its custody from getting an
abortion. In late October, after being barred for a month by Lloyd, the
unaccompanied minor - known in court filings as Jane Doe - was finally able
to end her unwanted pregnancy. She was detained in a privately run shelter
funded by ORR - which had implemented a new policy forbidding shelters from
"facilitating" abortions. Except Jane Doe wasn't relying on the shelter to
pay for the procedure, or even to transport her there. She just needed
permission to leave temporarily.
In court filings, the administration wrote that it has "strong and
constitutionally legitimate interests in promoting childbirth, in refusing
to facilitate abortion, and in not providing incentives for pregnant minors
to illegal cross the border to obtain elective abortions while in federal
custody." As Jane Doe waited for her abortion, government agencies forced
her to obtain counseling from a Christian-affiliated crisis pregnancy center
and to look at an ultrasound.
The American Civil Liberties Union ultimately prevailed in court for Jane
Doe, but the underlying ORR policy remains in place, and in mid-December the
ACLU filed suit on behalf of two more undocumented minors - Jane Roe and
Jane Poe. A federal judge ruled in their favor last week. In court filings
several days later, Lloyd argued that ORR shouldn't let even a minor
impregnated through rape end her unwanted pregnancy because perhaps she'd
experience "additional trauma" as a result.
Brigitte Amiri, an ACLU attorney representing the minors, told The Intercept
that ORR started to interfere with abortion access in March by working
aggressively to dissuade teenagers, giving them unwanted religious
counseling, and even contacting their parents against their express wishes.
"When all that fails, as it did with Jane Doe, then they just say you can't
get an abortion," she said.
"They just flout the law and the Constitution. They're utterly, utterly
brazen." - Brigitte Amiri, ACLU
These problems, Amiri emphasized, didn't all start with Trump. "Under Obama,
millions of dollars flowed to shelters that had objections to abortion, and
if the minor asked for one, they could say well you can't stay here but
we'll contact the federal government and they'll transfer you somewhere
else," Amiri said. "It was totally stigmatizing, it delayed access to
abortion, and it made the procedure more risky. I had meetings with ORR's
directors - Eskinder Negash in the early years and Bob Carey towards the end
- and I said you need to overhaul these policies. But they would not budge,
so we sued them."
This is, in many ways, the defining contrast between the last administration
and the current one. The Obama administration, sometimes to its credit,
other times to its great discredit, tried to walk a fraught middle ground.
In the case of HHS, it meant partnering with faith-based groups in ways that
sometimes made accessing reproductive health care more difficult for youth
and victims. The Trump administration, meanwhile, has abandoned all pretense
of compromise.
"They just flout the law and the Constitution," said Amiri. "They're
utterly, utterly brazen."
Under the Obama administration, former ORR director Robert Carey said, the
office had a deliberate process for crafting policy that involved convening
stakeholders, drafting revisions, and providing opportunities for feedback.
That process had been inherited from the Bush administration, and every
administration before it, since the advent of the modern bureaucracy. Under
Trump, new ORR policies - including the rule banning grantees from
"facilitating" abortion - have been issued through hastily drafted emails
and memos.
The new rules are issued with such speed that nobody, apparently, even
reviews them for grammar. According to court filings, on March 30, two days
after becoming ORR director, Lloyd emailed his team announcing that
ORR-funded shelters "should not be supporting abortion services pre or
post-release. Only pregnancy services and life-affirming options
counseling." Another email dated March 4 and sent by then ORR-Acting
Director Kenneth Tota said that if unaccompanied minors "may be involved in
an abortion" then ORR-funded shelters were "prohibited from taking any
action that facilitates an abortion without direction and approval from the
Director of ORR."
When she first learned the federal government was prohibiting Jane Doe from
leaving her shelter to access an abortion, Amiri, the ACLU lawyer, thought,
"No way, they can't do that." But then, she told The Intercept, "I realized,
oh, they can do it, and they will do it, until a court stops them."
Aside from appointments, many advocates have raised concerns with specific
actions HHS has taken over the past year - actions signaling that vulnerable
populations, including undocumented immigrants, victims of trafficking, and
LGBTQ individuals - may be subject to further discrimination. Indeed,
"vulnerable" is one of the Centers for Disease Control's newly banned words.
When the HHS published its draft strategic plan for FY2018-2022 this past
fall, it removed all mentions of LGBTQ individuals and ethnic minorities
that had appeared in the Obama-era version. The Trump draft plan also
rewrote the federal government's definition of life, emphasizing that life
begins "at conception."
Then, in early October, the Trump administration issued new rules rolling
back the Obama-era mandate that employers include birth control coverage in
their health insurance plans. (A judge issued a nationwide injunction
against this in mid-December, and second judge issued a preliminary
injunction last week.)
The Trump administration also announced in October it would be soliciting
public comment on ways to potentially reduce HHS regulations governing
faith-based groups - a bright red flag for those worried about
discrimination."Agency regulations already contain religious exemptions that
are too expensive," wrote the Coalition Against Religious Discrimination in
a letter sent to HHS dated November 24.
In response to its solicitation, HHS received nearly 11,000 comments. But it
has only made 80 of them public, those that largely reflect support for
anti-abortion policies and disapproval for rules requiring groups to serve
transgender individuals. "HHS should not solicit comments for rule-making
from thousands of child welfare experts, health experts, and everyday
Americans and then hide those comments from public view," said Julie Kruse,
a federal policy advocate at Family Equality Council.
In 2015, the United States Conference of Catholic Bishops and other
faith-based groups protested ORR for its new rule designed to prevent,
detect, and respond to unaccompanied children who suffered sexual abuse.
Rather than worry if the level of protection offered to minors was adequate,
the groups charged that ORR had fallen short of "protecting existing and
prospective grantees, contractors, subgrantees and subcontractors with
religious or moral objections." Specifically, they protested requirements to
offer victims access to emergency contraception and abortion, even through
referrals.
Put differently, two years ago, some faith-based groups called on the
federal government to exempt them from providing victims with comprehensive
reproductive services. Today, the government itself is led by officials like
Wynne and Lloyd who forbid grantees from providing youth with comprehensive
reproductive services, even when those grantees have no religious or moral
objection to doing so.
As the Supreme Court currently reviews a case that could make it easier for
states, businesses, and organizations to discriminate based on religious or
moral objections, the stakes for LGBTQ individuals are particularly high.
Earlier this year when HHS released its annual national survey on older
adults, it announced it would no longer be asking questions about gender
identity - effectively preventing transgender adults from identifying as a
subgroup on the questionnaire.
"We know the history of HIV and AIDS, we know what happens when the
government is not willing to name a group of people who are most affected by
a public health issue," said Harper Jean Tobin, the director of policy at
the National Center for Transgender Equality. "For years we have been trying
to document and address the serious health disparities transgender people
face, and we can't do that when the government refuses to name them as a
population."
"It's really important to us that HHS send a signal to the states that
federally funded agencies need to serve all youth."- Julie Kruse, Family
Equality Council
On December 15, the United States Conference of Catholic Bishops published
an open letter rejecting the legitimacy of transgender identities. "We come
together to join our voices on a more fundamental precept of our shared
existence, namely, that human beings are male or female and that the
socio-cultural reality of gender cannot be separated from one's sex as male
or female," the letter reads.
Not to be outdone, the Centers for Disease Control and Prevention, which is
under the authority of HHS, made global news itself that day with reports
that it had developed a new list of verboten words. Along with "vulnerable,"
words such as "evidence-based," "transgender" and "fetus" no longer exist,
as far as the agency is concerned.
What the department does or does not do influences others across the
country. "It's really important to us that HHS send a signal to the states
that federally funded agencies need to serve all youth," said Kruse of the
Family Equality Council. According to the group's data, 19 percent of foster
youth over the age of 12 identify as LGBTQ, and same-sex couples foster at
four times the rate and adopt at six times the rate of opposite-sex couples.
Despite 111,000 foster children waiting to be adopted annually, and an
opioid epidemic that has exploded that population, seven states have passed
bills that allow adoption and foster care agencies to discriminate against
LGBTQ youth and prospective parents. Three of those bills passed in 2017.
"We're very concerned about placement of LGBTQ youth into non-affirming
homes or into faith-based group homes where they might be subjected to
conversion therapy," said Kruse.
And it's not just youth. HHS currently requires all medical facilities
receiving Medicaid and Medicare to honor the visitation preferences of their
patients, regardless of sexual orientation and gender identity. HHS may soon
decide to allow federally-funded hospitals and health clinics to turn away
LGBT patients or their loved ones. "State and local housing agencies that
administer programs, like housing vouchers or loans to assist with
purchasing a home, could [also] refuse to offer those services to LGBT older
adults and older same-sex couples," warned a new report from the Movement
Advancement Project.
A Manhattan playboy, who campaigned as friendly to the LGBTQ community and
has dubbed himself "very pro-choice," is now leading the most extreme
anti-choice, transphobic, and anti-gay administration in modern history. The
movement's prayers have been answered.