Originally published in The Intercept on December 26, 2017.
Maggie Wynne’s career began 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 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.
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.
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 noreligious 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.”
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.