It was dusk on a Friday in March 2017, and the women’s health clinic in San Antonio was mostly deserted, except for a nurse finishing some end-of-the-week paperwork, when the phone rang. The man on the other end of the line introduced himself as Dr. Meyerstein with the Office of Refugee Resettlement in Washington, D.C., the agency charged with the temporary care of children apprehended while crossing the border alone.
Earlier that day, the clinic had given a 17-year-old girl the first dose of a medication abortion — a regimen that requires two sets of pills to be taken at least 24 but no more than 48 hours apart. Meyerstein wanted to know what would happen if the girl didn’t take her second dose.
The nurse knew the patient he was asking about: petite, shy, brown hair and a face that looked younger than the age on her chart. A chaperone from the government-funded shelter where she was being held accompanied her to the appointment.
The clinic had rules protecting patient privacy, the nurse said, but she offered some general information about the risks any patient would face if she didn’t take the rest of her pills: deadly infection; serious, prolonged bleeding; and the possibility of birth defects if the pregnancy progressed.
If he wanted more information about the risks, she said, he could find it on the FDA’s website. She hung up the phone, but Meyerstein called a second time. And a third. Increasingly frantic, he told her that questions were being asked about the safety and legality of the treatment the girl had received that day.
His inquiries struck the nurse as strange and belying an alarming level of ignorance for someone who claimed to have a medical degree. Medication abortions are extremely common in the United States, and safe: Fewer than one-quarter of one percent of patients experience any kind of major complication. As for the legality, the patient had obtained a judge’s approval, as Texas law requires any underage girl without her parent’s permission to do before making an appointment.
When she got home, the nurse Googled to see if a Dr. Shaanan Meyerstein even existed at ORR. As long as she’d worked at the clinic it had been a target of anti-abortion activists, and it occurred to her that this man might be one of them, just pretending to work for the government.
She wasn’t entirely wrong. Meyerstein was a civil servant who had worked for ORR’s unaccompanied-minor program since the Obama administration, but depositions and internal documents show he was acting on orders from a tight group of pro-life crusaders recently installed in the top ranks of ORR’s parent agency, the Department of Health and Human Services: Maggie Wynne, counselor to the secretary of HHS; Matt Bowman, a lawyer in their Office of the General Counsel; and Scott Lloyd, the man recently tapped to helm ORR.
Late into the night, the officials were huddling about how to handle the situation down in San Antonio. They began drafting a directive that would radically reimagine the role of incoming ORR director Lloyd, granting him unprecedented power over the pregnant, underage girls who ended up in the agency’s custody — including the power to make “all medical decisions for the unaccompanied alien child in place of the child’s parents.” (HHS declined to make any of the individuals involved in this story available for interviews.)
The girl, meanwhile, remained unaware of any of it. Staff members at her shelter had been told to withhold her second set of pills, but no one mentioned that her pregnancy — and, with it, the contours of the rest of her life — was being debated by a handful of bureaucrats based in a beige, Brutalist office building 1,600 miles away.
Conventional wisdom — at least since 2016, when candidate Donald Trump bluntly declared his intention to appoint justices who would overturn Roe v. Wade — has held that the gravest threat to reproductive freedom in the United States would come, eventually, from the Supreme Court. But while the focus has been on the judicial branch, officials in the executive have been quietly writing the constitutionally protected right to an abortion out of federal rules and grant guidelines. Today, the ability of low-income women to secure an abortion is poised to disappear even before the next challenge to Roe lands before the court — and for immigrant girls in ORR custody whether it still exists at all is a matter of some debate.
The Department of Health and Human Services is a sprawling agency with a trillion-dollar budget and nearly a dozen operating divisions, including the Food and Drug Administration, the Centers for Disease Control and Prevention, the National Institutes of Health and the government-run health programs Medicare and Medicaid. It has a hand in everything from funding preschool programs and regulating vitamins to identifying Superfund sites and monitoring Ebola outbreaks.
During the Obama administration, no area of the federal government was more reviled by the religious right than HHS. Viewed by religious Republicans as the primary staging ground for the administration’s assaults on “faith” and “freedom,” HHS was assailed for implementing rules that expanded hospital visitation rights to same-sex couples, protected transgender patients from discrimination and required employers to offer birth-control coverage.
It was a coup, then, when Trump installed pious orthopedic surgeon Tom Price as secretary, who, with the help of the office of Vice President Mike Pence, began stocking the department with an army of culture-war veterans plucked from the country’s most radical religious organizations — the archconservative Family Research Council, the anti-abortion Susan B. Anthony List, Americans United for Life, and the National Abstinence Education Association among them. By the time Price was forced to step down over a spending scandal last September, HHS had already been transformed into what the Family Research Council called “a virtual promise-keeping factory” for Christian conservatives.
As Shannon Royce, an alum of the Family Research Council and current head of the Center for Faith-Based and Neighborhood Partnerships at HHS, told a gathering of evangelicals in January, Trump’s HHS “is absolutely a pro-life team, across the spectrum, and that is playing out in many ways.” The “team” has found ways to codify its agenda in corners as disparate as the annual budget for the Centers for Disease Control and Prevention, where the words “fetus” and “transgender” were banned, to the Administration for Community Living, which eliminated questions about sexual orientation from a survey of seniors and people living with disabilities. Royce herself was particularly proud of wedging into HHS’ strategic plan a sentence that redefines life as starting at the moment of conception.
Many of the changes are small enough to go unnoticed in a ream of government paperwork but are nevertheless far-reaching: Strike a few words from a single grant, for instance, and suddenly government-funded shelters are no longer required to provide information about emergency contraception or abortion to victims of sexual assault and sex trafficking. Or tinker with eligibility requirements for Title X — a program that provides family-planning services to 4 million Americans — and not just access to abortion, but birth control and routine medical care for low-income women across the country is suddenly in jeopardy.
HHS touted more boldly, in January, the creation of a new Conscience and Religious Freedom Division inside its Office of Civil Rights to defend doctors who refuse to serve gay and transgender individuals. “It’s perverse — it takes a department that was supposed to protect against discrimination and turns it on its head,” says Jocelyn Samuels, a director of OCR under the Obama administration. In relatively short order, Trump’s HHS has managed to roll back Obama’s employer birth-control mandate, withdraw a separate rule that prevented states from punishing family-planning clinics that offer abortion services, and revise a rule prohibiting discrimination on the basis of gender identity. There’s no sign of slowing: On Sunday, The New York Times reported HHS is taking steps to officially declare gender as unchangeable, and determined by one’s genitals at birth.
“We were expecting gender identity and birth control,” says Kevin Griffis, assistant secretary for public affairs at HHS under Obama, now VP of communications at Planned Parenthood. “We weren’t expecting religion seeping into the Office of Refugee Resettlement.”
The nurse in San Antonio woke the following morning to an e-mail from an employee at the girl’s shelter: Top officials at HHS had a specific list of questions for her and they were demanding answers in writing. Their questions, posed in the e-mail, centered on the dubious practice of administering the hormone progesterone to “reverse” the effects of mifepristone, the first dose of a medication abortion. The practice, widely discredited as junk science, is nonetheless popular with anti-abortion activists who have promoted it as an option for women who may regret their decision immediately after beginning the process.
The girl in question, though, hadn’t expressed any regret, and she wasn’t involved in the officials’ discussions about injecting her with hormones, a staff member at the shelter told the nurse. But HHS officials seemed to decide the girl’s opinion wasn’t all that relevant, and spelled out as much in the memo dispatched to ORR field staff, directing them to take the girl to a local emergency room. “If steps can be taken to preserve the life of the . . . unborn child, those steps should be taken,” it read.
It’s not unusual for girls to arrive at an ORR shelter already pregnant, many as a result of their journey. According to a 2010 Amnesty International estimate, six in 10 female migrants are sexually assaulted at some point during their crossing.
During the Obama administration, requests for abortion were only elevated to the director’s office if there was a question of funding. (Under the Hyde Amendment, the federal government can pay for abortions only in cases of rape, incest or if the life of the mother is at risk.) Most cases, says Bob Carey, ORR director under Obama, were treated no differently than any other emergency medical procedure, like, say, an appendectomy.
“The point,” Carey says, “wasn’t that we — or the director — had the right to authorize an abortion, rather that you were authorizing, as appropriate, the use of federal funds.” ORR director Lloyd sees it differently, though. He believes every abortion should be subject to his personal authorization.
Unlike Carey, who had a decade and a half of experience managing large-scale refugee operations before he was tapped to helm the agency, Lloyd had virtually none. His résumé lists early stints as a humor columnist at a newspaper in New Jersey and as a middle-school teacher in Brooklyn before he joined the legal team at George W. Bush’s HHS, where he helped craft a rule to protect doctors with religious objections to contraception and abortion. He later landed on the policy team of the Knights of Columbus, where, his résumé says, he was the “architect of [a] late-term abortion restriction that is law in six states and is a bill in U.S. House and Senate.”
The 39-year-old father of six has held strong views on abortion since at least law school, where he wrote an emotional personal essay, first reported by Mother Jones, arguing that legalized abortion was by some measures worse than the Holocaust: “The Jews who died in the Holocaust had a chance to laugh, play, sing, dance, learn and love each other,” Lloyd wrote. “The victims of abortion do not.”
Before Lloyd was even sworn in as the head of the ORR, he ordered an accounting of all pregnant girls in the office’s custody. Internal e-mails show an ORR staffer had to cross-reference reports looking for indications of a possible pregnancy and call each shelter to verify the information before coming up with a tally of 38 girls in 18 shelters. After that, Lloyd began receiving a spreadsheet on a weekly basis listing every pregnant underage girl, her location and number of weeks gestation.
In some of his first e-mails to staff, Lloyd declared that absolutely no action — no medical appointments, no meetings with lawyers, no options counseling — would take place without his approval. Lloyd has admitted to personally counseling girls in ORR care about their decisions: “If it’s necessary for me to deliver that message in person, that’s fine,” he told a Catholic news network last fall.
He’s also insisted efforts must be made to alert a girl’s parents in her home country, even when she’s warned her family might react violently to the news. He’s instructed that girls be given medically unnecessary ultrasounds, and in one case he ordered staff to read a graphic description of an abortion to a girl who asked to terminate.
He asked shelter staff to read to one young pregnant girl a letter from a family — strangers to the girl and to Lloyd himself, who admitted the family was not vetted in any way — that offered to adopt her child if the girl kept it. He even encouraged one young girl to carry what Trump might call an “anchor baby” to term — advising her that if she kept her child, it would be an American citizen.
“Even when he’s not personally meeting with minors, he is finding new ways to inject himself into their decision-making process,” says Brigitte Amiri, an ACLU lawyer who’s suing HHS over ORR’s abortion policy. “That right there is just a stunning abuse of power and imposition of ideology — his own personal religious ideological opposition to abortion — on these young people.”
During Lloyd’s tenure, the number of days an unaccompanied child spends in ORR detention has nearly doubled and the number of kids in custody is at an all-time high. “Sponsors [are] reluctant to come forward for fear that they’re going to be arrested,” says Carey, the former ORR director, “even if they have legal status . . . because there are instances where you have people who do have legal status who are being detained.”
The situation only deteriorated when, last spring, the Trump administration implemented a new policy removing children from their parents at the border. As this story was going to press, Politico reported that Lloyd personally directed his staff to stop maintaining a spreadsheet that kept track of the 2,654 children removed from their parents and placed in ORR custody — a move that complicated efforts to reunite those families when the “zero tolerance” policy was suspended after just six weeks. (Months later, hundreds of children separated from their parents are still in ORR custody.)
Officials are reportedly gaming out scenarios that imagine the number of unaccompanied minors in their care doubling from 12,000 to more than 25,000 before the end of the year, and hundreds of million of dollars have been diverted from other HHS programs to pay for it.
As this crisis has been unfolding on his watch, Lloyd has been micromanaging pregnant minors — in his own words, a “tiny fraction” of the population ORR serves. But he has not approved a single abortion. Not even for a young rape victim who threatened to kill herself if she was forced to remain pregnant. “It will not undo or erase the memory of the violence that was committed against her, and it may further traumatize her,” Lloyd wrote in his official memo denying her the procedure, annotated with links to pro-life literature he said he found on the Internet. “I am convinced that assisting with an abortion in this case is not in her best interest.”
Last March, when Lloyd and his colleagues were exploring ways to stop the abortion underway in San Antonio, someone in the Office of General Counsel must have realized how legally dubious their actions were. After an ad hoc legal team, tipped off by the nurse, sprung into action, knocking on a judge’s door at 9 p.m. on a Saturday seeking an emergency order — and after the girl was taken to the hospital and subjected to a medically unnecessary pelvic exam — HHS lawyers finally allowed her to take her second dose and complete her abortion.
The girl was released to a sponsor not long after, but her case forged the template for how ORR would respond to abortion requests that followed. Lloyd would go on to fight another girl’s abortion in court for weeks. The legal battle went all the way to the D.C. Circuit, where, in October 2017, a three-judge panel led by Brett Kavanaugh ruled that the girl, 15 weeks pregnant in a state where abortions are illegal after 20 weeks, should have to wait until she was placed with a sponsor to make a decision.
The government, Kavanaugh wrote, had a vested interest in “favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Shortly after, Trump added Kavanaugh’s name to a list of potential Supreme Court nominees.
“The idea that [Lloyd] could conclude that an abortion, which is constitutionally protected in the U.S., was contrary to the best interest of everyone — every unaccompanied minor in his custody — was horrifying,” says New York Attorney General Barbara Underwood, who led a group of 19 state attorneys general who filed an amicus brief supporting the girl’s right to access. And the fact that Kavanaugh could see merit in the argument, she added, was an ominous sign for reproductive rights nationwide — but at the time, no one knew how ominous.
When Amiri, the ACLU lawyer, took on the case last fall, it seemed open-and-shut. She believed a court would quickly recognize the government’s mistake, grant the girl her abortion, and Amiri would move on to her next case. Instead, as the fight has stretched on for months, the ground has shifted beneath her.
Kavanaugh’s decision was overturned by the full court, but that ruling was specific to her case — and the fight over the policy hammered out that night in March, which dictated no abortions could be performed without Lloyd’s authorization, continues.
Since March of this year, there has been a court order in place barring ORR from operating under the policy. But on September 26th, lawyers for HHS were back before another three-judge panel on the D.C. Circuit Court, challenging the court order. (An HHS representative said the department couldn’t answer specific questions due to the pending litigation.)
It will likely be weeks or months before the court returns a decision. Whatever the outcome, it will almost certainly be appealed to the Supreme Court, where it could test the new conservative majority’s willingness to erode bedrock reproductive rights that have existed since the 1970s.
“It’s a very simple case,” says Amiri. “You can’t ban abortion. For anyone.” Or at least you couldn’t before. Now, with dozens of Trump appointees’ hands on the levers of power inside HHS, and two of them firmly seated on the Supreme Court, anything is possible. And as Roger Severino, head of HHS’s Office of Civil Rights, told the National Right to Life convention in June, “We’re just getting started.”