Tuesday, October 24, 2017

DC Circuit en banc Allows Immigrant Teen's Abortion to Proceed

The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court. 

Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)

Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.

Judge Karen Henderson also dissent in a separate opinion.

https://lawprofessors.typepad.com/gender_law/2017/10/dc-circuit-en-banc-grants-allows-immigrant-teens-abortion-to-proceed.html

Abortion, Constitutional, Family, Reproductive Rights | Permalink

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