Monday, November 6, 2017
On October 20, 2017, the United States Court of Appeals for the District of Columbia Circuit heard oral arguments for Garza v. Hargan (17-5236) considering the issue of whether the government should allow an undocumented minor to obtain an abortion. On October 24, 2017, the Court filed an Order siding with the undocumented minor allowing her to obtain the abortion.
This case involved a 17-year-old undocumented immigrants, referred to by “J.D.” J.D is an unaccompanied minor who was detained by the federal government and placed in a government facility run by the Department of Health and Human Services. While at the federal facility, J.D. requested an abortion but the staff resisted her request. It wasn’t until J. D’s counsel contacted the government, that she was allowed to pursue a judicial bypass in lieu of securing parental consent for the abortion as required by Texas law. With the assistances of her attorney and guardian ad litem, J.D. was able to secure a court order permitting her to have an abortion without parental consent. However, the government again took the position that they would not allow J.D. to obtain an abortion. Along with refusing to allow J.D. an abortion, the government also forced her to visit an anti-abortion crisis pregnancy, and told J. D’s mother about her pregnancy despite J. D’s objections.
Counsel for J.D filed a complaint for injunctive relief and damages on behalf of J.D. and other similarly situated class members in the United States District Court for the District of Columbia on October 13, 2017. The complaint alleged that the government’s action violated the Establishment and Free Speech Clauses of the First Amendment to the United States Constitution, and the Fifth Amendment right to privacy, liberty, and informational privacy. The complaint also sought a temporary restraining order preventing the government from obstructing J.D’s access to abortion; a preliminary injunction as to the plaintiff class; a permanent injunction preventing the government from wielding a veto power over an unaccompanied minors’ abortion decision; a permanent injunction preventing the government from forcing unaccompanied immigrant minors from visiting crisis pregnancy centers as a condition of having an abortion or after an abortion; a permanent injunction preventing the government from revealing, or forcing unaccompanied immigrant minors to reveal, to the minor’s parents or immigrant sponsors information about the minors’ abortion decisions, either prior to or after the abortion decisions; a permanent injunction preventing the government from retaliating against unaccompanied immigrant minors from seeking or obtaining abortion; and damages.
Due to the time sensitivity of the issue- that of J.D. being about 15 weeks pregnant and Texas banning abortions at 20 weeks- the case moved very quickly. On October 18, 2017, the District Court ordered the government to allow J.D. to obtain an abortion. The following day, on October 19, 2017 the U.S. Court of Appeals for the District of Columbia issued a ruling which temporarily blocked the District Court’s previous order. The next day, October 20, 2017 a three-judge panel on the same U.S. Court of Appeals heard the case.
At oral argument, the government raised the following arguments: (1) that the government cannot be compelled to facilitate an abortion; and (2) that the government is not imposing an unconstitutional undue burden on J. D’s right to get an abortion because she can choose to voluntarily leave to her home country or she can find a sponsor who will allow her to obtain an abortion. In efforts to avoid making a sweeping constitutional ruling, Judge Kavanaugh focused on the option of J.D. finding a sponsor, because he believed that this option would resolve the case. Judge Kavanaugh, reasoned that releasing J.D to a sponsor would solve the government’s objection and would allow J.D to be released from the government thus allowing her to obtain an abortion. In his view, this option would be satisfactory to everyone. However, J. D’s counsel explained that J.D has tried finding a sponsor and has been unsuccessful.
Judge Henderson went on to ask whether the government has a position on whether J.D has any constitutional rights by virtue of her lack of immigration status. Counsel for the government explained that they are not taking a stance on the issue of J. D’s Constitutional right, rather they explain that even if J.D had a constitutional right to an abortion, the government cannot be compelled to facilitate the abortion. Judge Kavanaugh responded to this by pointing to the fact that women in federal prison have a right to obtain an abortion and the government facilitates that right. The government’s response was that imprisoned women have no other avenue of getting an abortion, whereas individuals in J. D’s situation do have other options.
Judge Kavanaugh also inquired about the rights of pregnant detained adult women. The government’s counsel explained that ICE does have a policy that allows detained adult women to get an abortion. Judge Kavanaugh then asked about the difference between the government facilitating abortions for adult detained undocumented women and the government facilitating abortions for undocumented minors in the care of the federal government. The government’s reasoning in regards to this distinction is that not all detained adult women have the option of a voluntary departure (which would release them from government hands), whereas someone like J.D, who is an unaccompanied minor does have the option of a voluntary departure to her home country or finding a sponsor.
Judge Henderson also inquired about the rights of women seeking medically necessary abortions, to which the government explained that there are exceptions for those women in those circumstances. She further asked the hypothetical of what would happen if J.D were seeking asylum- would a voluntary departure still be a choice? The government responded by affirming that if J.D. were seeking asylum she would still have a voluntary choice because again, there would be no governmental obstacle in her getting an abortion. Judge Henderson further asked whether the legality, or lack thereof, of an abortion in the home country is taken into consideration when voluntary departure is regarded as an option. The government stated that the legal status of abortion of the home country is not taken into consideration and re-emphasized that voluntary departure would still be a choice. Counsel for J.D later disclosed that J. D’s home country does in fact ban abortions.
Judge Millet questioned the government’s counsel about what the government is actually being compelled to facilitate. Counsel responded by saying that the facilitation includes approving the procedure and arranging transfer of custody. To that Judge Millet noted that it is actually the shelter- which is a contractor- that would be arranging the transfer and that the government doesn’t actually have to do anything except allow all of this to happen. The government responded by explaining that the government must still authorize the shelter to allow the abortion and that they must continue to take care of the individual’s health after the procedure is done.
Judge Millet goes on to point out that J.D has already had a judicial bypass and a guardian ad litem, so in essence all that the government would be saying is “we’re going to let you exercise your choice.” To this, the government’s counsel responded that this written authorization would make the government complicit in J.D’s abortion.
In her argument, Plaintiff’s counsel goes on to explain that the government actually does facilitate abortions in extents way greater than what J.D is asking for- that of allowing her to go with her guardian to a clinic. She goes on to emphasize the extent of the harm that JD is facing by being forced to remain pregnant against her will. She explains that she has already been pushed into her second trimester of pregnancy and waiting more time would cause even greater irreparable harm.
In rebuttal, the government’s counsel reiterated that the government is not creating an undue burden, that they are just declining to facilitate the abortion, and that J.D still has the options of voluntarily departing the country or finding a sponsor.
Concurring and Dissenting Opinions
Even though the majority entered an Order allowing J.D to obtain an abortion, Judge Millet, Judge Henderson, and Judge Kavanaugh each had their own very distinct views regarding J.D’s right.
In her concurring opinion, Judge Millet wrote that although she disagrees with the panel order of an expedited sponsorship, she agrees that “today’s decision rights a grave constitutional wrong by the government.” Judge Millet describes the harsh circumstances that J. D faced as an unaccompanied minor immigrant. She goes on to explain that “the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby. The bedrock protections of the Fifth Amendment’s Due Process Claus cannot be that shallow.” Judge Millet goes on to explain that the sponsorship process is anything by expeditious, and for good reasons. She explains that the sponsor is like a foster parent, and like finding a foster family Congress requires the Department of Health and Human Services to be careful in its review and restrictive in who can apply. Furthermore, she is perplexed by the panel’s order not mentioning anything in regards as to J.D’s option of terminating the pregnancy when after the end of the elven days no sponsor is found. She points out that the Order actually states that after the eleven days if J.D could not find a sponsor, she would have to restart litigation all over again. Judge Millet believes that this would create further hardships for J.D.
In her dissenting opinion, Judge Henderson believes that the government wrongfully failed to take a position as to J.D’s constitutional rights as an undocumented individual. She states that an alien minor who attempts to enter the United States eight weeks pregnant- and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit does not have a right to an elective abortion. She says that “To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.” Judge Henderson argues that because J.D was never admitted into the United States, she is not entitled to the due process protections of the Fifth Amendment. Furthermore, she argues that even if J.D did enjoy protections of the Due Process Clause, “due process is not an all or nothing entitlement.”
Judge Kavanaugh 's dissent explains that the majority has given “ 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 immigrant sponsors before they make that momentous life decision.” Judge Kavanaugh does not believe that J.D should be allowed an “abortion on demand” rather he believes that the majority’s approach is radically inconsistent with Supreme Court precedent because the Supreme Court has routinely upheld a wide variety of abortion regulations that entails some delay in the abortion but that serve permissible Government purposes. Likewise, he believes that waiting to transfer J.D to an immigrant sponsor before she has an abortion is what should be done.
To hear the oral argument, click here.
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 Id. at 4.
 Id. at 5.
 Id. at 17.
 Id. at 26.
 Id. at 27.
 Id. at 35.