Late Friday, the D.C. Circuit Court of Appeals held that the Department of Health and Human Services was not required to release an unaccompanied minor illegally present in the United States from custody to obtain an abortion — at least not yet. The case, Garza v. Hargan, represents the first lawsuit decided at the appellate-court level to consider the constitutionality of the government’s policy of refusing to facilitate abortions for minors held by the Office of Refugee Resettlement (ORR).
The plaintiff in Garza is the court-appointed guardian of a 17-year-old girl from Central America, identified in court proceedings only as Jane Doe or J.D. In September 2017, she illegally entered the United States from Mexico without her parents and was immediately seized at the border by federal agents. The government transferred her to the custody of ORR, which placed J.D. in a shelter for unaccompanied minor aliens in Brownsville, Texas.
After learning during a routine medical examination that she was pregnant, J.D. requested an abortion. Under Texas law, a minor cannot obtain an abortion without parental consent or approval by a state-court judge, pursuant to the state’s judicial bypass provisions. On September 25, 2017, a state court conclude that J.D. could abort her unborn baby without parental consent. However, the federal government prohibited the Brownsville shelter from releasing J.D. from custody to obtain an abortion.
J.D.’s guardian, represented by the American Civil Liberties Union, filed suit against the acting director of the HHS, Eric Hargan. District Court Judge Tanya Chutkan, an Obama appointee, ordered the government “to transport J.D. — or allow J.D. to be transported by either her guardian or attorney ad litem — promptly and without delay to the abortion provider closest to J.D.’s shelter in order to obtain the counseling required by state law on October 19, 2017, and to obtain the abortion procedure on October 20, 2017 and/or October 21, 2017, as dictated by the abortion providers’ availability and any medical requirements.”
The government immediately sought a stay of Judge Chutkan’s order, pending appeal. The D.C. Circuit Court allowed J.D.’s release for counseling but stayed the order’s mandate that the government release her for an abortion. The appellate court also scheduled an expedited hearing on the government’s appeal.
On Friday morning, a three-judge panel consisting of Judges Karen L. Henderson, Brett M. Kavanaugh, and Patricia A. Millett presided over an hour-long argument. At oral argument, the court focused on the “undue burden” standard crafted by the Supreme Court in Planned Parenthood v. Casey. Under that standard, if the government places “a substantial obstacle in the path of a woman seeking an abortion on a nonviable fetus,” it violates her right to an abortion.
On appeal, the government argued that its decision not to facilitate elective abortions for minors in its custody does not impose an undue burden on girls because they possess two ways to obtain an abortion without entangling the government in the procedure: The minor alien could be released to a sponsor, or she could voluntarily depart the United States. The ACLU countered that no sponsor had been found in the month since J.D. received a judicial bypass authorizing her abortion. Further, J.D.’s attorneys argued that the government cannot require her to forfeit, as a condition for exercising her right to an abortion, her right to challenge her removal.
That evening, the court issued an order holding that the government did not need to release J.D. to obtain an abortion because, under Casey, there is no undue burden to J.D. so long as the government provides an expeditious process to secure a sponsor to whom she is released. The circuit court then directed the district court “to allow HHS until Tuesday, October 31, 2017, at 5:00 p.m. Eastern Time for a sponsor to be secured for J.D. and for J.D. to be released to the sponsor.” The court continued:
If a sponsor is secured and J.D. is released from HHS custody to the sponsor, HHS agrees that J.D. then will be lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law. If a sponsor is not secured and J.D. is not released to the sponsor by that time, the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the Government or J.D. may, if they choose, immediately appeal.
The government’s best hope to maintain its preferred policy of non-facilitation of abortions for minors is to find and approve a sponsor for J.D. by October 31, 2017. But while the government frantically searches for a sponsor, the ACLU has already filed a petition asking the entire D.C. Circuit to rehear the case. The D.C. Circuit gave the government until 11 a.m. on Monday to respond.
Given both the left-leaning composition of the full court and the fractured panel decision — Judge Millet dissented, and Judge Henderson’s concurrence is forthcoming — it is extremely likely the court will grant rehearing and the ACLU will prevail before the en banc court, with the court adopting the dissent’s position that “the government’s refusal to release J.D. from custody is not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.’s right to make her own reproductive choice.”
No matter what the full D.C. Circuit does, though, the Supreme Court will likely be the next stop. But for now, while the legal wrangling continues, so does the temporary reprieve the court granted J.D.’s unborn baby. Much can change, though, and soon — a change of J.D.’s heart would be the most profound.