This morning, federal district-court judge Tanya S. Chutkan held a hearing in Garza v. Hargan — a case that made headlines two months ago when the ACLU convinced the D.C. Circuit Court of Appeals that a minor illegally present in the United States had a constitutional right to leave custody to obtain an abortion.
While the original plaintiff in the Garza case has already aborted her unborn baby, the case remained open because the 17-year-old from Central America also sought money damages. On Friday, the ACLU amended the complaint to add two new minor plaintiffs to the lawsuit, identified as Jane Roe and Jane Poe, and simultaneously sought class certification, which would allow the case to proceed as a class-action suit with Doe representing the interests of all pregnant unaccompanied minors. The ACLU also filed a motion for a temporary restraining order directing the government to immediately release the newly named girls from custody to obtain abortions.
In pushing for injunctive relief for Roe and Poe, the ACLU parrots the arguments it made to the district and appellate courts in Garza I: By refusing to release the minors from custody to obtain abortions, the federal government is violating the girls’ constitutional rights under Roe v. Wade and related rulings. Conversely, the government maintains that HHS is not required to facilitate Roe’s and Poe’s abortions, stressing in a press release that “the minors in this case — who entered the country illegally — have the option to voluntarily depart to their home country or find a suitable sponsor.”
In Garza I, the D.C. Circuit Court of Appeals rejected this exact argument and held the government had imposed an undue burden on the original Jane Doe plaintiff’s constitutional right to an abortion by refusing to release her from custody to obtain an abortion. However, this case differs in several significant respects.
First, in Garza I, while noting the government’s suggestion that Doe find a sponsor might be “more optimal,” the D.C. Circuit stressed that Doe was 15 weeks pregnant and there was no prospect that a sponsor could be promptly found given that none had been found in “almost seven weeks.” There was also “no evidence before the court that one waited in the wings.”
In this case, however, Roe is ten weeks pregnant and has “identified a potential sponsor” who “is a family member, and U.S. citizen, and [who] has submitted an application.” The government has expedited the reunification process and estimates it needs an additional two weeks to complete the process. This short delay, the government maintains, does not impose a substantial burden on Roe’s right to an abortion.
Poe, on the other hand, is approximately 22 weeks pregnant. At that stage of development, her unborn baby could survive outside the womb, and once viability is reached, the “undue burden” standard established in Planned Parenthood v. Casey and applied in Garza I does not apply. The government thus has a compelling argument that it need not release Poe to abort her unborn baby.
Also, unlike Doe, Roe and Poe have not established their maturity to decide whether to undergo an abortion. Doe, who was held in Texas, had to get a judicial bypass to obtain an abortion, as is required by law in the state for a minor seeking an abortion. Roe and Poe live in shelters in states with liberal abortion laws — which, while not identified in the briefs, do not require parental notification and consent or a judicial bypass, and do not establish a waiting period or prohibit abortions after 20 weeks of pregnancy. Roe and Poe also do not have guardians representing their interests and, according to the government, have not identified any individuals willing to transport them to abortion providers or pay for their abortions.
In opposing the ACLU’s motion for a temporary restraining order, the government highlights these differences in its brief and argues the facts distinguish Roe and Poe’s case from Garza I, compelling the court to deny the ACLU’s motion for a temporary restraining order.
The facts are not the only difference in the Garza sequel. In Garza I, the government assumed that aliens detained at the border and illegally present in the United States possessed a constitutional right to abortion. While the government takes that same approach in Garza II, Steven Wagner, the acting assistant secretary for Administration for Children and Families, and Scott Lloyd, the director of the Office of Refugee Resettlement — both of whom were sued in their individual capacities — filed a separate brief arguing that unadmitted aliens, such as Roe and Poe, do not have a constitutional right to abortion. Texas attorney general Ken Paxton also filed an amicus curie brief in Garza II, on behalf of a coalition of states, likewise arguing there is no constitutional right to abortion for illegal aliens detained at the border.
The dissent in Garza I found this argument compelling, while the majority in Garza I did not address the issue because it had not been raised by the parties. But now two parties have raised the issue, forcing the courts to confront the question. And while Wagner and Lloyd’s argument may not convince the district court to deny Roe’s and Poe’s requested relief, it might prompt the Supreme Court to grant review on this important question of constitutional law.