Pregnant Alien Minor Has Due Process Right To Elective Abortion, D.C. Circuit Says

"Border authorities, immigration officials and HHS [the U.S. Department of Health and Human Services] itself would be well served to know ex ante whether pregnant alien minors who come to the United States in search of an abortion are constitutionally entitled to one. And under today's decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip. (footnote omitted)

— Judge Henderson, dissenting from en banc opinion of the U.S. Court of Appeals for the D.C. Circuit in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. October 24, 2017).

By Catherine Park

The constitutional question may be decided by the U.S. Supreme Court ultimately, but the Government refused to take a position on the question in the federal district court or the federal appeals court, while the plaintiff's motion for a temporary restraining order ("TRO") was being decided:

[T]he district court repeatedly pressed the government about whether J.D. ["Jane Doe"] has a constitutional right to an abortion. The government emphasized that it was "not taking a … position" but was "not going to give [the court] a concession" either. Garza, supra, at 744 (Henderson, J., dissenting).

After the district court granted a TRO requiring the government to permit the pregnant minor (detained by the federal government because of unlawful presence) to be transported to an abortion provider for the procedure:

The government appealed the TRO to this [federal appeals] Court and sought a stay pending appeal. At oral argument, the government repeatedly stated that it takes no position on whether J.D. has a constitutional right to an abortion, (citation omitted), and that it instead "assume[s] for the purposes of … argument" that she has such a right, (citation omitted). Garza, supra, at 744 (Henderson, J., dissenting).

Under insistent pressure to state whether the government was "waiving" the issue, counsel for the government said yes in the heat of the moment. (citation omitted) But the next moment, when reminded of the difference between forfeiture and waiver—a distinction that lawyers often overlook or misunderstand, cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (even "jurists often use the words interchangeably")—counsel effectively retracted the foregoing statement, saying she was "not authorized to take a position" on whether J.D. has a constitutional right to an abortion, (citation omitted). Garza, supra, at 744 n.3 (Henderson, J., dissenting).

To obtain a TRO, the plaintiff must prove among other things that she is likely to succeed on the merits of the case. See, e.g., Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) ("We express no opinion on the question whether [the statute] is being properly implemented. Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the statutory section] in an action brought by a private litigant to justify the issuance of a TRO.").

J.D., a 17-year-old minor, became pregnant in early July 2017 and entered the United States illegally and unaccompanied on September 7, 2017. She was detained "upon arrival." As a dissenting judge on the U.S. Court of Appeals for the D.C. Circuit emphasized, the evidence showed "it is highly likely [J.D.] knew when she attempted to enter the United States … she was at least eight weeks pregnant at the time." Garza, supra, at 744 (Henderson, J., dissenting). Elective abortion is illegal in J.D.'s home country.

A declaration filed under seal by J.D.'s attorney further indicated "J.D. left her home country because of her pregnancy." Id., at 744 n.1 (Henderson, J., dissenting). Apparently the declaration also alleges J.D. left her country because of "abuse." (The contention of abuse is contested by the Government in its petition for a writ of certiorari, filed on November 3, 2017 in the U.S. Supreme Court). The evidence indicated the abortion wasn't medically necessary.

Judge Henderson's dissenting opinion articulated the Government's (probable) position:

[H]aving spent a mere 30 days in the United States, all of them in custody—J.D. filed suit in district court, enlisting this country's courts to vindicate (inter alia) her alleged Fifth Amendment right to an abortion…. Garza, supra, at 744 (Henderson, J., dissenting).

Generally, the Fifth Amendment of the U.S. Constitution requires the federal government (as the Fourteenth Amendment requires the states) to provide "due process of law," which has been interpreted to include "rights of privacy" including abortion. See, e.g., Reno v. Flores, 507 U.S. 292, 301-02 (1993) (citing Collins v. Harker Heights, 503 U.S. 115 (1992); United States v. Salerno, 481 U.S. 739, 746 (1987); Bowers v. Hardwick, 478 U.S. 186, 181 (1986)); see, e.g., Roe v. Wade, 410 U.S. 113, 176 (1973) (Fourteenth Amendment guarantees concept of liberty; "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy"); at 177 ("the right of privacy … is broad enough to cover the abortion decision").

Judge Henderson's dissent emphasized the limited due process rights afforded to those unlawfully present, and the well-established principle that the political branches of government have plenary power over immigration:

"[C]onsideration of what procedures due process may require" turns on "the precise nature of the government function" and the private interest. Cafeteria Workers Union v. McElroy, 367 U.S. 886, 895 (1961). What the Congress and the President have legitimately deemed appropriate for aliens "on the threshold" of our territory, the judiciary may not contravene….

There is a "class of cases" in which "the acts of executive officers, done under the authority of congress, [are] conclusive." Murray's Lessee v. Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 284 (1855). Among that class of cases are those brought by aliens abroad, including those who are "abroad" under the entry doctrine. See Kerry v. Din, 135 S.Ct. 2128, 2139-40 (2015) (Kennedy, J., concurring in the judgment); Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972).

The "entry doctrine" distinguishes those who are merely physically present in the United States from those who are lawfully present. Garza, supra, at 747 (Henderson, J., dissenting) (citing Kerry v. Din, 135 S.Ct. 2128, 2140 (Kennedy, J., concurring in the judgment); Demore v. Kim, 538 U.S. 510, 546 (2003); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 2016, 215 (1953); Kaplan v. Tod, 267 U.S. 228, 230 (1925); United States v. Ju Toy, 198 U.S. 253, 263 (1905) (alien petitioner, although "physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate"); Kiyemba v. Obama, 555 F.3d 1022, 1036-67 n.6 (D.C. Cir. 2009) (Rogers, J., concurring in the judgment) (quoting Mezei, Leng May Ma and Tu Joy in support of proposition that habeas court can order detainee brought within U.S. territory without thereby effecting detainee's "entry" for any other purpose), vacated on other grounds, 559 U.S. 131 (2010); Ukrainian-Am. Bar Ass'n v. Baker, 893 F.2d 1374, 1383 (D.C. Cir. 1990) (Sentelle, J., concurring) (summarizing the entry doctrine); and many more examples).

The dissent by Judge Henderson vigorously opposed elevating "the right to elective abortion above every other constitutional entitlement" routinely denied to those who are illegally present, as the judge accurately emphasized in reviewing immigration jurisprudence:

Freedom of expression, Mandel, 408 U.S. at 770, freedom of association, Galvan v. Press, 347 U.S. 522, 523 (1954), freedom to keep and bear arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir. 2012), freedom from warrantless search, United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990), and freedom from trial without jury, Johnson v. Eisentrager, 339 U.S. 763 (1950), all must yield to the "plenary authority" of the Congress and the Executive, acting in concert, to regulate immigration; but the freedom to terminate one's pregnancy is more fundamental than them all? This is not the law. (footnote omitted) Garza, supra, at 748-49 (Henderson, J., dissenting).

Although the Government declined to elaborate on the constitutional question (i.e., whether a pregnant minor, who is unlawfully present, has a due process right to an elective abortion), the Government opposed being required to facilitate J.D.'s abortion on the ground that her detention posed no "undue burden" on the abortion right (assuming without deciding that such a right exists), citing the seminal U.S. Supreme Court case Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Government argued she could have voluntarily returned to her home country at any time, or found an adult sponsor who could give the required parental consent to abortion, either of which would have dissipated any alleged undue burden.

In the D.C. Circuit, Judge Millett's concurring opinion faulted the Government for arguing that detention based on unlawful presence poses no "undue burden":

The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention by either (i) surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor—effectively, a foster parent—willing to take custody of her and to not interfere in any practical way with her abortion decision. Garza, supra, at 737 (Millett, J., concurring).

The concurrence mischaracterizes the Government's argument, however. The Government sought to establish that routine detention following an illegal entry cannot comprise an "undue burden" as a matter of law, since she doesn't even have the right to remain. An elective abortion (i.e., not medically necessary) is too far beyond the scope of the young woman's bona fide claim to consider and must be dismissed, especially because the constitutional question need not be decided to fully dispose of the young woman's claim.

The facts of the young woman's case were undeveloped at the time of the D.C. Circuit's en banc decision. The pregnant minor could have fled abuse without crossing the border, for instance (and the Government contests the abuse), so why did she cross the border? It hasn't been determined yet why she chose to seek assistance in a foreign land, entering illegally, although her home country undoubtedly has similar resources to assist teenagers in her predicament. Unless J.D. is a persecuted person fleeing a brutal regime, or a victim of genocidal conduct and deprived of national protection, her decision to cross a national boundary without authorization is unjustified.

The U.S. Department of Health and Human Services ("HHS") is responsible for unaccompanied alien minors and was assisting J.D. in finding a sponsor. Before the process was completed, however, a Texas court granted her a judicial bypass and appointed a guardian ad litem, who filed the lawsuit in the federal district court as a putative class action on behalf of J.D. and "all other pregnant unaccompanied immigrant minors in ORR [Office of Refugee Resettlement] custody nationwide, including those who will become pregnant during the pendency of this lawsuit."

The D.C. Circuit issued the en banc decision permitting J.D. to go forward with the abortion on October 24, 2017. (En banc decisions issue from the entire Court, not just a three-judge panel.) The Government informed J.D.'s lawyers that an application for emergency stay would be filed in the U.S. Supreme Court the next day (October 25). J.D.'s lawyers thanked the Government for the information and said she wouldn't be scheduled for an abortion until October 26, but, after the conversation with the Government, upon realizing she could be scheduled earlier, moved up her appointment to October 25. Apparently ORR suspected the abortion had been rescheduled, because ORR was made aware of a change in her schedule, despite not being given a reason for the change.

The Government's petition for a writ of certiorari, as eventually filed on November 3, 2017, seeks sanctions against J.D.'s lawyers. The opposition brief filed by J.D.'s lawyers faults the Government for waiving or forfeiting a challenge to the constitutional question in the courts below, and opposes sanctions by asserting J.D.'s lawyers had no obligation to inform the Government of J.D.'s changed schedule, in any event. The opposition brief further alleges the Government probably wasn't even prepared to file the application for emergency stay in time, pointing to the nine-day delay between finding out about the abortion and filing the cert. petition. (However, since the abortion had been performed already, taking nine days to file the petition didn't change the status quo or help or hurt anyone.)

J.D.'s lawyers justify their conduct as nothing more than being loyal to their client, whose priority was their priority—the abortion. The Government, however, alleges J.D.'s lawyers made a deliberate choice to cut off U.S. Supreme Court review of the D.C. Circuit's en banc decision permitting the abortion to proceed by expediting the abortion without informing the Government and thereby mooting the issue of Supreme Court review of the TRO. (If the Supreme Court review had occurred, perhaps J.D. wouldn't have been permitted to abort.)

The Supreme Court may grant certiorari. Two amicus briefs have been filed in support of the Government. The Legal Center for Defense of Life, which filed an amicus brief, urged sanctions against J.D.'s lawyers:

Illegal aliens do not have a constitutional right to enter the United States to have an abortion, or to obtain an abortion while remaining here illegally. Moreover, no one has a right to compel the federal government to be complicit in the procurement of an abortion….

[T]his Court should disapprove with discipline the legal tactics used below in obtaining an abortion in the middle of the night—scheduled at 4:15 a.m. (Pet. 11)—timed to thwart orderly review by this Court. That conduct increased the medical risks to the 17-year-old girl J.D., and infringed on her right to fully informed consent. Such legally motivated tactics are below the standards of this Court and the legal profession, and should be chastised accordingly.

Eleven states filed an amicus brief emphasizing the D.C. Circuit's disregard for the "substantial connections" test:

Under long-settled doctrine, the constitutional rights an alien may invoke depend on the scope of the alien's ties to this country. It is true that all persons—regardless of immigration status, and regardless of their ties here—have certain cabined constitutional rights, including baseline procedural protections and the right to be free from gross physical abuse. But that does not mean that such unlawfully-present aliens are accorded the panoply of affirmative liberty rights that citizens and lawfully-present aliens possess.

The States—and the State of Texas in particular—are already spending enormous resources dealing with unlawful immigration. The court of appeals' decision, though, creates a perverse incentive to unlawfully enter the country. This will further add to the substantial burden faced by the governmental entities trying to prevent and deal with unlawful immigration.

UPDATE June 4, 2018: The U.S. Supreme Court granted certiorari and vacated the en banc decision of the U.S. Court of Appeals for the D.C. Circuit, which had held that a pregnant alien minor has a due process right to elective abortion.

The U.S. Supreme Court emphasized that the pregnant woman's lawyers took unilateral action to moot the case by scheduling her for an abortion earlier than anticipated. They were seeking to try to retain the benefit of the D.C. Circuit's en banc decision by scheduling the abortion before review by the Supreme Court. The Supreme Court review was, indeed, mooted as a result, but the en banc decision could not be permitted to stand. As the Supreme Court explained:

When "a civil case from a court in the federal system … has become moot while on its way here," this Court's "established practice" is "to reverse or vacate the judgment below and remand with a direction to dismiss." United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)…. One clear example where "[v]acatur is in order" is "when mootness occurs through … the 'unilateral action of the party who prevailed in the lower court.'" Arizonans for Official english v. Arizona, 520 U.S. 43, 71-72 (1997) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23 (1994)). "'It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action that moots the dispute, and then retain the benefit of the judgment.'" Arizonans for Official English, supra, at 75.