Garza v. Hargan, Civil Action No. 17–cv–02122 (TSC)

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 304 F.Supp.3d 145
• Docket Number: Civil Action No. 17–cv–02122 (TSC)
• Parties: Rochelle GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff, v. Eric D. HARGAN, et al., Defendants.
• Decision Date: 30 March 2018

304 F.Supp.3d 145

Rochelle GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff,
v.
Eric D. HARGAN, et al., Defendants.

Civil Action No. 17–cv–02122 (TSC)

United States District Court, District of Columbia.

Filed March 30, 2018

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Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District Of Columbia, Daniel Mach, Washington, DC, Brigitte Amiri, Pro Hac Vice, New York, NY, for Plaintiff.

Ernesto Horacio Molina, Jr., Sabatino Fioravante Leo, U.S. Department of Justice Office of Immigration Litigation, Appellate Section, Alexander Kenneth Haas, U.S. Department of Justice U.S. Attorney's Office, Joseph Anton Darrow, Woei–Tyng Daniel Shieh, Michael Christopher Heyse, Sarah B. Fabian, Scott Grant Stewart, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Rochelle Garza, on behalf of a putative class of unaccompanied, undocumented

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minors, has sued Eric Hargan, Acting Secretary of the Department of Health and Human Services, Stephen Wagner, Acting Assistant Secretary of the Administration for Children and Families, and E. Scott Lloyd, Director of the Office of Refugee Resettlement, alleging that Defendants have violated the minors' constitutional rights by preventing them from terminating their pregnancies or otherwise availing themselves of the full panoply of legally available reproductive healthcare services while in federal custody. Pending before the court are Plaintiffs' Motion for Class Certification (ECF No. 18) and Motion for a Preliminary Injunction (ECF No. 5). Having reviewed the parties' filings (including the briefs of amici curiae ), the record, and the relevant case law, the court hereby GRANTS Plaintiffs' Motion for Class Certification. The relevant class is defined as all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government. For the reasons set forth below, the court further GRANTS Plaintiffs' Motion for a Preliminary Injunction.

I. BACKGROUND

The Office of Refugee Resettlement (ORR), which is headed by its Director, E. Scott Lloyd, is responsible for "coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status." 6 U.S.C. § 279(b)(1)(A). As part of that responsibility, ORR is charged with "making placement determinations" for UCs, "implementing the placement determinations," "implementing policies with respect to the care and placement" of UCs, and housing them. Id. § 279(b)(1)(C)–(L). In executing these duties, ORR is charged with "ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied minor child." Id. § 279(b)(1)(B). ORR places UCs with federal grantee organizations that provide shelter and services in compliance with ORR policies and procedures. (ECF No. 10–1 ¶¶ 5–6).

In March 2017, ORR instructed employees at federally funded shelters that they "are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR," (ECF No. 5–4), are required to "notify ORR through [assigned federal staff] immediately of any request or interest on any girl's part in terminating her pregnancy," (ECF No. 5–5 at 5), and are not permitted to "support[ ] abortion services pre or post-release; only pregnancy services and life-affirming options counseling." (ECF No. 5–6 at 2). The Director's approval must be in the form of written authorization, and is required "whether the procedure will be paid for with Federal funds or by other means." (ECF No. 5–5 at 3). "Facilitation" includes all actions relating to scheduling appointments, arranging transportation, pursuing a judicial bypass, "or any other facilitative step" in relation to an abortion procedure. (ECF No. 5–5 at 5). The record indicates that a UC seeking an abortion must also obtain an ultrasound and options counseling from a provider on a pre-approved list, and "obtain parental consent, which will necessitate options counseling with [her parents], plus signed, notarized declaration of consent." (ECF No. 5–10 at 3; see also ECF No. 5–9 at 2).

A. Proposed Class and Class Representatives

Plaintiffs seek to form a class that would include all pregnant UCs who are or will be in federal custody and, accordingly, are or will be subject to ORR's policies or practices. Named Plaintiffs include four female UCs—Jane Doe (J.D.), Jane Roe

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(J.R.), Jane Poe (J.P.), and Jane Moe (J.M.)—each of whom has at some point been both pregnant and in ORR custody since Plaintiffs filed the case in October 2017.

1. Jane Doe

J.D., the original named plaintiff in this case, is a UC who entered the United States in September 2017, when she was 17 years old. She was apprehended at the U.S. border and remanded to ORR custody at a shelter in Texas. (Findings of Fact in Supp. of Am. TRO ¶¶ 1–2, ECF No. 30). After a medical examination confirmed that she was pregnant, J.D. sought to terminate her pregnancy, and with the assistance of a guardian ad litem and an attorney ad litem , sought and received a judicial bypass of Texas's parental notification and consent requirements. (ECF No. 30 ¶¶ 3–4). J.D. obtained private funding for the procedure, and her guardian and/or attorney ad litem agreed to transport her to have the procedure. (ECF No. 30 ¶ 10). Nevertheless, when J.D. attempted to complete the final stages of Texas's procedure for obtaining an abortion, Defendants refused to transport her to the facility and refused to allow anyone else to transport her, claiming that transporting J.D. or allowing her transportation would constitute "facilitation." (ECF No. 30 ¶ 6). Defendants maintained that under ORR policy, J.D. could obtain an abortion by leaving ORR's custody in one of two ways: (1) if a third party were to indicate a willingness to serve as a sponsor for J.D., qualify for that position under applicable legal requirements, complete the administrative review process, and obtain ORR approval; or (2) if J.D. were to voluntarily self-deport to her home country, where Defendants conceded that abortion is illegal. (ECF No. 30 ¶ 8).

Defendants also employed other means to dissuade J.D. from having an abortion, such as requiring her to undergo counseling from a religiously-affiliated crisis pregnancy center (some version of which appears to be mandatory for all pregnant minors seeking termination while in ORR custody),¹ and requiring her to view a sonogram. (ECF No. 30 ¶ 7). ORR also notified J.D.'s mother of her decision, despite the fact that J.D. had informed ORR that her parents were abusive, and that she fears returning to her home country for that reason. (Decl. of Marie Christine Cortez ¶¶ 8, 11, ECF No. 41–1).

This court granted J.D.'s request for injunctive relief on October 18, 2017. Defendants immediately sought an emergency stay pending appeal, which a divided panel of the D.C. Circuit granted in part on October 20, over the dissenting statement of Circuit Judge Millett. On October 24, however, the D.C. Circuit, sitting en banc , permitted the injunction to go into effect, "substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett." Garza v. Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017) (mem). J.D. was able to terminate her pregnancy, and was released to a sponsor on January 15, 2018. (Decl. of Jonathan White ¶ 4, ECF No. 115–1).

2. Jane Poe

J.P. is a 17–year old UC who was detained at the U.S. border and remanded to ORR custody at a shelter in an undisclosed location. In or around the week of December 11, 2017, J.P.'s physician informed her that her pregnancy had entered the second trimester. After discussing her options with her physician, J.P. decided to terminate the pregnancy. (TRO ¶ 7, ECF No. 73). J.P. was prevented from doing so by

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the ORR policy, and Government counsel subsequently produced, at the court's request, a document memorializing that decision. (ORR Decision Doc., ECF No. 92–1). The document indicates that J.P.'s pregnancy was a result of rape in her home country, prior to her journey to the United States. (ECF No. 92–1 at 1–2). J.P. also reported that although she faced substantial family pressure to continue with the pregnancy, she had made three requests to have an abortion. (ECF No. 92–1 at 2). The document also reveals the basis of ORR's decision to forbid J.P. from obtaining an abortion—namely, Director Lloyd's belief that abortion constitutes "violence that has the ultimate destruction of another human being as its goal," that "abortion does not here cure the reality that she is the victim of an assault," that "[t]o decline to assist in an abortion here is to decline to participate in violence against an innocent life." (ECF No. 92–1 at 7–8). Lloyd also stated:

At bottom, this is a question of what is in the interest of the young woman and her child. How could abortion be in their best interest where other options are available, and

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