Garza v. Hargan, 17-5236.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation874 F.3d 735 (Mem)
Docket NumberNo. 17-5236.,17-5236.
Parties Rochelle GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Appellee v. Eric D. HARGAN, Acting Secretary, Health and Human Services, et al., Appellants
Decision Date24 October 2017

Brigitte Amiri, Senior Attorney, American Civil Liberties Union, New York, NY, Arthur B. Spitzer, Daniel Mach, American Civil Liberties Union of the National Capital Area, Washington, DC, for Appellee Rochelle Garza.

Catherine H. Dorsey, Attorney, U.S. Department of Justice, (DOJ) Office of the Attorney General, Alexander Haas, U.S. Attorney's Office, (USA) Civil Division, Benjamin M. Shultz, Attorney, U.S. Department of Justice, (DOJ) Civil Division, Appellate Staff, Washington, DC, for Appellants Eric D. Hargan, Acting Secretary, Health and Human Services, Stephen Wagner, Acting Assistant Secretary, Administration for Children and Families, and Scott Lloyd, Director, Office of Refugee Resettlement.

Scott Allen Keller, Solicitor, Office of the Attorney General, State of Texas, Austin, TX, for State of Arkansas, State of Louisiana, State of Michigan, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, Amici Curiae for Appellant.

Joshua David Hawley, Office of the Attorney General, State of Missouri, Jefferson City, MO, Scott Allen Keller, Solicitor, Office of the Attorney General, State of Texas, Austin, TX, for State of Missouri, Amicus Curiae for Appellant.

Barbara D. Underwood, Solicitor General, Office of the Attorney General, State of New York Division of Appeals & Opinions, New York, NY, for State of New York, State of Connecticut, State of Pennsylvania, State of Massachusetts, State of Oregon, State of California, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Maine, State of Vermont, State of Washington, Amici Curiae for Appellant.

Karl A. Racine, Office of the Attorney General, District of Columbia, Office of the Solicitor General, Washington, DC, for District of Columbia, Amicus Curiae for Appellant.

Before: Garland, Chief Judge; Henderson* , Rogers, Tatel, Griffith** , Kavanaugh**, Srinivasan, Millett*** , Pillard**** , and Wilkins, Circuit Judges


Per Curiam

Upon consideration of appellee's petition for rehearing en banc and the supplements thereto, the response to the petition and the supplement to the response, the corrected brief for amici curiae States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington, and the District of Columbia in support of appellee's petition, and the vote in favor of the petition by a majority of the judges eligible to participate; and appellee's motion to recall the mandate and petition for en banc consideration of appellee's motion to recall the mandate, it is

ORDERED that the mandate be recalled. The Clerk of the district court is directed to return forthwith the mandate issued October 20, 2017. It is

FURTHER ORDERED that appellee's petition for rehearing en banc be granted. This case has been considered by the court sitting en banc without oral argument, no judge having requested oral argument. It is

FURTHER ORDERED that the order filed October 20, 2017 be vacated, except that the administrative stay remains dissolved. It is

FURTHER ORDERED that appellants' emergency motion for stay pending appeal be denied because appellants have not met the stringent requirements for a stay pending appeal, see Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.1 The case is hereby remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction. The dates in paragraph 1 have now passed, and the parties have proffered new evidence and factual assertions concerning the expected duration of custody and other matters. The district court is best suited to promptly determine in the first instance the appropriate dates for compliance with the injunction. In so doing, the district court retains full discretion to conduct proceedings and make any factual findings deemed necessary and appropriate to the district court's exercise of its equitable judgment, consistent with this order, including with regard to any of the factual disputes that were raised for the first time on appeal. See Ayotte v. Planned Parenthood of N. New England , 546 U.S. 320, 330-31, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ; Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 305 (D.C. Cir. 2006).

Millett, Circuit Judge, concurring:

While I disagreed with the panel order, I recognize that my colleagues labored hard under extremely pressured conditions to craft a disposition that comported with their considered view of the law's demands.

Fortunately, today's decision rights a grave constitutional wrong by the government. Remember, we are talking about a child here. A child who is alone in a foreign land. A child who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant. J.D. then made a considered decision, presumably in light of her dire circumstances, to terminate that pregnancy. Her capacity to make the decision about what is in her best interests by herself was approved by a Texas court consistent with state law. She did everything that Texas law requires to obtain an abortion. That has been undisputed in this case.

What has also been expressly and deliberately uncontested by the government throughout this litigation is that the Due Process Clause of the Fifth Amendment fully protects J.D.'s right to decide whether to continue or terminate her pregnancy. The government—to its credit—has never argued or even suggested that J.D.'s status as an unaccompanied minor who entered the United States without documentation reduces or eliminates her constitutional right to an abortion in compliance with state law requirements.

Where the government bulldozed over constitutional lines was its position that—accepting J.D.'s constitutional right and accepting her full compliance with Texas law—J.D., an unaccompanied child, has the burden of extracting herself from custody if she wants to exercise the right to an abortion that the government does not dispute she has. 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.

That is constitutionally untenable, as the en banc court agrees. Settled precedent from Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), to Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016), establishes that the government may not put substantial and unjustified obstacles in the way of a woman's exercise of her right to an abortion pre-viability. The government, however, has identified no constitutionally sufficient justification for asserting a veto right over J.D. and Texas law.

Judge Kavanaugh's dissenting opinion claims that the court has somehow broken new constitutional ground by authorizing "immediate abortion on demand" by "unlawful immigrant minors" (Judge Kavanaugh's Dissent Op. 752). What new law? It cannot be J.D.'s status as an undocumented immigrant because the government has accepted that her status does not affect her constitutional right to an abortion, as Judge Kavanaugh's opinion acknowledges on the next page (Dissent Op. 752). Accordingly, in this litigation, J.D., like other minors in the United States who satisfy state-approved procedures, is entitled under binding Supreme Court precedent to choose to terminate her pregnancy. See, e.g. , Bellotti v. Baird , 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). The court's opinion gives effect to that concession; it does not create a "radical" "new right" (Judge Kavanaugh Dissent Op. 752) by doing so.1

Beyond that, it is unclear why undocumented status should change everything. Surely 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 Clause cannot be that shallow.

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government's inimitably ironic phrasing—"refuses to leave" its custody, Appellants' Opp'n to Reh'g Pet. 11. That sure does not sound like "on demand" to me. Unless Judge Kavanaugh's dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

1. Sponsorship

The centerpiece of the panel order (and now Judge Kavanaugh's dissenting opinion at 2-3) was the conclusion that forcing J.D. to continue her pregnancy for multiple more weeks is not an "undue burden" as long as the sponsorship search is undertaken "expeditiously." Panel Order at 1. The panel order then treated its ordered eleven-day delay as just such an expeditious process.

But that starts the clock long after the horses have left the gate. The sponsorship search has already been underway for now-almost seven weeks . Throughout all of that time, the...

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