J.D. v. Azar
| Decision Date | 14 June 2019 |
| Docket Number | No. 18-5093,18-5093 |
| Citation | 925 F.3d 1291 |
| Parties | J.D., on behalf of herself and others similarly situated, et al., Appellees v. Alex Michael AZAR, II, Secretary, Health and Human Services, et al., Appellants |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
August E. Flentje, Special Counsel, U.S. Department of Justice, argued the cause for appellants. With him on the brief were Hashim M. Mooppan, Deputy Assistant Attorney General, and Michael C. Heyse, Attorney.
Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Scott A. Keller, Solicitor General, Kyle Hawkins, Assistant Solicitor General, David J. Hacker, Special Counsel for Civil Litigation, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Alabama, M. Stephen Pitt, General Counsel for the Governor of Kentucky, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Eric Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, Doug Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Dave Yost, Attorney General, Office of the Attorney General for the State of Ohio, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, and Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, were on the brief as amici curiae States of Texas, et al. in support of appellants.
Brigitte Amiri, Brooklyn, argued the cause for appellees. With her on the brief were Meagan Burrows, Jennifer Dalven, New York, Arthur B. Spitzer, Scott Michel man, Washington, Daniel Mach, New York, and Melissa Goodman.
Barbara D. Underwood, Solicitor General, Office of the Attorney General for the State of New York, Anisha S. Dasgupta, Deputy Solicitor General, Ester Murdukhayeva, Assistant Solicitor General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kathy Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Russell A. Suzuki, Attorney General, Office of the Attorney General for the State of Hawaii, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, Aaron Frey, Attorney General, Office of the Attorney General for the State of Maine, Robert W. Ferguson, Attorney General,Office of the Attorney Genera l for the Stateof Washington,Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Thomas J. Donovan, Jr., Attorney General, Office o f the Attorney Ge neral for the Sta te of Vermont, an d Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, were on the brief for amici curiae States of New York, et al. in support of appellees.
Jennifer R. Cowan, New York, was on the brief for amici curiae The American College of Obstetricians and Gynecologists, et al. in support of plaintiffs-appellees.
Joel Dodge and Jane Liu, Washington, were on the brief for amici curiae Reproductive Rights, Health, and Justice Organizations and Allied Organizations in support of appellees.
Roxann E. Henry, Washington, was on the brief for amici curiae Immigrants Rights Advocates supporting plaintiffs-appellees.
Before: Srinivasan and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.
Among the scores of persons who come to the United States each year without lawful immigration status, several thousand are "unaccompanied alien children." Unaccompanied alien children have no parent or legal guardian in the United States to care for them. They are thus committed to the custody of the federal government. At some point, an unaccompanied minor might be released to an approved sponsor (usually a relative) pending determination of her entitlement to stay in the United States. If no suitable sponsor exists, an unaccompanied minor might remain in the government's custody for an extended period.
Certain unaccompanied alien children are pregnant when they arrive in federal custody, after what is often a hazardous journey. Though many carry their pregnancies to term, some desire to terminate their pregnancies. But in 2017, the government instituted a policy effectively barring any unaccompanied alien child in its custody from obtaining a pre-viability abortion. This case concerns the constitutionality of that new policy.
The policy functions as an across-the-board ban on access to abortion. It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held—including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion. And the government's newfound ban applies only to pregnant minors : anyone aged 18 (or older) in immigration custody is allowed to terminate her pregnancy. Minors alone, that is, must carry their pregnancies to term against their wishes.
The claim of one minor in this case brings the policy's breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.
She is one of the named plaintiffs who brought this challenge to the government's policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government now appeals. We initially agree with the district court that the case is not moot, and we find no abuse of discretion in the court's certification of a plaintiffs' class consisting of pregnant unaccompanied minors in the government's custody. On the merits, we sustain the district court's preliminary injunction in principal part.
Under binding Supreme Court precedent, a person has a constitutional right to terminate her pregnancy before fetal viability, and the government cannot unduly burden her decision. The government accepts the applicability of that settled framework to unaccompanied alien children in its custody. Those controlling principles dictate affirming the district court's preliminary injunction against the government's blanket denial of access to abortion for unaccompanied minors. We are unanimous in rejecting the government's position that its denial of abortion access can be squared with Supreme Court precedent.
We vacate and remand, though, a separate aspect of the district court's preliminary injunction, which bars disclosure to parents and others of unaccompanied minors' pregnancies and abortion decisions. That portion of the preliminary injunction, we conclude, warrants further explication to aid appellate review.
Unaccompanied alien children (UACs) are minors in the United States with no lawful immigration status and no parents or legal guardians in the country able to care for them. See 6 U.S.C. § 279(g). According to the government's published information about UACs, "[u]naccompanied alien children have multiple inter-related reasons for undertaking the difficult journey of traveling to the United States, which may include rejoining family already in the United States, escaping violent communities or abusive family relationships in their home country, or finding work to support their families in the home country." U.S. Dep't of Health and Human Servs., Office of Refugee Resettlement, About Unaccompanied Alien Children's Services (June 15, 2018), https://www.acf.hhs.gov/ orr/programs/ucs/about ("ORR, UAC Services"). The "age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied alien children especially vulnerable to human trafficking, exploitation[,] and abuse." Id.
The Office of Refugee Resettlement (ORR), a program in the Department of Health and Human Services, bears responsibility for the "care and placement" of UACs. 6 U.S.C. § 279(b)(1)(A). Most UACs are referred to ORR by the Department of Homeland Security (DHS) after having been apprehended by immigration authorities at the border. See U.S. Dep't of Health & Human Servs., Office of Refugee Resettlement, Unaccompanied Alien Children Program...
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