Forty-five years ago, in Roe v. Wade, the U.S. Supreme Court held that the right to an abortion is a fundamental liberty, and where certain “fundamental rights” are involved, regulation limiting these rights may be justified only by a “compelling state interest.”
Later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court set up the “undue burden” test to determine which restrictions on abortion access violate due process rights by “ha[ving] the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
A majority of the Court indicated, however, in cases in which a minor is involved, a State could constitutionally require parental consent, if it alternatively allowed a pregnant minor to obtain an abortion without parental consent by showing either that she was mature enough to make her own decision, or that the abortion would be in her best interests.
In light of a prior decision, the Court upheld one parental consent regulation, which incorporated a judicial bypass option as sufficient.
Garza v. Harganconcerns whether an undocumented minor with a judicial bypass has a constitutional right to an elective abortion. The holding of the case has been vacated as moot and remanded with directions by the Supreme Court of the United States.
However, as pointed out by Justice Kavanaugh, “[t]his is a novel and highly fraught case. The case came to us in an emergency posture.” Judge Millett also admitted that she “recognizes that [her] colleagues labored hard under extremely pressured conditions to craft a disposition.” The case has been vacated, but the issue is still hanging over the judicial system and could come back at any point.
The Background of the Instant Case
In or about early July 2017, Jane Doe (J.D.), a 17-year-old girl, became pregnant. On or about September 7, 2017, she attempted to enter the United States illegally and unaccompanied. By J.D.’s own admission, authorities detained her “upon arrival.” She has since remained in federal custody, a federally funded shelter, because she is an “unaccompanied alien child.”
The Office of Refugee Resettlement (ORR) of the United States Department of Health and Human Services (HHS) is responsible for “unaccompanied alien children who are in Federal custody by reason of their immigration status.”
ORR’s policy is to work toward “the timely release of children and youth to qualified parents, guardians, relatives or other adults, referred to as ‘sponsors,’” who can take custody. J.D. was initially sent to a shelter under contract with ORR, where she decided to terminate her pregnancy.
Texas has a parental consent requirement, but after a hearing before a local judge, J.D. was granted a judicial bypass on September 25, 2017. ORR refused to approve her departure from the shelter for an abortion, and further announced that shelter personnel “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR.”
On October 13, 2017, Rochelle Garza, J.D.’s guardian ad litem, brought suit in the D.C. District Court on behalf of J.D. and others similarly situated against Eric Hargan, the Acting Secretary of Health and Human Services (HHS), and two other HHS officials, including Scott Lloyd, the Director of ORR.
On October 18, district court Judge Chutkan issued a Temporary Restraining Order (TRO) and ordered HHS to allow J.D. to leave the shelter for pre-abortion counseling mandated by Texas law on October 19 and for the procedure on either the twentieth or twenty-first.
The Government appealed the TRO in the D.C. Circuit and filed an emergency motion to stay the order. A three-judge panel, consisting of Judges Henderson, Kavanaugh, and Millett, heard arguments, and released a per curiam order on behalf of Judges Henderson and Kavanaugh vacating the portion of the order which allowed the abortion procedure.
Instead, the panel held that ORR would not have to facilitate the abortion if J.D. could be placed in a sponsor’s custody and that the delay to find a sponsor would not “unduly burden the minor’s right . . . so long as the process of securing a sponsor . . . occurs expeditiously.”
Sitting en banc, the D.C. Circuit reversed, ordering the denial of appellants’ emergency stay and a remand of the case to the district court to update J.D.’s abortion date in the TRO. In a per curiam opinion (“the en banc majority”), the court denied the stay “because appellants have not met the stringent requirements for a stay pending appeal substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.”
The Government planned to ask the Supreme Court of the United Sates for emergency review of the en banc order. Surprisingly, after Garza prevailed in the D.C. Circuit, she took voluntary, unilateral action to have J.D. undergo an abortion sooner than initially expected. The Supreme Court vacated the en banc order and remanded the case to the United States Court of Appeals for the District of Columbia Circuit with instructions to direct the District Court to dismiss the relevant individual claim for injunctive relief as moot.
Judge Kavanaugh’s Dissenting Opinion
Judge Kavanaugh dissented, joined by Judges Henderson and Griffith when the case was initially decided by the D.C. Circuit. He asserted that the Supreme Court has repeatedly held that the Government may further a compelling state interest as long as it does not impose an undue burden on a woman seeking an abortion. Additionally, he would have held that sponsorship is not an undue burden, arguing that avoiding the need for the government to facilitate the abortion successfully balances the parties’ interests.
He defended the panel’s decision allowing the agency more time to find a sponsor who could remove J.D. from ORR’s custody, characterizing the en banc majority’s decision as creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.”
Further, from Judge Kavanaugh’s perspective, the majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. He stated the majority is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.
Judge Kavanaugh agreed with the Government’s assumption, presumably based on its reading of Supreme Court precedent, that an unlawful immigrant minor such as J.D. who is in Government custody has a right to an abortion. But the issue at stake is that whether the transfer is “expeditious,” instead of immediate action, adopted by the majority.
For future cases, the term “expeditious” presumably would entail some combination of (i) expeditious from the time the Government learns of the pregnant minor’s desire to have an abortion and (ii) expeditious in the sense that the transfer to the sponsor does not occur too late in the pregnancy for a safe abortion to occur.
Judge Kavanaugh’s opinion in Garza, quickly took hold in the public’s conscious. Some people claim that the opinion held by Judge Kavanaugh in the panel court as well as his dissent in the en banc court, because he had already ruled to limit access to safe, legal abortion-he would have allowed the government to delay the young woman’s abortion by more than one month, pushing her pregnancy into the second trimester.
Judge Kavanaugh, as Trump’s Supreme Court nominee, faced opposition because in some people’s opinions he “ha[d] consistently proven to be a conservative ideologue instead of a mainstream jurist. As recently as last year, he disregarded Supreme Court precedent and opposed the health care rights of a vulnerable young woman.”
In his dissent, Judge Kavanaugh stated that “[a]s a lower court, our job is to follow the law as it is, not as we might wish it to be.” It is true that in Casey, the Court held that a state’s interest was not strong enough to prevent pre-viable abortions completely, but it could enact regulations on abortion provided they did not constitute an “undue burden.”
However, as J.D.’s experience exemplifies, lengthy litigation in the abortion context can itself be used to prevent people from exercising their rights. To secure her abortion, J.D. first had to obtain a judicial bypass, which meant she had to personally appear before a judge to show that she was “mature and sufficiently well informed to make the decision to have an abortion.” She then had to wait through multiple appeals, orders, and stays as her pregnancy advanced, limiting the number of doctors who would perform the procedure and bringing her closer to twenty weeks, when abortions in Texas are banned.
Precedents have authority, however, case law is ever-changing. In Obergefell, Justice Kennedy did not adopt any of the previous scrutiny levels, instead, he said, “these liberties extend to certain personal choices central to individual dignity and autonomy.” Justice Kennedy did not exactly identify what “individual dignity and autonomy” are, and there is no precedent that can define constitutional “dignity.”
Each year, thousands of unaccompanied immigrant minors come into Defendant’s (the Government’s) custody after fleeing their home countries, often due to abuse or violence. Hundreds of these minors discover they are pregnant, especially given the high rate of sexual assault when coming across the border.
While the state certainly has the right to use the legal system and appellate process to argue its position, just as J.D. had the right to advocate for hers, clear federal precedent could limit the number of different judicial procedures a minor like J.D. has to endure.
Instead of a direct interpretation of the federal precedents, the Court should take the decision-making process of Obergefell. All people have an inherent right to self-determination, bodily autonomy, and dignity. And both international human rights law and U.S. constitutional law recognize such underlying concepts.
- Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147 (1973), holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). ↑
- 505 U.S. 833 (1992). ↑
- Id. ↑
- Id. at 947. ↑
- Bellotti v. Baird, 443 U.S. 622, 643 (1979). ↑
- 874 F.3d 735 (D.C. Cir. 2017). ↑
- Id. ↑
- Azar v. Garza, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). ↑
- At the time this case came to Justice Kavanaugh, he was still the D.C. Circuit Court of Appeals’s Judge before fill the high-court vacancy. ↑
- Garza v. Hargan, 874 F.3d 735, 756 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). ↑
- Id. at 736. ↑
- Garza v. Hargan, 874 F.3d 735, 743–44 (D.C. Cir. 2017), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). ↑
- Id. ↑
- Id. Citing District Court Docket Entry (Dkt. No.) 1-13 at 1. ↑
- 6 U.S.C. § 279(g)(2) (“unaccompanied alien child” is “a child who,” inter alia, “has no lawful immigration status in the United States” and “has not attained 18 years of age”). ↑
- 6 U.S.C § 279(b)(1)(A). ↑
- Office of Refugee Resettlement, Children Entering the United States Unaccompanied § 2.1(2015), https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-2[https://perma.cc/PF9X-Q9NF]. The sponsorship application process involves evaluations, background checks, and sometimes home visits. Id. ↑
- Findings of Fact n Support of Amended Temporary Restraining Order at 1, Garza v. Hargan, No. 17-cv-02122 (D.D.C. Oct. 24, 2017), ECF No. 30 [hereinafter Findings of Fact]. J.D. was detained at the border and entered federal custody. at 1. ↑
- Id. ↑
- Dkt. No. 3-5 at 2. ↑
- Complaint for Injunctive Relief and Damages at 1, Garza, No. 17-cv-02122 (D.D.C. Oct. 13, 2017), ECF No. 20. ↑
- Id. at 2. ↑
- Appellants’ Emergency Motion for Stay Pending Appeal at 1, Garza, 874 F.3d 735 (No. 17-5236), ECF No. 4. ↑
- Id. at 1. ↑
- Id. ↑
- Garza, 874 F.3d at 736 (per curiam). ↑
- d. (citation omitted) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). ↑
- Azar, 138 S. Ct. 1790, 1792, 201 L. Ed. 2d 118 (2018). ↑
- Id. ↑
- Id. ↑
- Garza, 874 F.3d at 752(per curiam) ↑
- Id. ↑
- Id. ↑
- Id. at 753. ↑
- Id. ↑
- Id. ↑
- https://www.nationalreview.com/2018/07/brett-kavanaugh-ruling-in-garza-v-hargan-case-about-due-process/ ↑
- Id. ↑
- Id. at 756, ↑
- Id. at 874. ↑
- Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). ↑
- Brief for appellees, at 1, No. 18-5093. ↑
- Id. (Although it is in dispute that whether she knew she was pregnant when she crossed the boarder into the United States). ↑