{"id":151,"date":"2019-05-10T11:14:01","date_gmt":"2019-05-10T15:14:01","guid":{"rendered":"http:\/\/lawblogs.uc.edu\/ihrlr\/?p=151"},"modified":"2019-05-10T11:14:01","modified_gmt":"2019-05-10T15:14:01","slug":"garza-v-hargan-vacated-as-moot-but-still-hanging-over-the-judicial-system","status":"publish","type":"post","link":"https:\/\/lawblogs.uc.edu\/ihrlr\/2019\/05\/10\/garza-v-hargan-vacated-as-moot-but-still-hanging-over-the-judicial-system\/","title":{"rendered":"Garza v. Hargan: Vacated as Moot, but Still Hanging Over the Judicial System"},"content":{"rendered":"

Forty-five years ago, in Roe v. Wade<\/em>, the U.S. Supreme Court held that the right to an abortion is a fundamental liberty, and where certain \u201cfundamental rights\u201d are involved, regulation limiting these rights may be justified only by a \u201ccompelling state interest.\u201d[2]<\/a><\/sup><\/sup><\/p>\n

Later, in\u00a0Planned Parenthood of Southeastern Pennsylvania v.\u00a0Casey<\/em>,[3]<\/a><\/sup><\/sup>\u00a0the Court set up the \u201cundue burden\u201d test to determine which restrictions on abortion access violate due process rights by \u201cha[ving] the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable\u00a0fetus.\u201d[4]<\/a><\/sup><\/sup><\/p>\n

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.[5]<\/a><\/sup><\/sup><\/p>\n

In light of a prior decision[6]<\/a><\/sup><\/sup>, the Court upheld one parental consent regulation, which incorporated a judicial bypass option as sufficient.<\/p>\n

Garza v. Hargan<\/em>[7]<\/a><\/sup><\/sup>concerns whether an undocumented minor with a judicial bypass has a constitutional right to an elective abortion.[8]<\/a><\/sup><\/sup> The holding of the case has been vacated as moot and remanded with directions by the Supreme Court of the United States.[9]<\/a><\/sup><\/sup><\/p>\n

However, as pointed out by <\/a>J<\/a>ustice Kavanaugh[10]<\/a><\/sup><\/sup>, \u201c[t]his is a novel and highly fraught case. The case came to us in an emergency posture.\u201d[11]<\/a><\/sup><\/sup> Judge Millett also admitted that she \u201crecognizes that [her] colleagues labored hard under extremely pressured conditions to craft a disposition.\u201d[12]<\/a><\/sup><\/sup> The case has been vacated, but the issue is still hanging over the judicial system and could come back at any point.<\/p>\n

The Background of the Instant Case<\/strong><\/p>\n

In or about early July 2017, Jane Doe (J.D.), a 17-year-old girl, became pregnant.[13]<\/a><\/sup><\/sup> On or about September 7, 2017, she attempted to enter the United States illegally and unaccompanied.[14]<\/a><\/sup><\/sup> By J.D.\u2019s own admission, authorities detained her \u201cupon arrival.\u201d[15]<\/a><\/sup><\/sup> She has since remained in federal custody, a federally funded shelter, because she is an \u201cunaccompanied alien child.\u201d[16]<\/a><\/sup><\/sup><\/p>\n

The Office of Refugee Resettlement (ORR) of the United States Department of Health and Human Services (HHS) is responsible for \u201cunaccompanied alien children who are in Federal custody by reason of their immigration status.\u201d[17]<\/a><\/sup><\/sup><\/p>\n

ORR\u2019s policy is to work toward \u201cthe timely release of children and youth to qualified parents, guardians, relatives or other adults, referred to as \u2018sponsors,\u2019\u201d who can take\u00a0custody.[18]<\/a><\/sup><\/sup> J.D. was initially sent to a shelter under contract with ORR, where she decided to terminate her\u00a0pregnancy.[19]<\/a><\/sup><\/sup><\/p>\n

Texas has a parental consent requirement, but after a hearing before a local judge, J.D. was granted a judicial bypass on September 25,\u00a02017.[20]<\/a><\/sup><\/sup> ORR refused to approve her departure from the shelter for an abortion, and further announced that shelter personnel \u201care prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR.\u201d[21]<\/a><\/sup><\/sup><\/p>\n

On October 13, 2017, Rochelle Garza, J.D.\u2019s 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\u00a0ORR.[22]<\/a><\/sup><\/sup><\/p>\n

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\u00a0twenty-first.[23]<\/a><\/sup><\/sup><\/p>\n

The Government appealed the TRO in the D.C. Circuit and filed an emergency motion to stay the\u00a0order.[24]<\/a><\/sup><\/sup>\u00a0A three-judge panel, consisting of Judges Henderson, Kavanaugh, and Millett, heard arguments, and released a per curiam order on behalf of Judges\u00a0Henderson\u00a0and Kavanaugh vacating the portion of the order which allowed the abortion\u00a0procedure.[25]<\/a><\/sup><\/sup><\/p>\n

Instead, the panel held that ORR would not have to facilitate the abortion if J.D. could be placed in a sponsor\u2019s custody and that the delay to find a sponsor would not \u201cunduly burden the minor\u2019s right\u00a0.\u00a0.\u00a0.\u00a0so long as the process of securing a sponsor\u00a0.\u00a0.\u00a0.\u00a0occurs\u00a0expeditiously.\u201d[26]<\/a><\/sup><\/sup><\/p>\n

Sitting en banc, the D.C. Circuit\u00a0reversed, ordering the denial of appellants\u2019 emergency stay and a remand of the case to the district court to update J.D.\u2019s abortion date in the\u00a0TRO.[27]<\/a><\/sup><\/sup>\u00a0In a per curiam opinion (\u201cthe en banc majority\u201d), the court denied the stay \u201cbecause 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\u00a0Millett.\u201d[28]<\/a><\/sup><\/sup><\/p>\n

The Government planned to ask the Supreme Court of the United Sates for emergency review of the en banc order.[29]<\/a><\/sup><\/sup> 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.[30]<\/a><\/sup><\/sup> 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.[31]<\/a><\/sup><\/sup><\/p>\n

Judge Kavanaugh\u2019s Dissenting Opinion<\/strong><\/p>\n

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\u2019\u00a0interests.[32]<\/a><\/sup><\/sup><\/p>\n

He defended the panel\u2019s decision allowing the agency more time to find a sponsor who could remove J.D. from ORR\u2019s custody, characterizing the en banc majority\u2019s decision as creating \u201ca new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on\u00a0demand.\u201d[33]<\/a><\/sup><\/sup><\/p>\n

Further, from Judge Kavanaugh\u2019s perspective, the majority\u2019s decision represents a radical extension of the Supreme Court\u2019s 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\u00a0Roe v. Wade<\/em>.[34]<\/a><\/sup><\/sup><\/p>\n

Judge Kavanaugh agreed with the Government\u2019s 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.[35]<\/a><\/sup><\/sup> But the issue at stake is that whether\u00a0the transfer is \u201cexpeditious,\u201d instead of immediate action, adopted by the majority.[36]<\/a><\/sup><\/sup><\/p>\n

For future cases, the term \u201cexpeditious\u201d presumably would entail some combination of (i) expeditious from the time the Government learns of the pregnant minor\u2019s 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.[37]<\/a><\/sup><\/sup><\/p>\n

Conclusion<\/strong><\/p>\n

Judge Kavanaugh\u2019s opinion in Garza<\/em>, quickly took hold in the public\u2019s 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\u2019s abortion by more than one month, pushing her pregnancy into the second trimester.[38]<\/a><\/sup><\/sup><\/p>\n

Judge Kavanaugh, as Trump\u2019s Supreme Court nominee, faced opposition because in some people\u2019s opinions he \u201cha[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.\u201d[39]<\/a><\/sup><\/sup><\/p>\n

In his dissent, Judge Kavanaugh stated that \u201c[a]s a lower court, our job is to follow the law as it is, not as we might wish it to be.\u201d[40]<\/a><\/sup><\/sup>\u00a0It is true that in\u00a0Casey<\/em>, the Court held that a state\u2019s interest was not strong enough to prevent pre-viable abortions\u00a0completely,\u00a0but it could enact regulations on abortion provided they did not constitute an \u201cundue\u00a0burden.\u201d[41]<\/a><\/sup><\/sup><\/p>\n

However, as J.D.\u2019s experience exemplifies, lengthy litigation in the abortion context can itself be used to prevent people from exercising their\u00a0rights. 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 \u201cmature and sufficiently well informed to make the decision to have an\u00a0abortion.\u201d\u00a0She 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\u00a0banned.<\/p>\n

Precedents have authority, however, case law is ever-changing. In Obergefell<\/em>,[42]<\/a><\/sup><\/sup> Justice Kennedy did not adopt any of the previous scrutiny levels, instead, he said, \u201cthese liberties extend to certain personal choices central to individual dignity and autonomy.\u201d Justice Kennedy did not exactly identify what \u201cindividual dignity and autonomy\u201d are, and there is no precedent that can define constitutional \u201cdignity.\u201d<\/p>\n

Each year, thousands of unaccompanied immigrant minors come into Defendant\u2019s (the Government\u2019s) custody after fleeing their home countries, often due to abuse or violence.[43]<\/a><\/sup><\/sup> Hundreds of these minors discover they are pregnant, especially given the high rate of sexual assault when coming across the border.[44]<\/a><\/sup><\/sup><\/p>\n

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.<\/p>\n

Instead of a direct interpretation of the federal precedents, the Court should take the decision-making process of Obergefell<\/em>. 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.<\/p>\n

 <\/p>\n

    \n
  1. Roe v. Wade<\/em>, 410 U.S. 113, 155, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147 (1973),\u00a0holding modified by\u00a0Planned Parenthood of Se. Pennsylvania v. Casey<\/em>, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). \u2191<\/a><\/li>\n
  2. 505 U.S. 833 (1992).<\/em> \u2191<\/a><\/li>\n
  3. Id<\/em>. \u2191<\/a><\/li>\n
  4. Id<\/em>. at 947. \u2191<\/a><\/li>\n
  5. Bellotti v. Baird<\/em>, 443 U.S. 622, 643 (1979).\u00a0 \u2191<\/a><\/li>\n
  6. 874 F.3d 735 (D.C. Cir. 2017). \u2191<\/a><\/li>\n
  7. Id<\/em>. \u2191<\/a><\/li>\n
  8. Azar v. Garza<\/em>, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). \u2191<\/a><\/li>\n
  9. At the time this case came to Justice Kavanaugh, he was still the D.C. Circuit Court of Appeals\u2019s Judge before fill the high-court vacancy. \u2191<\/a><\/li>\n
  10. Garza v. Hargan<\/em>, 874 F.3d 735, 756 (D.C. Cir. 2017),\u00a0cert. granted,<\/em> judgment vacated sub nom.\u00a0Azar v. Garza<\/em>, 138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). \u2191<\/a><\/li>\n
  11. Id<\/em>. at 736. \u2191<\/a><\/li>\n
  12. Garza v. Hargan,<\/em> 874 F.3d 735, 743\u201344 (D.C. Cir. 2017),\u00a0cert. granted, judgment vacated sub nom.\u00a0Azar v. Garza, <\/em>138 S. Ct. 1790, 201 L. Ed. 2d 118 (2018). \u2191<\/a><\/li>\n
  13. Id<\/em>. \u2191<\/a><\/li>\n
  14. Id<\/em>. Citing District Court Docket Entry (Dkt. No.) 1-13 at 1. \u2191<\/a><\/li>\n
  15. 6 U.S.C. \u00a7 279(g)(2) (\u201cunaccompanied alien child\u201d is \u201ca child who,\u201d\u00a0inter alia<\/em>, \u201chas no lawful immigration status in the United States\u201d and \u201chas not attained 18 years of age\u201d). \u2191<\/a><\/li>\n
  16. 6 U.S.C \u00a7 279(b)(1)(A). \u2191<\/a><\/li>\n
  17. Office of Refugee Resettlement, Children Entering the United States Unaccompanied\u00a0\u00a7\u00a02.1(2015),\u00a0<\/em>https:\/\/www.acf.hhs.gov\/orr\/resource\/children-entering-the-united-states-unaccompanied-section-2<\/a>[<\/em>https:\/\/perma.cc\/PF9X-Q9NF<\/a>]. The sponsorship application process involves evaluations, background checks, and sometimes home visits.\u00a0Id.<\/em> \u2191<\/a><\/li>\n
  18. Findings of Fact n Support of Amended Temporary Restraining Order at 1, Garza v. Hargan<\/em>, 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.\u00a0 \u2191<\/a><\/li>\n
  19. Id<\/em>. \u2191<\/a><\/li>\n
  20. Dkt. No. 3-5 at 2. \u2191<\/a><\/li>\n
  21. Complaint for Injunctive Relief and Damages at 1,\u00a0Garza, <\/em>No. 17-cv-02122 (D.D.C. Oct. 13, 2017), ECF No. 20. \u2191<\/a><\/li>\n
  22. Id.<\/em>\u00a0at 2.\u00a0 \u2191<\/a><\/li>\n
  23. Appellants\u2019 Emergency Motion for Stay Pending Appeal at 1,\u00a0Garza, 874 F.3d 735 (No. 17-5236), ECF No. 4.<\/em> \u2191<\/a><\/li>\n
  24. Id<\/em>. at 1. \u2191<\/a><\/li>\n
  25. Id<\/em>. \u2191<\/a><\/li>\n
  26. Garza, 874 F.3d at 736 (per curiam).<\/em> \u2191<\/a><\/li>\n
  27. d.<\/em>\u00a0(citation omitted) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). \u2191<\/a><\/li>\n
  28. Azar<\/em>, 138 S. Ct. 1790, 1792, 201 L. Ed. 2d 118 (2018). \u2191<\/a><\/li>\n
  29. Id<\/em>. \u2191<\/a><\/li>\n
  30. Id<\/em>. \u2191<\/a><\/li>\n
  31. Garza<\/em>, 874 F.3d at 752(per curiam) \u2191<\/a><\/li>\n
  32. Id<\/em>. \u2191<\/a><\/li>\n
  33. Id<\/em>. \u2191<\/a><\/li>\n
  34. Id<\/em>. at 753. \u2191<\/a><\/li>\n
  35. Id<\/em>. \u2191<\/a><\/li>\n
  36. Id<\/em>. \u2191<\/a><\/li>\n
  37. https:\/\/www.nationalreview.com\/2018\/07\/brett-kavanaugh-ruling-in-garza-v-hargan-case-about-due-process\/<\/a> \u2191<\/a><\/li>\n
  38. Id<\/em>. \u2191<\/a><\/li>\n
  39. Id. <\/em>at 756, \u2191<\/a><\/li>\n
  40. Id.\u00a0at 874.<\/em> \u2191<\/a><\/li>\n
  41. Obergefell v. Hodges<\/em>, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). \u2191<\/a><\/li>\n
  42. Brief for appellees<\/em>, at 1, No. 18-5093. \u2191<\/a><\/li>\n
  43. Id<\/em>. (Although it is in dispute that whether she knew she was pregnant when she crossed the boarder into the United States). \u2191<\/a><\/li>\n<\/ol>\n

     <\/p>\n","protected":false},"excerpt":{"rendered":"

    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 \u201cfundamental rights\u201d are involved, regulation limiting these rights may be justified only by a \u201ccompelling state interest.\u201d[2] Later, in\u00a0Planned Parenthood of Southeastern Pennsylvania v.\u00a0Casey,[3]\u00a0the Court set up the \u201cundue burden\u201d […]<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3,10,4],"tags":[],"class_list":{"0":"post-151","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-constitutional-law","7":"category-human-rights","8":"category-immigration-law","9":"czr-hentry"},"aioseo_notices":[],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/posts\/151","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/users\/31"}],"replies":[{"embeddable":true,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/comments?post=151"}],"version-history":[{"count":2,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/posts\/151\/revisions"}],"predecessor-version":[{"id":155,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/posts\/151\/revisions\/155"}],"wp:attachment":[{"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/media?parent=151"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/categories?post=151"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawblogs.uc.edu\/ihrlr\/wp-json\/wp\/v2\/tags?post=151"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}