J.D. v. Alex Azar, II ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2018 Decided June 14, 2019
No. 18-5093
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
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02122)
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
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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 argued the cause for appellees. With her on
the brief were Meagan Burrows, Jennifer Dalven, Arthur B.
Spitzer, Scott Michelman, Daniel Mach, 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
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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 General for the State of
Washington, Karl A. Racine, Attorney General, Office of the
Attorney General for the District of Columbia, Thomas J.
Donovan, Jr., Attorney General, Office of the Attorney
General for the State of Vermont, and 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 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 were on the brief for amici curiae
Reproductive Rights, Health, and Justice Organizations and
Allied Organizations in support of appellees.
Roxann E. Henry was on the brief for amici curiae
Immigrants Rights Advocates supporting plaintiffs-appellees.
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Before: SRINIVASAN and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Senior Circuit Judge
SILBERMAN.
PER CURIAM: 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.
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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
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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.
I.
A.
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
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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 Fact
Sheet 1–2 (March 2019),
https://www.hhs.gov/sites/default/files/Unaccompanied-
Alien-Children-Program-Fact-Sheet.pdf (“ORR, UAC Fact
Sheet”). Some unaccompanied minors who hail from countries
contiguous with the United States may be immediately
repatriated to their countries of origin by DHS. See 8 U.S.C.
§ 1232(a)(2). But the overwhelming majority of UACs are
from non-contiguous countries and are therefore transferred to
ORR custody. See id. § 1232(a)(2)(A), (a)(3), (b); see also
U.S. Customs & Border Patrol, U.S. Border Patrol Southwest
Border Apprehensions by Sector Fiscal Year 2019 (May 8,
2019), https://www.cbp.gov/newsroom/stats/sw-
border-migration/usbp-sw-border-apprehensions.
In fiscal year 2018, almost 50,000 unaccompanied minors
were referred to ORR. ORR, UAC Fact Sheet 2. Federal law
requires prompt placement of UACs “in the least restrictive
setting that is in the best interest of the child.” 8 U.S.C.
§ 1232(c)(2)(A). Pursuant to that requirement, ORR usually
places unaccompanied minors in one of roughly 100 federally
funded shelters across the country. ORR, UAC Fact Sheet 2.
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B.
An unaccompanied minor ordinarily remains in ORR
custody until one of five events occurs: (i) she is released to a
sponsor in the United States; (ii) she turns 18, at which point
she is transferred to the custody of DHS; (iii) she obtains lawful
immigration status in the United States; (iv) she is permitted to
voluntarily depart the country; or (v) she is removed from the
country. According to recent government data, the average
length of time an unaccompanied minor remains in ORR
custody is approximately 90 days. Id. A minor might remain
in ORR custody for substantially more (or less) time, however,
depending on her individual circumstances.
Most UACs are released to a sponsor at some point, and
they remain with their sponsor while awaiting immigration
hearings. See id. The search for a suitable sponsor begins as
soon as an unaccompanied minor comes into ORR custody.
See Office of Refugee Resettlement, ORR Guide: Children
Entering the United States Unaccompanied § 2.2 (Jan. 30,
2015), https://www.acf.hhs.gov/orr/resource/children-
entering-the-united-states-unaccompanied (“ORR Guide”). A
sponsor might be an immediate relative or legal guardian, a
distant relative, or an unrelated adult with a bona fide social
relationship with the minor or her family. Id. §§ 2.2.1, 2.2.4.
“All potential sponsors for UAC[s] are required to
undergo background checks and complete a sponsor
assessment process that identifies risk factors and other
potential safety concerns.” ORR, UAC Fact Sheet 2.
Accordingly, the “process for the safe and timely release of an
unaccompanied alien child from ORR custody” to a sponsor
“involves many steps.” ORR Guide § 2.1. Those steps
include: “the identification of sponsors; the submission by a
sponsor of the application for release and supporting
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documentation; the evaluation of the suitability of the sponsor,
including verification of the sponsor’s identity and relationship
to the child, background checks, and in some cases home
studies; and planning for post-release.” Id. In some cases,
ORR is never able to identify an appropriate sponsor.
Whether or not released to a sponsor, a UAC may be able
to attain lawful immigration status in the United States. Any
unaccompanied minor who gains lawful immigration status
while in ORR custody must be released into an alternative
placement. Id. § 2.8.6. According to ORR, “[m]any
unaccompanied alien children meet conditions that make them
eligible for legal relief to remain in the United States.” ORR,
UAC Services.
Those forms of relief include but are “not limited to
asylum; special visas for children who have been abused,
neglected, or abandoned by the parents or guardian; special
visas for victims of severe forms of trafficking and other types
of crime; or adjustment of status for those who have a legal
resident or citizen family member.” Id. The first of those
forms of immigration relief, asylum, entitles a person who
demonstrates a well-founded fear of persecution in her country
of origin to remain in the United States and, eventually, to
obtain lawful permanent residence. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158. The other described types of
immigration relief include Special Immigrant Juvenile Status
(through which juveniles subjected to abuse or neglect can
attain lawful permanent residence), see id. §§ 1101(a)(27)(J),
1153(b)(4), as well as T or U nonimmigrant visas for victims
of qualifying crimes or human trafficking, see id.
§§ 1101(a)(15)(T)–(U), 1184(o)–(p).
Barring a path to lawful status in the United States, a UAC
can also apply for “voluntary departure” to her country of
10
origin. “Voluntary departure is a discretionary form of relief
that allows certain favored aliens . . . to leave the country
willingly” rather than undergo removal. Dada v. Mukasey, 554
U.S. 1, 8 (2008). Although a grant of voluntary departure does
not entitle an alien to remain in the United States, it is a form
of immigration relief because it relieves her of some of the
penalties that would attach if she were removed (including, for
example, the five-year bar on reentry). Id. at 11. The grant of
voluntary departure is at the government’s discretion, see 8
U.S.C. § 1229c(a)(1), and is contingent on the withdrawal of
claims to other forms of relief, a concession of removability,
and a waiver of the right to appeal, see 8 C.F.R. § 1240.26.
Finally, unaccompanied minors in ORR custody or
released to sponsors are subject to removal from the United
States. See 8 U.S.C. § 1229a. In that respect, though, they are
entitled to greater procedural protections than either the subset
of minors from contiguous countries subject to immediate
repatriation or adults who can be summarily removed. See,
e.g., 8 U.S.C. §§ 1182(a)(6)(C), (a)(7), 1225(b)(1)(A)(i), (iii).
For example, removal cases for UACs must be adjudicated by
immigration judges, see id. § 1229a, and the government must
ensure that unaccompanied minors have the assistance of
counsel in removal proceedings “to the greatest extent
practicable,” id. § 1232(c)(5).
C.
Roughly thirty percent of the unaccompanied minors to
arrive in the United States in recent years have been female.
See U.S. Dep’t of Health & Human Servs., Office of Refugee
Resettlement, Facts and Data (Feb. 13, 2019),
https://www.acf.hhs.gov/orr/about/ucs/facts-and-data. The
healthcare services afforded to them while in ORR custody
include “family planning services, including pregnancy tests
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and comprehensive information about and access to medical
reproductive health services and emergency contraception.”
ORR Guide § 3.4.
Each year, ORR has several hundred pregnant
unaccompanied minors in its custody. See Email from Kate
Wolff to Bobbie Gregg (Feb. 24, 2016), Mot. for Class
Certification Ex. B at 2 (filed Oct. 18, 2017), ECF No. 18-5
(726 pregnancies in 2014 and an estimated 450 pregnancies in
2015). At least 21 shelters, in states such as Texas, Arizona,
Virginia, and Washington, have housed pregnant UACs. See
Mot. for Class Cert. Ex. C (filed Oct. 18, 2017), ECF Nos. 19-1
to 19-4. In fiscal year 2017, the only year for which there is
data in the record concerning abortion requests, 18 pregnant
unaccompanied minors in ORR custody requested an abortion.
In March 2017, ORR announced that shelters “are
prohibited from taking any action that facilitates an abortion
without direction and approval from the Director of ORR.”
Memorandum from Kenneth Tota, Acting Dir., Office of
Refugee Resettlement, to ORR Staff (Mar. 4, 2017), Mot. for
Prelim. Inj. Ex. A (filed Oct. 14, 2017), ECF. No. 5-4.
Previously, there had been no need for a shelter to secure the
Director’s approval before assisting a minor with accessing
abortion services (unless federal funds were to be used directly
for the procedure). A shelter thus could assist a minor if an
abortion would be consistent with the relevant state’s laws. If
a shelter objected to permitting a minor abortion access on
religious or other grounds, ORR would transfer her to a shelter
willing to provide access.
Under the new policy’s requirement to secure the ORR
Director’s approval before permitting abortion access, Scott
Lloyd, who became Director in March 2017, denied every
abortion request presented to him during his tenure. He refused
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every request regardless of the circumstances, including when
the pregnancy resulted from rape. See Dep. of Scott Lloyd,
Dir., Office of Refugee Resettlement, at 64:19–21, 153:9–14
(Dec. 18, 2017), G.C.A. 207, 229; Dep. of Jonathan White,
Deputy Dir. for Children’s Programs, at 17:20–18:3 (Dec. 19,
2017), P.A. 33–34. The requirement to obtain the Director’s
approval thus functions as a blanket ban.
The ban, though, applies only to those unaccompanied
minors who are in ORR custody (including those at ORR
grantee shelters). A minor who is released to a sponsor, or who
obtains lawful immigration status, thus is no longer subject to
the abortion bar. The same is true of unaccompanied minors
who turn 18 and are then transferred to DHS custody. DHS,
unlike ORR, allows pregnant women in its custody to obtain
abortions. See Immigration & Customs Enforcement
Guidelines, Detention Standard 4.4, Medical Care (Women)
(Dec. 2016), https://www.ice.gov/doclib/detention-
standards/2011/4-4.pdf.
D.
This class action was brought in the name of four plaintiffs
who were unaccompanied minors in ORR custody and whose
requests for an abortion were denied under the new policy.
1.
Jane Doe was 17 years old when apprehended at the border
and remitted to the custody of an ORR shelter in Texas. After
a medical examination showed she was pregnant, Doe
requested access to an abortion. Texas law requires parental
consent or a judicial bypass, and Doe secured a judicial bypass
in Texas court so that she could decide on her own to terminate
her pregnancy. ORR notified Doe’s mother of her pregnancy
13
and her request for an abortion, despite indications that doing
so could expose her to a risk of serious abuse by her family.
Although Doe identified two potential sponsors to ORR,
neither was determined to be suitable or willing to sponsor her.
At the time, Doe was seeking a determination in state court that
would have permitted her to apply for Special Immigrant
Juvenile Status—which, as noted, is a form of immigration
relief available to children who are victims of abuse. ORR
emails stated that Doe had also applied for voluntary departure
but that her application was “not likely to be far [along] at all”
at the time. Email from Jonathan White, Deputy Dir. for
Children’s Programs, to Scott Lloyd, Dir., Office of Refugee
Resettlement (Sept. 22, 2017), P.A. 26.
Doe obtained private funding for the abortion procedure
and arranged her own transportation to and from the provider.
But even though Doe secured her own funding and
transportation, and even though she had satisfied the conditions
under Texas law to obtain an abortion, ORR, per Director
Lloyd’s instruction, refused to authorize her release from the
shelter for the procedure.
On October 14, 2017, a month after she initially requested
an abortion, Doe brought the present suit challenging ORR’s
abortion policies on behalf of herself and a class of similarly
situated individuals. On October 18, the district court granted
Doe a temporary restraining order. The order enjoined the
government from preventing her transport to an abortion
facility or from otherwise interfering with her decision to
terminate her pregnancy. A panel of this Court vacated that
decision on October 20, see Garza v. Hargan, No. 17-5236,
2017 WL 9854552 (D.C. Cir. Oct. 20, 2017), but four days
later, this Court, sitting en banc, vacated the panel order and
14
reinstated the district court’s temporary restraining order, see
Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017).
Doe obtained an abortion the next day, October 25. See
Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam). At
the time, she was estimated to be at least 14 weeks pregnant.
Almost three months later, on January 15, 2018, just before
Doe turned 18 years old, ORR released her to a sponsor. On
June 1, 2018, the Supreme Court vacated our en banc order
because Doe’s claim had become moot. Id. at 1792–93; see
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
2.
A second named plaintiff, Jane Poe, was 17 years old and
pregnant when apprehended at the border in November 2017.
During her initial health screening, Poe disclosed that she had
been raped by a stranger in her country of origin. A subsequent
medical examination revealed that her pregnancy was the result
of the rape. Poe repeatedly requested an abortion even though
her mother (in her country of origin) and a potential sponsor
(in the United States) threatened to beat her if she attempted to
terminate her pregnancy.
ORR’s Deputy Director for Children’s Programs wrote a
memorandum to Director Lloyd in early December 2017,
explaining the circumstances surrounding Poe’s request for an
abortion. The Deputy Director reported that Poe “would like
an abortion on the grounds of being raped.” Memorandum
from Jonathan White, Deputy Dir. for Children’s Programs, to
Scott Lloyd, Dir., Office of Refugee Resettlement (Dec. 6,
2017), P.A. 16. The Deputy Director further explained that Poe
“does not have any viable sponsors” to whom she could be
released, and that her pregnancy had reached 21 weeks, such
that the state-law deadline for an abortion was fast
approaching. Id. at 16–17. As a result, the Deputy Director
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urged, it was “critical that a decision to approve or deny her
request” be made “as soon as possible.” Id. at 17.
Ten days later, Director Lloyd denied Poe’s request for
permission to obtain an abortion. Id. at 18. The next day,
Lloyd issued a file memorandum documenting his decision.
He noted that Poe had become pregnant as the result of rape
but explained that ORR provides refuge “to all the minors in
our care, including their unborn children.” Note to File from
Scott Lloyd, Dir., Office of Refugee Resettlement (Dec. 17,
2017), P.A. 20, 23. “In this request,” Lloyd determined, “we
are being asked to participate in killing a human being in our
care,” and “we ought to choose [to] protect life rather than to
destroy it.” Id. at 23.
One day later, the district court granted Poe’s motion for a
temporary restraining order over the government’s opposition.
Garza v. Hargan, No. 17-cv-02122, 2017 WL 6462270, at *1
(D.D.C. Dec. 18, 2017). Poe then obtained an abortion.
As of July 30, 2018, Poe had not been released to a sponsor
and remained in ORR custody. On December 13, 2018,
however, counsel informed the court that Poe had been granted
asylum and was no longer in ORR custody.
3.
The final two named plaintiffs are Jane Roe and Jane Moe.
Unlike Jane Doe and Jane Poe, each of whom received a
temporary restraining order and obtained an abortion while still
in ORR custody, Jane Roe and Jane Moe were released from
ORR custody before terminating their pregnancies.
In Roe’s case, she learned of her pregnancy in November
2017, while in ORR custody. She claims, and the government
believed, she was 17 at the time. She requested an abortion
16
from her shelter but was not allowed access to an abortion
provider. On December 18, the district court granted Roe a
temporary restraining order. See id. at *1. The government
filed an appeal but soon dismissed it upon discovering
information allegedly indicating that Roe in fact was not a
minor and thus not properly in ORR custody. Roe was then
transferred to the custody of DHS, which, as noted, allows
immigration detainees to obtain an abortion.
As for Jane Moe, around late December 2017, she
informed her ORR shelter that she desired to terminate her
pregnancy. On January 11, she joined the suit and filed an
application for a temporary restraining order, claiming that the
government had already delayed her abortion access by two
weeks. But three days later, Moe was released to a sponsor.
E.
While this class action is brought in the name of four
named plaintiffs, only two of them, Doe and Roe, serve as class
representatives. They moved to certify a class of “pregnant
[UACs] who are or will be in the legal custody of the federal
government.” Mot. for Class Certification at 1 (filed Oct. 18,
2017), ECF No. 18. They sought a preliminary injunction,
claiming that ORR maintains a blanket ban on abortion access,
a parental-notification-and-consent requirement, and
compelled religious counseling, in violation of the Fifth and
First Amendments.
1.
On March 30, 2018, the district court certified a class of
plaintiffs consisting of “all pregnant, unaccompanied
immigrant minor children (UCs) who are or will be in the legal
custody of the federal government.” Garza v. Hargan,
304 F. Supp. 3d 145, 150 (D.D.C. 2018). The court certified
17
the class under Federal Rule of Civil Procedure 23(b)(2), which
applies when a defendant acts on grounds that apply generally
to the class, such that an injunction (or declaratory relief) is
appropriate as to the entire class.
On the merits, the court granted a preliminary injunction
to the class. The court explained that “the government ‘may
not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability.’” Id. at 162 (quoting
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879
(1992) (plurality)). That “basic proscription,” the court
determined, “controls the outcome in this case.” Id.
ORR’s policies, the court observed, “apply to all pregnant
[UACs] in its custody—even those whose pregnancy is the
result of rape.” Id. at 161. Under those policies, the court
explained, “ORR effectively retains an absolute veto over the
reproductive decision of any young woman in its custody, a
veto that is exercised routinely to bar [UACs] from obtaining
abortions, despite the fact that no public funds are expended to
procure the procedures and notwithstanding the [UAC’s] own
wishes or intentions.” Id. at 162.
“In other words,” the court concluded, “ORR’s absolute
veto nullifies a [UAC’s] right to make her own reproductive
choices.” Id. And “ORR’s policy vests the power to decide
the future of a [UAC’s] pregnancy in one man: Director
Lloyd,” whose “ultimate decision is substantially controlled
by—if not entirely based on—his ideological opposition to
abortion.” Id. at 163.
2.
The district court initially entered its preliminary
injunction on March 30, 2018, and then clarified it on April 16,
2018. The injunction contains two relevant provisions.
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First, it enjoins the government from “interfering with or
obstructing any class member’s access to . . . an abortion” or
“other pregnancy-related care” (and also enjoins any
interference with access to a judicial bypass or abortion
counseling). Prelim. Inj. Order (Apr. 16, 2018), G.C.A. 275.
That access mandate pertains solely to pre-viability abortions.
See Order Granting in Part and Denying in Part Motion to Stay
(June 4, 2018) (concurring statement of Srinivasan, J.).
Second, the court enjoined the government from revealing,
or forcing class members to reveal, the fact of their pregnancies
or their abortion decisions to anyone. (Although the
government filed a notice of appeal only as to the original
March 30, 2018, order, the April 16 order merely clarified the
prior order in relevant respects, such that the March 30 order
as clarified on April 16 is properly before us. See Fed. R. App.
P. 4(a)(4)(B)(ii); cf. Sorensen v. City of New York, 413 F.3d
292, 296 & n.2 (2d Cir. 2005).)
Those two aspects of the preliminary injunction—the
access mandate and the disclosure bar—have been appealed by
the government. The government also appeals the district
court’s grant of class certification. The government, though,
does not appeal other provisions of the preliminary injunction
that bar retaliation against class members or shelters for
abortion-related decisions and actions.
II.
The government devotes a majority of its principal brief to
arguing two threshold issues before addressing the merits of
the district court’s preliminary injunction: (i) mootness, and
(ii) class certification. We first take up the government’s
mootness challenge, which we reject. The class’s claims
persist here because of the “inherently transitory” exception.
19
“Mootness is a pragmatic doctrine meant to limit ‘judicial
power to disputes capable of judicial resolution.’” DL v.
District of Columbia, 860 F.3d 713, 722 (D.C. Cir. 2017)
(quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396
(1980)). The mootness inquiry is a “claim-specific analysis.”
Daingerfield Island Protective Soc’y v. Lujan, 920 F.2d 32, 37
(D.C. Cir. 1990); accord Coal. of Airline Pilots Ass’ns v. FAA,
370 F.3d 1184, 1189–90 (D.C. Cir. 2004). The party seeking
jurisdictional dismissal bears the “initial ‘heavy burden’ of
establishing mootness,” but the “opposing party bears the
burden of proving an exception applies.” Honeywell Int’l, Inc.
v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir.
2010) (quoting Motor & Equip. Mfrs. Ass’n v. Nichols, 142
F.3d 449, 459 (D.C. Cir. 1998)). The government challenges
all the claims, including those on which the district court
declined to issue preliminary relief.
“If an intervening circumstance deprives the plaintiff of a
‘personal stake in the outcome of the lawsuit,’ at any point
during litigation,” the district court must dismiss her individual
claim as moot. Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 72 (2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.
472, 477–78 (1990)). For every claim, at least one named
plaintiff must keep her individual dispute live until
certification, or else the class action based on that claim
generally becomes moot. United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1538 (2018); see also Cruz v. Am. Airlines,
Inc., 356 F.3d 320, 331 (D.C. Cir. 2004). Here, the district
court selected Doe and Roe as representatives. (Although the
selection was not revealed until the April 16, 2018, order, we
exercise pendent jurisdiction to review the certification
portion, see Wagner v. Taylor, 836 F.2d 578, 583 (D.C. Cir.
1987).)
20
The government has met its burden regarding the abortion-
access claims. The Supreme Court held that Doe’s claim
“became moot after” her October 25, 2017, abortion. Garza,
138 S. Ct. at 1793. Roe’s claim became moot in late December
2017, when she left ORR custody and was no longer subject to
ORR’s policies.
The First Amendment claims also are moot. The minors
have presented two theories: that (i) ORR compels them to
speak with third parties about their abortion decisions, and that
(ii) ORR commits proselytism by forcing them to meet with
certain religiously affiliated counselors. But those claims
extinguished when Doe and Roe left ORR custody on January
15, 2018, and on or around December 19, 2017, respectively.
In the pleadings, the minors raised two types of Fifth
Amendment disclosure claims: one predicated on their right to
“informational privacy,” the other on their right to choose
whether to terminate the pregnancy. Having obtained their
abortions and exited ORR custody, respectively, Doe and Roe
no longer have the latter claims. As for informational privacy,
we need not decide whether the claims are moot, because they,
like the others, would satisfy the “inherently transitory”
mootness exception.
The Supreme Court sometimes has permitted the lower
courts to “relate [a] certification motion back” to a date when
the individual claims were live. Genesis Healthcare, 569 U.S.
at 71 & n.2. A properly certified class is deemed to have
attained on that date a “legal status separate from the interest
asserted” by the representatives. Sosna v. Iowa, 419 U.S. 393,
399 (1975). Because the class possesses a concrete legal
interest, the mootness of individual claims does not affect the
ability of representatives to litigate a controversy between the
defendants and absent class members. Id. at 402.
 21
The relation-back date depends on the case. For instance,
“where a certification motion is denied and a named plaintiff’s
claim subsequently becomes moot, an appellate reversal of the
certification decision may relate back to the time of the denial.”
Genesis Healthcare, 569 U.S. at 71 n.2; accord DL, 860 F.3d
at 721–23. Relevant here, “[w]here a named plaintiff’s claim
is ‘inherently transitory,’ and becomes moot prior to
certification, a motion for certification may ‘relate back’ to the
filing of the complaint.” Genesis Healthcare, 569 U.S. at 71
n.2 (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–
52 (1991)). We applied the “inherently transitory” doctrine
once before, but we did not elaborate on its contours. See Basel
v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977) (per curiam).
We do so now.
The Supreme Court crafted the exception in injunctive
class actions challenging criminal and immigration detention
procedures. In Gerstein v. Pugh, 420 U.S. 103 (1975), the first
case to apply it, four individuals who were arrested without
warrants in Florida sued state officials and asserted a federal
constitutional right to a judicial probable-cause hearing as a
prerequisite to pretrial detention, id. at 105–07. The Supreme
Court noted that “the record d[id] not indicate whether any of
[the four plaintiffs] w[as] still in custody awaiting trial when
the District Court certified the class.” Id. at 110 n.11. Because
the individuals sought a hearing for pretrial detention, their
claims necessarily became moot when the detention ended.
See id. Nonetheless, the Court let the class action survive. It
reasoned:
The length of pretrial custody cannot be
ascertained at the outset, and it may be ended at
any time by release on recognizance, dismissal
of the charges, or a guilty plea, as well as by
acquittal or conviction after trial. It is by no
22
means certain that any given individual, named
as plaintiff, would be in pretrial custody long
enough for a district judge to certify the class.
Moreover, in this case the constant existence of
a class of persons suffering the deprivation is
certain. The attorney representing the named
respondents is a public defender, and we can
safely assume that he has other clients with a
continuing live interest in the case.
Id.
The Supreme Court applied Gerstein’s holding in three
other cases. See Nielsen v. Preap, 139 S. Ct. 954, 963 (2019)
(plurality); McLaughlin, 500 U.S. at 50–52; Swisher v. Brady,
438 U.S. 204, 213 n.11 (1978). In Brady, the Supreme Court
considered the Double Jeopardy implications of a state regime
where juveniles in criminal proceedings had been found not
guilty in proposed rulings by so-called “masters” but were
convicted after prosecutors filed exceptions and juvenile court
judges reversed the masters’ proposals. 438 U.S. at 206–13.
Nine juveniles filed the injunctive class action in November
1974, asserting that a state procedural rule creating the regime
was unconstitutional. Id. at 206, 209. The Supreme Court
noted that, prior to certification, the injunctive claims for the
juveniles became moot because the State either had withdrawn
its objections (thus removing the minor from alleged jeopardy)
or secured a ruling from a juvenile court judge (thus
completing the allegedly unconstitutional second prosecution).
Brady, 438 U.S. at 213 n.11. Still, the Court emphasized the
“rapidity of judicial review of exceptions” for all class
members and allowed the class’s claims. Id. The Court also
highlighted that expired individual claims need not end a class
action if mootness occurs before the district judge “can
23
reasonably be expected to rule” on certification. Id. (quoting
Sosna, 419 U.S. at 402 n.11).
In McLaughlin, the Supreme Court applied Gerstein in a
factually similar context. The Court in Gerstein recognized the
constitutional requirement for a judicial hearing and noted that
it must occur “promptly” after the warrantless arrest. Gerstein¸
420 U.S. at 125. Pretrial detainees brought an injunctive class
action challenging the promptness of hearings taking place in
the County of Riverside, California. McLaughlin, 500 U.S. at
47–48. The Supreme Court noted that the individual claims
had become moot before certification because the named
plaintiffs either “received probable cause determinations or
were released.” McLaughlin, 500 U.S. at 51. But like in
Gerstein, some claims are “so inherently transitory that the trial
court will not have even enough time to rule on a motion for
class certification before the proposed representative’s
individual interest expires.” Id. (quoting Geraghty, 445 U.S.
at 399). The Court concluded that lower courts may invoke
“the ‘relation back’ doctrine” to “preserve the merits” of such
claims “for judicial resolution.” Id.
Most recently, in Preap, the Supreme Court considered the
scope of an immigration detention provision in the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-128, div. C, 110 Stat. 3009-
546 (codified as amended in scattered sections of Titles 8, 18,
and 28 of the U.S. Code). With exceptions not relevant here,
the IIRIRA provision mandates the detention without bail of
immigrants who had been convicted of certain crimes, who
were later arrested upon belief of their inadmissibility or
deportability, and who are awaiting the conclusion of removal
proceedings. See 8 U.S.C. § 1226(c). In two injunctive class
actions, immigrant plaintiffs who were detained under the
provision sought a bail hearing, which federal regulations
24
ordinarily would provide. See Preap, 139 S. Ct. at 959–60; id.
at 975 (Thomas, J., concurring in part and concurring in the
judgment); see also 8 C.F.R. §§ 236.1(c)(8), (d)(1), 1003.19,
1236.1(d)(1).
“[B]y the time of class certification[,] the named plaintiffs
had obtained either cancellation of removal or bond hearings.”
Preap, 139 S. Ct. at 963 (plurality). The government thus
argued that the class actions were moot. And two justices
found that the “inherently transitory” exception does not apply
because the immigrants “are held, on average, for one year, and
sometimes longer” and the trial judges could rule on
certification within such a time frame. Id. at 976 (Thomas, J.,
concurring in part and concurring in the judgment) (citing
Jennings v. Rodriguez, 136 S. Ct. 830, 860 (2018) (Breyer, J.,
dissenting)).
But the plurality disagreed with the government and those
two justices. Id. at 963 (plurality). Unmoved by the one-year
average length of time, the plurality found detention to be
sufficiently “transitory” because it “ends as soon as the
decision on removal is made.” Id. (plurality). As for the
cancellation of removal and bond hearings, the plurality found
irrelevant the fact that the “named plaintiffs obtained some
relief before class certification.” Id. (plurality).
Gerstein, Brady, McLaughlin and Preap confirm that the
relation-back doctrine requires us to analyze the “practicalities
and prudential considerations” of the class action under review.
Geraghty, 445 U.S. at 404 n.11; see also Basel, 551 F.2d at 397
n.1 (“[W]hether the certification can be said to ‘relate back’ to
the filing of the complaint may depend upon the circumstances
of the particular case and especially the reality of the claim that
otherwise the issue would evade review.”); cf. DL, 860 F.3d at
722 (noting the “pragmatic” nature of the mootness doctrine).
25
None of the cases purports to outline all factors relevant to the
inquiry. Still, two requirements emerge.
First, as the exception’s moniker implies, we must
consider the extent to which the individual claims are
“inherently transitory.” As Gerstein puts it, the district court
must determine whether it is “by no means certain” that an
individual claim will persist long enough for it to adjudicate
class certification. 420 U.S. at 110 n.11 (“It is by no means
certain that any given individual, named as plaintiff, would be
in pretrial custody long enough for a district judge to certify the
class.”); accord Sanchez-Gomez, 138 S. Ct. at 1538.
Because the mootness inquiry depends on whether the
claim is potentially fleeting, we must determine what qualifies
as too brief. Once the district court deems a Rule 23 class valid,
the subsequent mootness of individual claims does not
terminate litigation. See Sosna, 419 U.S. at 399, 402; see also
Genesis Healthcare, 569 U.S. at 75. The “inherently
transitory” exception serves only to salvage claims that will, or
at least might, not survive until certification. Thus, we must
consider whether “mootness problems” might arise to end the
claim “before the district court can reasonably be expected to
rule on a certification motion.” Brady, 438 U.S. at 213 n.11
(quoting Sosna, 419 U.S. at 402 n.11).
The inquiry may rely on reasoned supposition. In
Gerstein, the Supreme Court expressed concerns that release,
dismissal of charges, a plea, or a verdict “may” end the pretrial
detention claims before a class-certification decision. Id. The
Court never attempted to figure out which—or even whether—
these events in fact occurred to a class member; the record did
not reveal such details. See id. The Court instead hypothesized
events that “may” occur, based on the “practicalities” of the
litigation at issue, Geraghty, 445 U.S. at 404 n.11, and its
26
understanding of how the criminal justice system works in
general.
Second, the record must sufficiently assure us that some
class members will retain a live claim throughout the
proceedings. See Gerstein, 420 U.S. at 110 n.11 (“Moreover,
in this case the constant existence of a class of persons
suffering the deprivation is certain.”); see also Sanchez-
Gomez, 138 S. Ct. at 1538; Genesis Healthcare, 569 U.S. at 76.
Even in the class-action context, a “live controversy” must
always exist throughout the litigation. See Sosna, 419 U.S. at
402. Indeed, the Supreme Court in Gerstein noted that some
class members—to wit, absent clients of the plaintiffs’
counsel—had a “continuing live interest” while the case was
before it. 420 U.S. at 110 n.11.
In sum, the “inherently transitory” exception to mootness
requires us to determine (i) whether the individual claim might
end before the district court has a reasonable amount of time to
decide class certification, and (ii) whether some class members
will retain a live claim at every stage of litigation. An
affirmative answer to both questions ordinarily will suffice to
trigger relation back.
Doe and Roe have demonstrated that the exception applies
in this case. The claims at issue likely will, or at least might,
end quickly. The average length of custody for a minor was 41
days in fiscal year 2017, when the initial complaint was filed,
and was roughly 90 days by the beginning of fiscal year 2019.
Of course, that is just an average, and certain events could end
the claims earlier. A minor under ORR custody may turn 18
years old or successfully seek voluntary departure to her
country of origin. The government acknowledges that it may
find a sponsor at any point and that it may obviate the claim by
finding one swiftly. See Oral Arg. Recording 1:16:13–36.
27
Such is the case for Moe, for whom the government located a
sponsor three days after she had joined the case. Thus, as the
district court noted, “the length of time that pregnant [minors]
will remain in ORR custody is uncertain and unpredictable.”
Garza, 304 F. Supp. 3d at 159.
The government responds that, for any individual claim,
the district court will know in advance the viability date and
the relevant abortion deadline for the state where ORR keeps
the minor, and that the motion may be decided ahead of those
dates. Gov’t Br. 24–26; Gov’t Reply Br. 5–6. The argument
errs in ignoring sponsorship and voluntary departure as
potential terminating events. And even if viability were the
appropriate time frame for the mootness analysis, we would
reject the government’s argument. Just as the one-year
immigration detention in Preap would end too soon, so too
would a full term of pregnancy, let alone the remaining weeks
for obtaining a pre-viability abortion after a minor becomes
aware of her pregnancy. Furthermore, the Court in Gerstein
underscored that a defendant’s pretrial detention could come to
an end (thus mooting the claim) “upon acquittal or conviction
after trial,” which might not occur for many months. See 420
U.S. at 110 n.11.
The government also stresses that Doe’s and Roe’s claims
remained live long enough for the district court to decide their
merits through temporary restraining order applications. Gov’t
Br. 25–26. The district court “necessarily ha[d] time to take
action” on the certification request because it had enough time
to decide the merits. Gov’t Reply Br. 5–6. No case law
supports this argument. We reject its upshot as unworkable
and inequitable: that some class actions would evaporate
because the irreparable harm to individual plaintiffs was clear
enough to warrant immediate relief but the class definition
issue was complex enough to require discovery. Relatedly, we
28
fear that accepting the argument would vitiate the mootness
exception. Courts may issue temporary relief in virtually every
case; a judge sometimes will sign a restraining order on the day
the plaintiff files her complaint. Indeed, there would have been
no need to apply the exception in Gerstein or McLaughlin,
because the lower courts could have granted interim relief
releasing detainees from pretrial custody. Accordingly, we
find irrelevant the issuance of emergency relief in this case.
See Preap, 139 S. Ct. at 963 (plurality) (“[T]he fact that the
named plaintiffs obtained some relief before class certification
does not moot their claims.”).
As for the second question, the district court found—and
the government does not dispute—that some class members
will have live claims at every stage of litigation. See Garza,
304 F. Supp. 3d at 160 (noting that “the claims of numerous
potential class members remain unaddressed”). ORR
continues to keep pregnant minors, and the plaintiffs represent
that about a dozen expressed an interest in abortion or related
information during the first six months after the issuance of the
injunction. See Oral Arg. Recording 1:34:38–54.
Based on a faithful application of the Supreme Court’s
precedents, we find that the plaintiffs have established both
requirements of the “inherently transitory” exception.
Accordingly, the district court’s class certification relates back
to the date of the pleadings, and all the class’s claims remain
live.
III.
We next consider whether the district court properly
certified a class of plaintiffs consisting of pregnant UACs who
are (or will be) in ORR custody. Federal Rule of Civil
Procedure 23(a) requires putative class representatives to show
that: “(1) the class is so numerous that joinder of all members
29
is impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a). Here, the
government contends that the class fails to meet each of those
requirements.
A proposed class must also satisfy one of the three
requirements of Rule 23(b). The district court certified the
class under Rule 23(b)(2), which applies when a defendant
“has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). The government raises no
argument of any error in certifying an injunctive class under
Rule 23(b)(2), instead confining its arguments to Rule 23(a)’s
requirements.
We review the district court’s certification of the class
only for abuse of discretion. See DL, 860 F.3d at 724. We find
no abuse of discretion and thus affirm the certification of a
class of pregnant UACs in ORR custody.
A.
The government raises arguments under each of Rule
23(a)’s four elements of numerosity, commonality, typicality,
and adequacy.
1.
The government’s primary contention is that the class
representatives (Doe and Roe) fail to meet Rule 23(a)(4) in that
they cannot “adequately protect the interests of the class.” Fed.
R. Civ. P. 23(a)(4). We are unpersuaded.
30
The adequacy requirement aims to ensure that absent class
members will not be bound by the outcome of a suit in which
they were not competently and fairly represented. See Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Adequacy
embraces two components: the class representative (i) “must
not have antagonistic or conflicting interests with the unnamed
members of the class” and (ii) “must appear able to vigorously
prosecute the interests of the class through qualified counsel.”
Twelve John Does v. District of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997) (quoting Nat’l Ass’n of Regional Med.
Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir.
1976)). The government advances arguments under each of
those prongs.
a.
The government first contends that Doe and Roe are
poorly positioned to vigorously prosecute the class’s interests.
That is because, the government submits, Doe’s and Roe’s
individual claims are moot, and they thus lack an ongoing stake
in the case. Mootness alone, though, does not establish their
inadequacy as representatives.
Though the mootness of named plaintiffs’ claims can raise
“adequacy concerns,” see DL, 860 F.3d at 726, the very
existence of the inherently-transitory exception disproves any
suggestion that the mootness of a plaintiff’s claims necessarily
demonstrates her inadequacy as a representative. The entire
object of that exception is to allow a class action to proceed
even though the inherently fleeting nature of the class’s claims
will predictably render a given class member’s claims moot
before the class is certified. Our decisions thus find it “clear
that mootness and adequacy are ‘separate issues’ and that
plaintiffs with moot claims may adequately represent a class.”
Id. (alteration omitted) (quoting Geraghty, 445 U.S. at 407).
31
And the Supreme Court has specifically recognized that a
plaintiff with a moot claim may serve as a class representative.
See Geraghty, 445 U.S. at 404; Sosna, 419 U.S. at 402–03.
The government, beyond noting the mootness of Doe’s
and Roe’s claims, identifies no reason to doubt their ability to
vigorously press the action. The government suggests that
their claims were live for a briefer period than was true in other
cases in which class representatives were deemed adequate
notwithstanding mootness. But the ostensibly short-lived
duration of the representatives’ claims only reinforces their
inherently transitory nature; it says nothing on its own about
the representatives’ fitness or commitment to prosecuting the
action. Indeed, the ephemerality of individual claims makes
class-action treatment “particularly important” so as to
“ensur[e] that a justiciable claim is before the Court.” Gratz v.
Bollinger, 539 U.S. 244, 268 (2003) (citation omitted).
The government also asserts that the issue of abortion is
one as to which a person’s views are known to evolve over
time, such that Doe and Roe, the government supposes, might
become less enthusiastic proponents of the class’s claims
before the litigation ends. The government’s assertion is
unsupported speculation, though, and could equally be said of
any class representative in any abortion case.
The district court, in short, saw no reason to question the
class representatives’ ability “to vigorously prosecute the
interests of the class through qualified counsel.” Twelve John
Does, 117 F.3d at 575 (quoting Nat’l Ass’n of Regional Med.
Programs, 551 F.2d at 345). The government does not
challenge the district court’s assessment that class counsel is
“fully competent and qualified.” Garza, 304 F. Supp. 3d at 158
n.3. And as for the representatives, the mootness of their
claims affords no ground for us to find an abuse of discretion
32
in the district court’s conclusion that they can adequately press
the class’s interests. See DL, 860 F.3d at 726.
b.
The government next contends that the class
representatives “have antagonistic or conflicting interests with
the unnamed members of the class.” Twelve John Does, 117
F.3d at 575 (quoting Nat’l Ass’n of Regional Med. Programs¸
551 F.2d at 345). The government’s argument on that score
centers on one consideration: that most members of the class,
which includes all pregnant unaccompanied minors in ORR
custody, will ultimately choose to carry their pregnancies to
term rather than obtain an abortion. As a result, the
government urges, the class representatives’ interests conflict
with those of the unnamed class members.
i. In our view, the fact that the class representatives chose
to terminate their pregnancies, whereas the lion’s share of the
class might make the opposite choice, entails no “conflict[] of
interest between named parties and the class they seek to
represent” for purposes of Rule 23(a)(4)’s adequacy standard.
Amchem, 521 U.S. at 625. The constitutional right asserted by
the class is a woman’s “right to choose to terminate her
pregnancy” before viability. Stenberg v. Carhart, 530 U.S.
914, 921 (2000) (quoting Casey, 505 U.S. at 870 (plurality)).
The class members all assert a common entitlement to make
that choice on their own, free from any veto power retained
(unconstitutionally, the class says) by ORR. And on the
plaintiffs’ theory, they are all denied the right to terminate their
pregnancies by a veto power that effectively supersedes it. The
class representatives are suited to press that interest on the
class’s behalf, even if various class members might make
varying ultimate decisions about how to exercise their choice.
33
The government posits that class members who decide to
carry their pregnancies to term “likely want pregnancy-related,
delivery, and post-partum care” rather than the “abortion-
focused remedy ordered by the [district] court.” Gov’t Br. 30.
But the court’s preliminary injunction bars interfering not only
with “abortion counseling” and “an abortion” but also with
“pregnancy-related care.” Prelim. Inj. Order (Apr. 16, 2018),
G.C.A. 275. At any rate, there is no reason to think that the
district court’s bar against interfering with a UAC’s choice to
obtain an abortion would somehow diminish the services
afforded to a UAC who instead carries her pregnancy to term.
One minor’s choice has no necessary effect on the care given
to another minor. The remedy sought by the class thus will
have no deleterious effect on the care received by absent class
members.
ii. To be sure, as the government has argued, some
pregnant unaccompanied minors who wish to carry to term
might have “little interest in challenging” the veto power since
it does not ultimately impede their ability to continue their
pregnancies. Gov’t Opp’n to Class Certification 19 (filed July
30, 2018), G.C.A. 67. Those minors thus might be uninterested
in pursuing the class action and in vindicating their right to
terminate their pregnancies without undue government
interference.
But the presence of uninterested individuals in a class does
not compel a finding of inadequacy. A basic object of the class
action device is to permit an aggregated suit when an individual
might forgo pressing a free-standing claim because she has too
little at stake on her own. See Amchem, 521 U.S. at 617. A
lack of interest among absent class members, then, is an
everyday feature of class actions.
34
That is frequently so in the context of class actions for
injunctive or declaratory relief under Rule 23(b)(2), like the
action in this case. A principal purpose of Rule 23(b)(2) class
actions is to enable class resolution of civil-rights claims
alleging classwide deprivations of protected rights. See Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 361 (2011). “The
key to the (b)(2) class is the indivisible nature of the injunctive
or declaratory remedy warranted—the notion that the conduct
is such that it can be enjoined or declared unlawful only as to
all of the class members or as to none of them.” Id. at 360
(internal quotation marks omitted). The Rule thus authorizes
class actions for injunctive or declaratory relief when “the party
opposing the class has acted . . . on grounds that apply generally
to the class.” Fed. R. Civ. P. 23(b)(2).
When a challenged policy is generally applicable to the
class for purposes of Rule 23(b)(2), the history of the Rule
confirms the propriety of certifying the class even if some
members may be uninterested in pressing the claims. The
Advisory Committee explained that a challenged action “is
directed to a class within the meaning of this subdivision even
if it has taken effect or is threatened only as to one or a few
members of the class.” Note of Advisory Committee on
Rules—1966 Amendment, 28 U.S.C. App. at 812 (2012)
(“1966 Adv. Comm. Note”); cf. Wal-Mart, 564 U.S. at 361
(relying on 1966 Adv. Comm. Note to interpret Rule 23(b)(2)).
For instance, (b)(2) classes challenging voter-qualification
laws often include anyone disenfranchised by the challenged
laws. That is so regardless of whether class members
ultimately intend (or are even registered) to vote. E.g., Frank
v. Walker, 196 F. Supp. 3d 893, 901 (E.D. Wis. 2016) (class
defined as “all those eligible to vote in Wisconsin who cannot
with reasonable effort obtain a qualifying photo ID”), appeal
filed, No. 16-3052 (7th Cir. July 28, 2016); Woodsum v. Boyd,
35
341 F. Supp. 448, 450 (M.D. Fla. 1972) (class defined as “those
bona fide residents . . . who do not fulfill the durational
residency requirements of [the challenged law] but who are
otherwise qualified to register and vote”); Ferguson v.
Williams, 330 F. Supp. 1012, 1018 (N.D. Miss. 1971) (class
defined as “citizens . . . who would be qualified to vote in the
1971 state elections except for their failure to register four
months prior to November 2”), vacated on other grounds, 405
U.S. 1036 (1972).
Here, likewise, the class represented by Doe and Roe can
encompass anyone whose right to terminate her pregnancy is
allegedly infringed by the government’s policy, regardless of
whether she ultimately intends to exercise her right. The ORR
Director’s veto power acts on grounds that “apply generally to
the class,” Fed. R. Civ. P. 23(b)(2), because it allegedly denies
to any pregnant UAC the right and ability to terminate her
pregnancy. Even if some class members are uninterested in the
claims because they are not among the “members of the class”
against whom the challenged policy “has taken effect” in a way
that matters to them, 1966 Adv. Comm. Note, the class
definition need not exclude them.
Our dissenting colleague warns that such an approach
would permit classes that are, in his view, self-evidently too
broad. See Dissenting Op. 10. For example, he hypothesizes,
it would allow certification of a class of all federal employees
in a First Amendment challenge to a ban on federal employees’
membership in particular organizations. See id. But analogous
classes are not unfamiliar.
Thus, in United States Civil Service Commission v.
National Ass’n of Letter Carriers, AFL-CIO, the Supreme
Court addressed a First Amendment challenge involving a
materially identical (b)(2) class—described as “all federal
36
employees”—to the Hatch Act’s bar against certain political
activity by federal workers, even though some class members
presumably had no desire to engage in the prohibited conduct.
See 413 U.S. 548, 551 (1973). Similarly, in Sugarman v.
Dougall, a challenge to a citizenship requirement for civil
service positions, the (b)(2) class was defined to include
anyone who would “otherwise be eligible to compete for
employment,” not only those in fact interested in competing.
413 U.S. 634, 636 n.2 (1973) (emphasis added).
Those examples exhibit the principle that “[a]ll the class
members need not be aggrieved by or desire to challenge
defendant’s conduct in order for some of them to seek relief
under Rule 23(b)(2).” 7AA Charles Alan Wright et al., Federal
Practice and Procedure § 1775 (3d ed. 2019). Rather, “whether
everyone in the class is interested in challenging the policy at
issue . . . is largely irrelevant.” 2 William B. Rubenstein,
Newberg on Class Actions § 4:28 (5th ed. 2018).
iii. Shifting course, the government submits that, among
the absent class members, some pregnant minors “may
strongly oppose abortions,” and they thus may “support ORR’s
challenged polic[y]” and its no-exceptions mandate to carry a
pregnancy to term including in cases of rape. Gov’t Br. 30.
Because those minors disapprove of the class’s objectives on
ideological grounds (presumably including as a matter of
sincere religious and moral conviction), the government
contends, they are not adequately represented by Doe and Roe.
The government, though, did not argue to the district court
that the potential presence in the class of minors who oppose
abortion on such ideological grounds precludes class
certification. If faced with an objection of that kind, a district
court could consider measures such as “narrow[ing] the
definition of the class, divid[ing] the proposed class into
37
subclasses[,] and permit[ting] class members to opt out of the
class.” Wagner, 836 F.2d at 590 (footnotes omitted). The
government did argue in the district court, as noted, that some
class members wish to carry their pregnancies to term and so
may be uninterested in challenging the policy (an argument we
have just considered, pp. 33–36, supra). But the government
at no point contended in the district court, as it does now, that
some of those minors may strongly oppose abortion and that
such ideological opposition affords added grounds to deny
class certification. That argument was never made.
In that respect, we do not understand our dissenting
colleague’s misimpression that we see no difference between
(i) pregnant minors who are “merely uninterested” in
challenging the ORR policy because they seek to carry their
pregnancy to term, and (ii) pregnant minors who are opposed
to abortion on religious or moral grounds. Dissenting Op. 8.
Insofar as the failure to draw any distinction between those two
groups may be “quite intolerant of religious views,” id., we
draw exactly that distinction. The government opposed class
certification in the district court on the ground that the class
includes minors uninterested in pressing the claims; but it made
no argument that certification should be denied because the
class includes minors opposed to abortion.
We are hard-pressed in these circumstances to find an
abuse of discretion in the district court’s failure to narrow the
class definition on a ground that the government did not assert
to the court. See United States v. Regan, 627 F.3d 1348, 1354
(10th Cir. 2010). True, the party seeking certification bears the
burden of showing compliance with Rule 23. Wal-Mart, 564
U.S. at 350. But that does not require anticipating and
affirmatively disproving every ostensible conflict that might
later be pressed in an appeal. None of the decisions cited by
the government in which a court of appeals examined an
38
asserted conflict between the representatives and the absent
class members involved a ground that had not already been
considered by the district court. See Spano v. Boeing Co., 633
F.3d 574, 586–88 (7th Cir. 2011) (reviewing Spano v. Boeing
Co., No. 06-0743-DRH, 2008 WL 4449516, at *7 (S.D. Ill.
Sept. 29, 2008)); Mayfield v. Dalton, 109 F.3d 1423, 1427 (9th
Cir. 1997); Schy v. Susquehanna Corp., 419 F.2d 1112, 1117
(7th Cir. 1970).
Even if the government had argued in the district court that
Doe and Roe could not adequately represent the class because
it includes minors who oppose abortion on ideological
grounds, such a circumstance, standing alone, would not be
considered a conflict of interest of a kind that precludes
certifying a class. There might often be a possibility that some
absent class members possess conscientious beliefs running
counter to an interest in redressing an alleged infringement of
their rights. Indeed, “[i]n any conceivable case, some of the
members of the class will wish to assert their rights while
others will not wish to do so.” Charles Alan Wright, Class
Actions, 47 F.R.D. 169, 174 (1969).
That is especially so in the civil rights cases that make up
the heartland of actions under Rule 23(b)(2), which by nature
can involve polarizing issues. In such situations, courts have
been “reluctant to find the class representatives inadequate”
even if “some class members have an explicit desire to
maintain the status quo.” 2 Rubenstein, Newberg on Class
Actions § 3:64; cf. Charise Cheney, Blacks on Brown: Intra-
Community Debates over School Desegregation in Topeka,
Kansas, 1941–1955, 42 W. Hist. Q. 481 (2001) (describing
opposition to school desegregation among black Topekans in
the lead-up to Brown v. Board of Education, 347 U.S. 483
(1954)). As courts have long recognized, “[i]t is not ‘fatal if
some members of the class might prefer not to have violations
39
of their rights remedied.’” Lanner v. Wimmer, 662 F.2d 1349,
1357 (10th Cir. 1981) (quoting U.S. Fid. & Guar. Co. v. Lord,
585 F.2d 860, 873 (8th Cir. 1978)).
In that respect, the government’s reliance on decisions like
Mayfield v. Dalton, 109 F.3d 1423, falls short. In that case,
service members sought to challenge a DNA collection
program established by the military to assist in the
identification of remains. The class representatives were
deemed inadequate because a significant share of the proposed
class might favor retaining the challenged policy. See id. at
1427. There, though, the class members had a concrete interest
in preserving a means by which their remains could be
identified: as the district court had observed, it was not the
military but rather “the next of kin of service members who
will derive the greatest benefit, and solace, from the speedy and
definite identification of the remains of their loved ones.”
Mayfield v. Dalton, 901 F. Supp. 300, 304 (D. Haw. 1995).
In that context, the Ninth Circuit determined that “[t]his is
not [merely] a case where some class members might prefer to
leave [a] violation of their rights unremedied.” Mayfield, 109
F.3d at 1427. Instead, “[w]e have here a conflict between the
interests of the putative representative and members of the
class.” Id.; accord Spano, 633 F.3d at 587 (finding
representatives inadequate because the class was defined “so
broadly that some members will actually be harmed by [the]
relief” sought in the action). A similar sort of conflict might
be present in hypothetical claims of the sort envisioned by our
dissenting colleague: if, say, a class of employees challenging
a restriction on employing neo-Nazi sympathizers were
defined to include Jewish employees, the latter employees
would have to work alongside the former if the class succeeded
in lifting the restriction. See Dissenting Op. 10.
40
Assuming Mayfield was correctly decided, this case is
different. Here, insofar as the class includes pregnant
unaccompanied minors who are ideologically opposed to
abortion, the relief ultimately sought in the action would not
itself impose a tangible harm on them of the kind present in
situations like Mayfield. The ability of minors who may
sincerely oppose abortion to carry their pregnancies to term
would not be compromised by the grant of relief securing
another class member’s ability to make a different choice.
With regard to the formal inclusion of minors who oppose
abortion within the class definition during the pendency of the
action—as opposed to the effect on them of the relief
ultimately sought in the action—nothing is required of them
while the case proceeds to a result. See Phillips Petroleum Co.
v. Shutts, 472 U.S. 797, 810 (1985). Indeed, because there is
no notice given to absent class members in a (b)(2) action, see
In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002), putative
class members in (b)(2) cases may have no particular reason to
know they are nominally part of an ongoing action—they are,
after all, absent class members.
What about situations in which absent members do know
about a pending action they ideologically oppose, and also
learn about the class certification order and their formal
inclusion in the certified class? The Supreme Court has held
that “a desire to vindicate value interests”—i.e., ideological
interests—does not “provide a judicially cognizable interest”
sufficient to confer standing to bring an action. Diamond v.
Charles, 476 U.S. 54, 66–67 (1986). And that rule specifically
encompasses a “conscientious objection to abortion.” Id. Yet
if such an interest, standing alone, does not suffice to enable
bringing an action, it is unclear why it compels being excluded
from one. We are aware of no decision holding otherwise.
41
That is unsurprising, as a class might often include absent
members who, if alerted to their membership, would prefer to
be excluded from the action. Rule 23(b)(2)’s very design—
which, unlike Rule 23(b)(3), has no mandate for an opt-out
opportunity, see Veneman, 309 F.3d at 792—presupposes the
presence of some absent members who might exclude
themselves if given the chance: again, in “any conceivable
case, some of the members of the class . . . will not wish” to
“assert their rights.” Wright, 47 F.R.D. at 174. How, then,
would courts distinguish the circumstances in which subjective
opposition gives rise to a conflict of interest precluding class
certification from those in which it does not?
If, say, a Second Amendment claim were brought on
behalf of a class of persons subject to a firearms regulation,
would there be a need to deny class certification because some
absent members may strongly support gun-control measures
like the challenged one? Or if a (b)(2) challenge to the
consideration of race in a college-admissions process were
brought on behalf of all members of the allegedly disfavored
racial groups (e.g., Caucasian) denied admission—as was
precisely the case in Gratz v. Bollinger, 539 U.S. at 252–53—
should certification be denied because the class may include
absent members who ideologically support affirmative action?
That manner of logic could ultimately stymie certification in
virtually any (b)(2) case.
Our dissenting colleague’s responses to those situations
only confirms that (b)(2) classes can include ideologically
opposed members. With regard to the challenge to the firearms
regulation, our colleague says that the class would be limited
to those who “claim injury.” Dissenting Op. 14. But of course
a class could not in fact be defined simply as persons who
“claim injury”; and regardless, even in a class including only
those who, say, own firearms and are therefore subject to the
42
regulation, some members may still oppose the action because
they generally support gun-control measures. With regard to
the college-admissions challenge, our colleague notes that the
class in Gratz was limited to applicants who “suffered an
injury” when denied admission. Id. at 15. Again, though, some
of those rejected applicants may have opposed the suit based
on their support of affirmative action, yet they were still part of
the class.
Nothing in Rule 23 affords a basis for distinguishing
between class members ideologically opposed to the action in
Gratz and class members ideologically opposed to the action
in this case. Our colleague suggests that, in a case like Gratz,
a class member who supports affirmative action may be
“satisfied with the status quo” but still not be “opposed to the
recognition of the right not to be discriminated against.” Id. at
14. But that ostensible distinction is not discernible anywhere
in Rule 23. At any rate, the distinction depends on the level of
generality at which one conceives of the right: a class member
supportive of affirmative action might well oppose
“recognition of the right not to be discriminated against” when
it specifically concerns an asserted right to strict race
neutrality. The suggested distinction between supporting the
status quo and opposing the right is elusive in this case too.
Indeed, our colleague says that there is “hardly a differen[ce]”
between “people who support[] the Government’s challenged
policy” and people who “have moral/religious objections to
abortion.” Id. at 6.
The upshot is that, in a Rule 23(b)(2) action, there is no
fixed requirement to give absent class members who may be
ideologically opposed to the case the effective equivalent of an
opt-out from the action. After all, in a (b)(2) case, an
“injunction prohibiting a defendant’s action against ‘the class
as a whole’ would halt the action regardless whether some of
43
those affected might have withdrawn from the suit if given the
option.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530
(D.C. Cir. 2006) (emphasis added) (quoting Fed. R. Civ. P.
23(b)(2)); see Horton v. Goose Creek Indep. Sch. Dist., 690
F.2d 470, 487 n.32 (5th Cir. 1982). And while our dissenting
colleague hypothesizes that absent class members have a First
Amendment entitlement to be excluded from an action, see
Dissenting Op. 11—a view that could confer notice and opt-out
rights in many if not all (b)(2) actions—no one has asserted any
such entitlement at any point in this case.
iv. While our colleague does not indicate what would be
a proper class definition in this case, he believes the class
cannot include pregnant minors who oppose abortion on moral
or religious grounds. But a class definition that excludes
persons based on their ideological convictions would
necessarily turn on a person’s subjective (and possibly
unannounced) beliefs. Such a definition would be, in the
parlance of class actions, “unascertainable” or “indefinite,”
because membership is not readily discernable by objective
criteria. See 1 Rubenstein, Newberg on Class Actions § 3:3;
City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867
F.3d 434, 439 n.3 (3d Cir. 2017); Mullins v. Direct Dig., LLC,
795 F.3d 654, 657 (7th Cir. 2015).
Our sister circuits to have considered the implications of
an unascertainable (b)(2) class have fallen into two camps,
neither of which supports the narrowed class envisioned by our
colleague. In the first camp, an unascertainable class definition
is per se impermissible, even in (b)(2) actions. See 1
Rubenstein, Newberg on Class Actions § 3:7 n.9 (collecting
cases). In the second camp, an unascertainable class definition
presents no particular concern in a (b)(2) case, but only because
the precise membership of a (b)(2) class is considered largely
inconsequential: “the focus in a[ ](b)(2) class is more heavily
44
placed on the nature of the remedy sought, and . . . a remedy
obtained by one member will naturally affect the others, [so]
the identities of individual class members are less critical.”
Shelton v. Bledsoe, 775 F.3d 554, 561 (3d Cir. 2015); cf. Cole
v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016); Yaffe v.
Powers, 454 F.2d 1362, 1366 (1st Cir. 1972).
In either camp, as long as the relief sought in a (b)(2)
action is uniform and indivisible and the members of the class
are otherwise similarly situated, a district court need not
append to the class definition a carve-out for members who
subjectively oppose the action. And while our court has not
addressed whether Rule 23 contains an ascertainability
requirement for class certification, regardless, defining the
class to exclude minors who are ideologically opposed to
abortion would raise vagueness and manageability concerns
because of the difficulty of identifying which individual minors
subjectively have (or may develop) those beliefs.
We in no way question the sincerity and intensity of the
beliefs of persons who oppose abortion, including as a matter
of deep religious and moral conviction. See Stenberg, 530 U.S.
at 920. As the Supreme Court has recognized, many “believe
that life begins at conception and consequently that an abortion
is akin to causing the death of an innocent child; they recoil at
the thought of a law that would permit it.” Id. Many others
“fear that a law that forbids abortion would condemn many
American women to lives that lack dignity, depriving them of
equal liberty and leading those with least resources to undergo
illegal abortions with the attendant risks of death and
suffering.” Id. Notwithstanding the strength and sincerity of
the competing beliefs, for the reasons explained, we do not
understand the applicable precedents and governing principles
to compel finding an abuse of discretion in the district court’s
conclusion that Doe and Roe are adequate representatives.
45
c.
The government makes one final argument on the
adequacy of the class representatives, this one pertaining to
Roe alone. The government contends that she is an inadequate
representative because she was 19, rather than 17 as the
government previously believed, when in ORR custody and
thus never a member of the class she seeks to represent.
At the outset, we note that the government’s objection
affords no basis to set aside the class’s certification because
Doe could still serve as the class representative. In any event,
even with regard to Roe alone, the district court made a factual
finding that she was 17 years old based on her declaration to
that effect. See Garza, 304 F. Supp. 3d at 152. The
government, for its part, has introduced no evidence
substantiating its claim that she was 19 during the time in
question. We therefore have no basis to upset the district
court’s finding and no occasion to consider the legal effect of
her alleged non-membership in the class.
2.
The class certified by the district court also satisfies Rule
23(a)(2)’s commonality requirement and Rule 23(a)(3)’s
typicality requirement.
a.
The commonality requirement asks whether “there are
questions of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2). That requirement, the Supreme Court has explained,
serves as a “guidepost[] for determining whether under the
particular circumstances maintenance of a class action is
economical.” Wal-Mart, 564 U.S. at 349 n.5 (quoting Gen. Tel.
Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). If
46
the class members’ claims involve no common question of law
or fact, there will be “no cause to believe that all their claims
can productively be litigated at once.” Id. at 350.
Conversely, the commonality requirement is met if the
class’s claims “depend on a common contention . . . of such a
nature that it is capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one
stroke.” Id. “A common question,” in other words, “is one in
which the issue is susceptible to generalized, class-wide
proof.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
1051 (2016) (Roberts, C.J., concurring) (formatting modified
and citation omitted). The presence of a single such common
question can suffice to satisfy Rule 23(a)(2). See Wal-Mart,
564 U.S. at 359.
Here, the class presents “common contention[s] . . .
capable of classwide resolution,” such that it would be
“productive[]” and “economical” to consider the class’s claims
together. Id. at 349 n.5, 350. Consider the class’s core claim:
that the ORR Director’s veto power, exercised as a ban,
violates the class members’ protected right to choose to
terminate their pregnancies before viability. That policy
applies on uniform grounds applicable to every member of the
class, regardless of the circumstances of her pregnancy. Not
only do all class members present the same challenge to the
policy, but there also is no evident variation among them
concerning their ultimate entitlement to relief: if any person in
the class has a meritorious claim, they all do.
Correspondingly, the government’s arguments in
defending against that claim cut across the entire class. The
government maintains that denying a pregnant minor the
choice to obtain a pre-viability abortion while in ORR custody
47
works no deprivation of her due process rights because she can
seek to voluntarily depart the United States or she might be
released to a sponsor. Those arguments, by the government’s
logic, apply to the full class of pregnant minors in ORR
custody, underscoring the existence of common classwide
questions and the suitability of a classwide resolution.
The government notes the existence of certain factual
variations among the class members—namely, their age,
maturity, stage of pregnancy, mental health, length of
sponsorship search, and ability to return to country of origin.
See Gov’t Br. 33–34. But the class members assert an
entitlement to relief that is entirely unaffected by the myriad
factual differences noted by the government. The common
questions therefore are “apt to drive the resolution of the
litigation.” Wal-Mart, 564 U.S. at 350 (citation omitted).
b.
Typicality differs from commonality in that typicality
concerns the relationship between the representative’s
individual claims and the class’s claims rather than the
relatedness of the entire class’s claims. Yet they “[b]oth serve
as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical.”
Gen. Tel., 457 U.S. at 157 n.13. To that end, the two inquiries
“tend to merge.” Id.
The government’s typicality argument reiterates that Doe
and Roe sought to terminate their pregnancies whereas most
class members will seek to carry their pregnancies to term. But
to destroy typicality, a distinction must differentiate the
“claims or defenses” of the representatives from those of the
class. Fed. R. Civ. P. 23(a)(3) (emphasis added). As a result,
typicality is ordinarily met “if the claims or defenses of the
representatives and the members of the class stem from a single
48
event or a unitary course of conduct, or if they are based on the
same legal or remedial theory.” 7A Wright et al., Federal
Practice and Procedure § 1764 (footnote omitted).
Here, Doe and Roe allege they are subject to the same
policy that operates against every pregnant minor to deprive
her of her constitutionally protected right. Though absent class
members may elect to exercise their choice in a different
manner than Doe and Roe, the claims and defenses of the
representatives are substantially—arguably entirely—identical
to those of the class. And for the reasons just explained, the
factual variations noted by the government in arguing against
commonality also do not render the representatives’ claims
atypical. Rule 23(a)(3)’s typicality standard thus is satisfied.
3.
Finally, the government contends that if the class were
narrowed to embrace only those pregnant UACs who seek an
abortion, as the government thinks necessary, that class would
not be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). The government,
though, does not argue that there is any numerosity problem
with the class certified by the district court—i.e., pregnant
unaccompanied minors who are or will be in ORR custody.
And because we sustain that class definition, there is no
numerosity objection to consider.
It bears noting, though, that even as to a narrowed class of
the kind contemplated by the government, the government’s
numerosity argument would run into significant questions
about how to account for the class’s size. The government
stresses that it received 18 abortion requests in fiscal year 2017
and that classes containing fewer than 20 members generally
fall short of the numerosity requirement. See Gov’t Br. 36. But
there is nothing talismanic about the one-year timeframe hand-
49
picked by the government. Indeed, there presumably would be
a need to account for minors who will request abortions in
future years. And classes including future claimants generally
meet the numerosity requirement due to the “impracticality of
counting such class members, much less joining them.” 1
Rubenstein, Newberg on Class Actions § 3:15; see also Jones
v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975) (“Smaller
classes are less objectionable where . . . the plaintiff is seeking
injunctive relief on behalf of future class members as well as
past and present members.”).
Additionally, the government recently advised Congress
that the number of unaccompanied minors coming to the
country has dramatically risen of late. See Letter from Russell
T. Vought, Acting Dir., Office of Mgmt. & Budget, to U.S.
Cong. Leaders at 1–3 (May 1, 2019),
https://www.whitehouse.gov/wp-content/uploads/2019/05/
Pence.pdf; Letter from Kirstjen M. Nielsen, Sec’y of
Homeland Sec., to U.S. House of Representatives at 3 (Mar.
28, 2019), https://www.dhs.gov/sites/default/files/
publications/19_0328_Border-Situation-Update.pdf (“Nielsen
Letter”). That significant increase may in turn give rise to an
increased number of UACs seeking an abortion.
That population also presents non-numerical
considerations that might make joinder impracticable,
including the fluidity of ORR custody, the dispersion of class
members across the country, and their limited resources. See
Garza, 304 F. Supp. 3d at 155. Classes have been certified in
like circumstances even if they have fewer than 20 members.
See Jackson v. Danberg, 240 F.R.D. 145, 147–48 (D. Del.
2007) (16 members); Bublitz v. E.I. du Pont de Nemours &
Co., 202 F.R.D. 251, 255–56 (S.D. Iowa 2001) (17 members);
Gaspar v. Linvatec Corp., 167 F.R.D. 51, 55–57 (N.D. Ill.
1996) (18 members); Manning v. Princeton Consumer Disc.
50
Co., Inc., 390 F. Supp. 320, 324–25 (E.D. Pa. 1975) (15
members), aff’d, 533 F.2d 102 (3d Cir. 1976).
In the end, though, we need not decide whether a narrowed
class would satisfy the numerosity standard. We sustain the
class certified by the district court, and the government has
lodged no numerosity challenge to that class.
* * *
The district court did not abuse its discretion in certifying
a class consisting of all pregnant unaccompanied minors who
are or will be in ORR custody. Both sides to the dispute thus
can economically deal with an issue affecting many individuals
in one fell swoop, consistent with the objectives of Rule 23.
B.
The presence in the class of individuals who wish to carry
their pregnancies to term, for the reasons explained, does not
pose an issue under Rule 23(a). But could it raise an issue
under Article III of the Constitution—in particular, under
Article III’s basic requirement that a plaintiff bringing an
action demonstrate a constitutionally cognizable injury? See,
e.g., Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
Although the government does not argue the point, one could
assert that a UAC who wishes to carry her pregnancy to term
would lack the requisite injury to sue if she attempted to bring
this challenge on her own. If so, would her status as an absent
class member present a concern under Article III?
We take up the question in light of our obligation to assure
ourselves of jurisdiction, see Exelon Corp. v. FERC, 911 F.3d
1236, 1240 (D.C. Cir. 2018), and we see no Article III problem,
even assuming that absent class members who wish to carry
their pregnancies to term lack an Article III injury.
51
It is settled that in a case involving joined, individual
plaintiffs bringing a shared claim seeking a single remedy,
Article III’s case-or-controversy requirement is satisfied if one
plaintiff can establish injury and standing. See, e.g., Rumsfeld
v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547
U.S. 47, 53 n.2 (2006). In that event, it is immaterial that other
plaintiffs might be unable to demonstrate their own standing.
See id.; Bowsher v. Synar, 478 U.S. 714, 721 (1986); New
Jersey v. EPA, 703 F.3d 110, 115 (D.C. Cir. 2012); Nat’l
Mining Ass’n v. U.S. Dep’t of the Interior, 70 F.3d 1345, 1349
(D.C. Cir. 1995). The “irreducible constitutional minimum” of
Article III, id. at 1355, that is, is “[a]t least one plaintiff”—and
only one plaintiff—with “standing to seek each form of relief
requested in the complaint,” Town of Chester v. LaRoe Estates,
Inc., 137 S. Ct. 1645, 1651 (2017). The same “one plaintiff”
rule presumably applies with equal force to a Rule 23(b)(2)
class action advancing a uniform claim and seeking uniform
injunctive and declaratory relief.
There is some support for the view that an even more
liberal standing rule applies in the class-action context, and that
the standing of absent members is always irrelevant in class
actions regardless of whether the class members seek uniform
relief. See Lewis v. Casey, 518 U.S. 343, 395 (1996) (Souter,
J., concurring in part, dissenting in part, and concurring in the
judgment). We need not reach that question here, though,
because this class action satisfies Article III even under the
narrower one-plaintiff rule that governs joined claims seeking
a uniform remedy. To be sure, the one plaintiff with standing
must be a class representative—an absent class member’s
individual standing will not suffice. See Warth v. Seldin, 422
U.S. 490, 502 (1975). But it is undisputed here that at least one
class representative possesses standing.
52
Our dissenting colleague acknowledges the general rule
that a single plaintiff with standing satisfies Article III in a case
involving joined plaintiffs. Dissenting Op. 12. In his view,
though, that understanding does not control in the context of a
class action because, he submits, absent class members are
full-fledged parties to a case in a way that joined plaintiffs are
not. That counterintuitive proposition—if anything, one would
expect joined plaintiffs to be full-fledged parties more so than
absent class members—is unfounded. There is no reason to
think that the one-plaintiff rule has lesser application in the
class-action context than in the joined-plaintiffs context.
For starters, any suggestion that absent class members
(unlike joined plaintiffs) must themselves demonstrate
standing is belied by the accepted understanding that only one
of the class representatives needs standing. Cf. Frank v. Gaos,
139 S. Ct. 1041, 1046 (2019) (per curiam) (observing that
“federal courts lack jurisdiction if no named plaintiff has
standing” and remanding for a determination whether “any
named plaintiff” has standing (emphasis added)). If even a
class representative’s individual standing is immaterial as long
as one representative has standing, an absent class member’s
individual standing must also be immaterial in that instance.
In addition, there is no support for our colleague’s
supposition that, when there is one plaintiff with standing in a
multi-plaintiff case, other plaintiffs who lack individual
standing are some inferior type of quasi-party rather than
full-fledged parties. To the contrary, no decision suggests that
joined plaintiffs in a case, even if they lack individual standing,
can avoid the preclusive effects of a judgment against them.
Indeed, our court has reduced an award of attorneys’ fees to
exclude the hours devoted to supporting every plaintiff’s
standing because only one plaintiff with standing is needed.
New Jersey, 703 F.3d at 115. Those hours would have been
53
well spent if the additional plaintiffs needed to prove their own
standing to avoid some lesser, quasi-party status.
Accordingly, the Supreme Court has stated, with no quasi-
party proviso of the kind envisioned by our colleague, that “the
presence of one party with standing is sufficient to satisfy
Article III’s case-or-controversy requirement.” FAIR, 547
U.S. at 52 n.2. That rule governs here. As a result, the
inclusion in the class of unaccompanied minors who desire to
carry their pregnancies to term no more gives rise to an Article
III concern than it poses a problem under Rule 23(a).
IV.
Having established our jurisdiction and having sustained
the class’s certification, we finally come to the merits of the
preliminary injunction granted by the district court. The
decision whether to enter a preliminary injunction turns on four
factors: (i) whether the plaintiff is likely to succeed on the
merits of the action; (ii) whether she will suffer irreparable
harm absent an injunction; (iii) whether the balance of the
equities tips in her favor; and (iv) whether an injunction is in
the public interest. See Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). We review the district court’s legal
conclusions de novo and its balancing of those factors for abuse
of discretion. See Doe v. Mattis, 889 F.3d 745, 751 (D.C. Cir.
2018).
The government asks us to set aside two components of
the district court’s preliminary injunction: (i) the injunction’s
central provision barring interference with a class member’s
access to a pre-viability abortion; and (ii) the injunction’s
prohibition against disclosing, or forcing a class member to
disclose, the fact of her pregnancy and her abortion decision.
We sustain the first provision protecting access to a pre-
54
viability abortion, but we set aside the disclosure-related
provision and remand for further explanation.
A.
We first consider the portion of the district court’s order
enjoining the government from interfering with or obstructing
class members’ access to pre-viability abortions and
abortion-related care. We conclude that the plaintiffs have
established each of the four preliminary-injunction factors with
respect to the abortion-access claim.
1.
The first preliminary-injunction factor concerns whether
the plaintiff has shown a likelihood of success on the merits.
Here, the parties agree on the basic legal principles governing
our review.
The Supreme Court’s precedents establish “that the
Constitution offers basic protection to the woman’s right to
choose.” Stenberg, 530 U.S. at 921 (first citing Casey, 505
U.S. 833; and then citing Roe v. Wade, 410 U.S. 113 (1973)).
In particular, “before viability the woman has a right to choose
to terminate her pregnancy.” Id. (formatting modified)
(quoting Casey, 505 U.S. at 870 (plurality)). The government
may not “impose[] an undue burden on the woman’s decision
before fetal viability.” Id. (quoting Casey, 505 U.S. at 877
(plurality)). And an “undue burden is shorthand for the
conclusion that a state regulation has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking
[a pre-viability] abortion.” Id. (alteration omitted) (quoting
Casey, 505 U.S. at 877 (plurality)).
Importantly, the government does not dispute the
applicability of those settled principles to unaccompanied
55
minors in ORR custody. The district court held that the
“[p]laintiffs’ Fifth Amendment right to decide whether to
continue or terminate their pregnancies is not diminished by
their status as undocumented immigrants.” Garza, 304 F.
Supp. 3d at 162 n.5. The government did not contend
otherwise in the district court, see id., and does not appeal the
district court’s conclusion to that effect, “presumably based on
its reading of Supreme Court precedent.” Garza, 874 F.3d at
753 (Kavanaugh, J., dissenting). We thus take the case on a
common understanding that the class members have a
constitutionally protected right to terminate their pregnancies
before viability and that the government cannot impose an
undue burden on that choice.
Because this case involves minors, the Supreme Court’s
precedents concerning parental consent also bear on our
analysis. The Court has held that the government may
condition a minor’s access to an abortion on parental consent
only if the minor is provided a bypass mechanism. See
Lambert v. Wicklund, 520 U.S. 292, 294 (1997) (per curiam);
Bellotti v. Baird, 443 U.S. 622, 643 (1979) (opinion of Powell,
J.). That bypass must, among other things, provide the minor
an opportunity to show she is sufficiently mature to make the
decision on her own (or that, immaturity notwithstanding, an
abortion is in her best interest). See Ohio v. Akron Ctr. for
Reproductive Health, 497 U.S. 502, 511–13 (1990); Bellotti,
443 U.S. at 643–44 (opinion of Powell, J.).
The government thus acknowledges that, under the
undue-burden framework, a state could not simply ban minors
from choosing to terminate a pre-viability pregnancy. And the
government, as noted, accepts in this case that the undue-
burden framework fully applies to unaccompanied minors in
ORR custody. Yet there is no question that, under ORR’s
challenged policy, the Director bars those minors from
56
accessing a pre-viability abortion. How, then, does the
government defend ORR’s policy?
First, the government contends that permitting
unaccompanied minors in its custody to access pre-viability
abortions requires it to “facilitate” abortions, which the
government says it is not obligated to do. Second, the
government asserts that unaccompanied minors may
voluntarily depart the country and that the ban thus does not
impose any cognizable burden. Finally, the government argues
that, because many unaccompanied minors are released to
sponsors, banning abortions while in ORR custody does not
impose an undue burden. We address those arguments in order
and conclude that the plaintiffs have shown a likelihood of
success on each.
Notably, our dissenting colleague likewise does not accept
any of the government’s arguments for denying UACs access
to a pre-viability abortion. Instead, as we explain below, our
colleague believes the government should be permitted to
delay access to a pre-viability abortion for a limited period in
which it can continue searching for a suitable sponsor. But any
delay, our colleague allows, must end if the pregnancy
“come[s] close to viability.” Dissenting Op. 16–17. Our
colleague therefore agrees with us in rejecting the
government’s central submission: that it can deny abortion
access altogether for unaccompanied minors in ORR custody.
a.
The government first argues that ORR’s policy is not a ban
on access to an abortion but rather is a refusal to subsidize
abortion. The government thereby seeks to come within the
fold of Supreme Court decisions holding that an individual’s
right to obtain an abortion does not generally include a right to
have the government fund it. See Rust v. Sullivan, 500 U.S.
57
173, 201–03 (1991); Webster v. Reproductive Health Servs.,
492 U.S. 490, 509 (1989); Harris v. McRae, 448 U.S. 297,
317–18 (1980); Poelker v. Doe, 432 U.S. 519, 519–21 (1977)
(per curiam); Maher v. Roe, 432 U.S. 464, 475–77 (1977).
Those decisions are grounded in the notion that the “Due
Process Clauses generally confer no affirmative right to
governmental aid.” Webster, 492 U.S. at 507 (quoting
DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S.
189, 196 (1989)). Thus, the government can fund and provide
medical services incident to childbirth but not abortions, see id.
at 509–10; McRae, 448 U.S. at 317–18; Poelker, 432 U.S. at
519–21; Maher, 432 U.S. at 475–77, and can prohibit
recipients of federal funding from using the funds for
abortion-related activities, Rust, 500 U.S. at 201–03.
i. The government’s effort to situate this case in that line
of precedents is misconceived. This case does not involve
government funding of abortions. A preexisting policy
specifies that ORR funding is not to be used to pay for abortion
services (except with the Director’s approval in cases of rape,
incest, or danger to the pregnant minor’s life). See
Memorandum from David Siegel, Acting Dir., Office of
Refugee Resettlement, on Medical Services Requiring
Heightened ORR Involvement (Mar. 21, 2008),
https://perma.cc/LDN8-JNL5.
Jane Doe, for example, secured private funding and
transportation for the abortion she sought to access. Yet
Director Lloyd still denied the shelter authorization to permit
Doe to leave the facility for the procedure. That is not a refusal
to fund an abortion; it is a refusal to allow it.
The government seeks to invoke the funding decisions in
service of the more abstract proposition that it need not
“commit any resources to facilitating abortions.” Gov’t Br. 40
58
(quoting Webster, 492 U.S. at 511). But even if we assume that
those decisions support a general “non-facilitation” principle,
they are of no help to the government here. Consider the
specific government conduct at issue. The government cites
the need to “maintain[] appropriate custody over the child”
during the procedure and “monitor the child’s health”
immediately afterward as a form of “facilitation.” Gov’t Br.
40–41. But the government is obligated to “maintain
appropriate custody” over a UAC and “monitor the child’s
health” regardless of any decision about an abortion. See
6 U.S.C. § 279. If those costs must be incurred regardless, and
if a UAC secures private funding for an abortion procedure and
associated travel expenses, what “facilitation” is left?
The government points to a need to “provide direction to
the shelter on its role in connection with the procedure” and to
“draft and execute approval documents”—which appear to be
essentially ministerial functions associated with any procedure
for any medical condition. Gov’t Br. 41. Such functions are a
far cry from funding of abortions. And when we consider the
Supreme Court’s funding decisions alongside its decisions
establishing a constitutional right to terminate a pregnancy
pre-viability, we do not read the former decisions to mean that
the government can compel a minor to carry her pregnancy to
term against her wishes so that the government can be relieved
of a self-imposed administrative requirement.
In that respect, the government’s effort to extract its
non-facilitation principle from the Supreme Court’s funding
decisions fundamentally misapprehends those precedents.
Those decisions are rooted in the idea that, “although
government may not place obstacles in the path of a woman’s
exercise of her freedom of choice, it need not remove those
obstacles not of its own creation.” McRae, 448 U.S. at 316
 59
(emphasis added). Here, though, the government asserts that it
need not remove obstacles that are of its own creation.
The “facilitation” the government says it wants to avoid
involves constraints it imposed on itself: an unaccompanied
minor’s abortion hinges on ORR’s drafting and executing
approval documents only because ORR itself has conditioned
abortion access on its execution of approval documents. But if
the government could create such a requirement for itself and
then refuse to satisfy it as a form of “non-facilitation,” the right
to terminate a pregnancy before viability could be entirely
subsumed by the principle recognized in the funding cases.
To say that the government has an interest in declining to
satisfy self-imposed constraints on abortion, then, would be to
say that it has a cognizable interest in blocking abortion. That
is, whereas the funding cases involved an interest in not
“facilitating” abortion in the sense of not affirmatively funding
abortion, here, the claimed interest in not “facilitating” an
abortion amounts to an interest in not allowing abortion. But
as the Supreme Court’s precedents establish, a “purpose or
effect of placing a substantial obstacle in the path of a woman
seeking an abortion” is by definition an impermissible, “undue
burden.” Stenberg, 530 U.S. at 921 (quoting Casey, 505 U.S.
at 877 (plurality)). The government’s interpretation of the
funding decisions would render that understanding a nullity.
For essentially the same reasons, the government is not
helped by tying its non-facilitation interest to its “important
and legitimate interest in potential life.” Casey, 505 U.S. at
870 (plurality) (quoting Roe, 410 U.S. at 163)). That interest,
according to the Supreme Court, must be pursued through
means “calculated to inform the woman’s free choice, not
hinder it.” Id. at 877 (plurality). Here, though, the ORR policy
60
is calculated to hinder—indeed, disallow—an unaccompanied
minor’s choice to terminate her pregnancy.
The class members, in short, do not assert an “affirmative
right to governmental aid.” Webster, 492 U.S. at 507 (citation
omitted). They instead ask for the government to step out of
the way. We thus cannot accept the government’s effort to
reconceive of ORR’s no-exceptions ban on access to abortion
as a mere refusal to “facilitate” abortion.
ii. What the government deems “facilitation” that it wants
to steer clear of giving to an unaccompanied minor, moreover,
is something it willingly gives to all others in federal custody.
Pregnant adults in immigration custody are held by DHS,
which allows access to abortion, as does the Bureau of Prisons
for federal inmates. See ICE Guidelines, Detention Standard
4.4, Medical Care, https://www.ice.gov/doclib/
detention-standards/2011/4-4.pdf; 28 C.F.R. § 551.23. The
government, then, is sensitive to the asserted burden of
“facilitating” abortions solely when it comes to minors in
immigration custody. The result is that a 17-year-old (or even
someone considerably younger) is compelled to carry her
pregnancy to term against her wishes, cf. Doe v. ORR, 884 F.3d
269 (5th Cir. 2018) (per curiam) (14-year-old pregnant minor
in ORR custody), whereas an 18-year-old can choose
otherwise.
Consider the circumstances of Jane Doe’s pregnancy.
Recall that Director Lloyd barred her Texas shelter from
releasing her for a (privately funded) abortion even though she
qualified for an abortion under Texas law. At the time, she was
at least 14 weeks pregnant and 17 years old. She turned 18
several weeks later, at a time she still would have been
pregnant had ORR’s refusal to allow an abortion stood. But
while the federal government permits a person in immigration
61
custody at age 18 to obtain an abortion, Doe’s pregnancy
presumably would have become post-viability by that time,
such that her right to seek a pre-viability abortion would have
expired. The government’s policy thus would have denied her
access to an abortion while she had that right, only to allow her
access when it was too late.
Or consider the implications of the government’s
on-and-off interest in “non-facilitation” if Doe’s pregnancy
still would have been pre-viability when she turned 18. In that
situation, ORR’s policy would have simply forced her to wait
a significant number of weeks to obtain a pre-viability
abortion, pending her inevitable transfer from one form of
government custody (ORR) in which abortion is barred to
another (DHS) in which it is allowed. Why require her to wait
several weeks for a later-term abortion that is sure to occur
rather than permit her to obtain it earlier in her pregnancy?
Solely so that the procedure then happens on DHS’s watch
rather than ORR’s.
Those unjustified and anomalous disparities substantially
undercut the government’s reliance on its ostensible interest in
non-facilitation. And they reinforce the inapplicability of the
funding decisions in this case.
b.
The government next contends that, even if ORR’s policy
works as a ban on access to an abortion rather than as a mere
withholding of funding, an unaccompanied minor can easily
avoid the ban by seeking voluntary departure from the United
States. And because she could readily avoid the ORR ban by
making use of voluntary departure, the argument goes, the ban
does not impose any cognizable burden—much less an undue
burden—on her choice to terminate her pregnancy. The
government’s argument is misguided.
62
To see why, think about the government’s argument in the
context of the Supreme Court’s decision in Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292 (2016). There, the Court
invalidated Texas laws that had the effect of significantly
reducing the number of available abortion providers in the
State and forcing women to travel longer distances for an
abortion without an offsetting health benefit. The Court held
that the laws imposed an undue burden on access to abortion.
But under the logic of the voluntary-departure argument the
government now advances here, the Texas laws struck down in
Whole Woman’s Health in fact imposed no undue burden
because women desiring an abortion could always travel to
another state.
That sort of argument presumably could not have carried
the day in Whole Woman’s Health. And the government’s
voluntary-departure argument cannot carry the day here either.
A state could not ban abortions outright on the theory that
pregnant women can just go elsewhere. And the federal
government has no greater leeway to ban abortions on the
theory that pregnant women can go elsewhere via voluntary
departure. In a number of respects, in fact, the voluntary-
departure argument pressed by the government here is even
less tenable than an (already-unacceptable) argument that the
Texas laws invalidated in Whole Woman’s Health should have
been sustained because a person could leave the State.
To begin with, the government’s voluntary-departure
argument is grounded in an assumption that an unaccompanied
minor can easily avoid the ORR ban by simply departing the
country. The ready ability to leave the jurisdiction may be true
of a Texas resident: she would be free to leave the State (at
least as a legal matter) and go elsewhere to access an abortion.
Voluntary departure, though, does not work that way.
63
Recall that voluntary departure is a form of immigration
relief granted only at the discretion of the government. See
p. 10, supra; 8 U.S.C. § 1229c(a)(1) (“The Attorney General
may permit an alien to voluntarily depart . . . .” (emphasis
added)). That is because voluntary departure leaves an
individual better off than if she were removed from the country.
See Dada, 554 U.S. at 8. So whereas a Texas resident can leave
the State without needing any approval, an unaccompanied
minor could obtain voluntary departure only if the government
grants it. Voluntary departure, then, is not a freely available
escape hatch from a government veto on abortion. It is instead
a second government veto.
Relatedly, a Texas resident could choose how soon to
leave the State to access an abortion elsewhere. That is
significant because the right to a pre-viability abortion has an
inherent expiration date. And even before that date, forcing a
person to delay obtaining an abortion itself entails an escalating
burden and risk over time.
With voluntary departure, though, it is not just that the
government can choose when (and whether) to grant relief. It
is also that the government has given no sense of how long the
process can (or usually does) take from the time a person seeks
the relief to the time the arrangements can come into order for
her departure to another country. The process might well take
considerable time in a context in which time is of the essence.
In the case of Jane Doe, for instance, government
correspondence in the record observed that her voluntary
departure case was “not likely to be far [along] at all given [her]
recent referral date” to ORR, indicating that voluntary
departure, though possible, is far from instantly available.
Email from Jonathan White, Deputy Dir. for Children’s
Programs, to Scott Lloyd, Dir., Office of Refugee Resettlement
(Sept. 22, 2017), P.A. 26.
64
What is more, any suggestion that a ban on abortion works
no impermissible burden because a person can freely go
elsewhere necessarily assumes the availability of abortion in
the destination. That might be true of a Texas resident
traveling to another state. But that is not true in the case of a
pregnant unaccompanied minor in ORR custody: even
assuming the government were to grant her voluntary departure
and could expeditiously arrange for her return to her country of
origin, she very likely could not obtain an abortion there.
That is because virtually all minors in ORR custody—
more than 90%—come from Honduras, Guatemala, or El
Salvador, the so-called Northern Triangle countries. See ORR
Fact Sheet 2. Abortion is criminalized in all three countries, so
much so that only Guatemala even provides an express
exception for a threat to the life of the pregnant woman. See
World Health Org., Global Abortion Policies Database,
https://abortion-policies.srhr.org/ (last accessed May 14,
2019); see also Immigrant Rights Advocates Amicus Br. 4, 18.
It is no surprise, then, that the government conceded in Jane
Doe’s case that abortion would have been unavailable to her in
her country of origin. In light of the unavailability of abortion
in unaccompanied minors’ countries of origin, the supposed
accessibility of voluntary departure could not be seen to
alleviate the burden imposed by ORR’s ban.
Finally, even if voluntary departure would in fact pave the
way for a UAC to obtain an abortion in her country of origin,
it comes at a significant cost. Voluntary departure requires
withdrawing any claims for other forms of immigration relief.
See 8 C.F.R. § 1240.26. And according to ORR, “[m]any
unaccompanied alien children meet conditions that make them
eligible for legal relief to remain in the United States
including[] but not limited to asylum; special visas for children
who have been abused, neglected[,] or abandoned by the
65
parents or guardian; special visas for victims of severe forms
of trafficking and other types of crime; or adjustment of status
for those who have a legal resident or citizen family member.”
ORR, UAC Services; see also Immigrant Rights Advocates
Amicus Br. 4, 17–23. In that context, requiring an
unaccompanied minor to carry her pregnancy to term unless
she waives any claim for relief to stay in the United States is
itself a substantial burden on her exercise of her rights. See
Garza v. Hargan, No. 17-5236, 2017 WL 9854555, at *3–4
(D.C. Cir. Oct. 20, 2017) (Millett, J., dissenting).
Jane Poe’s case vividly illustrates the point. Recall that
she became pregnant as the result of rape, but Director Lloyd
still refused to authorize an abortion, forcing her to go to court
to obtain an order (over the government’s opposition) enabling
her to terminate her pregnancy. She ultimately received a grant
of asylum entitling her to stay in the United States. According
to the government’s voluntary-departure theory, she should
have been forced to choose between (i) carrying her unwanted
pregnancy to term even though it resulted from rape, and
(ii) returning to her country of origin, a place where, according
to the government’s own determination in granting her asylum,
she faced a well-founded fear of persecution. Putting her to
that choice, to say the least, amounts to a “substantial obstacle
in the path of a woman seeking an abortion.” Stenberg, 530
U.S. at 921 (quoting Casey, 505 U.S. at 877 (plurality)).
For those reasons, we cannot accept the government’s
effort to justify ORR’s ban on access to abortions on the theory
that unaccompanied minors can voluntarily depart the country.
The undue-burden framework has never been thought to
tolerate any burden on abortion the government imposes
simply because women can leave the jurisdiction. That is
especially so for voluntary departure, which: is granted only at
the government’s discretion; may not come soon enough even
66
if awarded; is exceedingly unlikely to enable an
unaccompanied minor to obtain an abortion in her country of
origin in any event; and requires abandoning potentially viable
claims of entitlement to stay in the United States.
c.
The government’s last defense involves the prospect that
an unaccompanied minor could be released to a sponsor, at
which point ORR would no longer prevent her from obtaining
an abortion. Because of that possibility, the government
argues, the ban on accessing an abortion while in ORR custody
does not impose an undue burden.
i. The government’s sponsorship argument, in our view,
is ultimately no more persuasive than its voluntary-departure
one. Those arguments share important parallels. In both, the
central idea is that an unaccompanied minor may find herself
no longer in ORR custody—either because she voluntarily
departs the country or because she is released to a sponsor—in
which event she would be free to access an abortion without
the burden of ORR’s policy. Some of the same deficiencies
that require rejecting the government’s voluntary-departure
argument also undermine its sponsorship argument.
First, as with voluntary departure, sponsorship is not
simply there for a UAC’s taking. Rather, release to a sponsor
is at the discretion of the government and is contingent on
factors outside the UAC’s control—most importantly, the
existence of a willing and qualified sponsor. The process of
approving a suitable sponsor is understandably an involved
one. As ORR explains, “the safe and timely release of an
unaccompanied alien child from ORR custody involves many
steps including: the identification of sponsors; the submission
by a sponsor of the application for release and supporting
documentation; the evaluation of the suitability of the sponsor,
67
including verification of the sponsor’s identity and relationship
to the child, background checks, and in some cases home
studies; and planning for post-release.” ORR Guide § 2.1.
As with voluntary departure, moreover, there is no
guarantee that release to a sponsor—if it occurs at all—would
happen in a timely fashion, even though the right to a
pre-viability abortion carries a finite endpoint and its delayed
recognition entails an accumulating burden and risk over time.
According to recent ORR data, the average length of time a
UAC spends in ORR custody is roughly 90 days. ORR Fact
Sheet 2. And because that is merely an average, a sizable share
of unaccompanied minors will spend more time than that in
ORR custody before any release to a sponsor, with some never
released to a sponsor because a suitable one is never found.
Jane Doe, for instance, was released to a sponsor after
months in ORR custody, at a time when she would have been
at least some 26 weeks pregnant had she not been permitted to
terminate her pregnancy under court order. And Jane Poe
remained in ORR custody for approximately one year without
ORR ever locating a suitable sponsor. See also Santos v. Smith,
260 F. Supp. 3d 598, 603–04 (W.D. Va. 2017) (no release for
29 months).
In defending its sponsorship argument, the government
relies on Supreme Court decisions sustaining judicial-bypass
regimes that can impose some delays on a minor’s ability to
obtain an abortion absent parental involvement. The
government notes that, in one decision, the Court upheld
against a facial challenge a bypass procedure for minors that
could have taken up to 22 days to complete (in an improbable,
“worst-case analysis that may never occur”). Akron Ctr. for
Reproductive Health, 497 U.S. at 514. Here, though, the
average length of time an unaccompanied minor remains in
68
ORR custody before release to a sponsor is more than four
times that number of days; and the worst-case scenario is no
release, ever (at least until age 18, at which point a person
would be transferred to DHS custody as an adult).
Apart from the arithmetic, there is a more fundamental
flaw in the government’s effort to analogize the time before
release to a sponsor to the time to secure a judicial bypass. The
government does not contend only that, for that subset of
minors who can gain placement with a sponsor within a given
period (e.g., in less than 22 days), it would be constitutional to
delay access to an abortion to them for that time. Instead, the
government’s argument extends to all minors in ORR custody,
regardless of whether they are ever released to a sponsor. In
the government’s apparent view, the possibility that some
minor could be released to a sponsor quickly enough to obtain
a pre-viability abortion justifies a ban on every minor for the
entire time she is in ORR custody. Thus, Jane Poe, for whom
a suitable sponsor was never found, can be compelled to carry
to term a pregnancy resulting from rape, because someone else
might be more fortunate in securing release to a sponsor.
In other words, that lightning might strike for some, the
government evidently believes, means it can deny an abortion
to all. That of course cannot be so. Under that logic, a state
could enforce a blanket requirement of parental consent even
without affording any judicial bypass because at least some
parents might change their minds. But see Bellotti, 443 U.S. at
643 (opinion of Powell, J.); id. at 654 (opinion of Stevens, J.).
The abstract possibility of release to a sponsor thus affords no
basis to deny access to abortion across the board.
It bears emphasis, moreover, that the judicial-bypass
context fundamentally differs from the sponsorship context.
The delay from a judicial bypass is justified by the need to
69
ensure that a minor is sufficiently mature to decide to terminate
her pregnancy without parental involvement. See, e.g., id. at
636 (opinion of Powell, J.). That interest was served in Jane
Doe’s case, for instance, when she obtained a bypass from a
Texas court that found her competent to make her own choice
to terminate her pregnancy. By contrast, ORR’s policy here
has been justified only on the basis of the government’s interest
in avoiding “facilitation.” And nothing in the record suggests
that ORR had in mind any potential benefits of sponsorship for
unaccompanied minors when it instituted and applied the ban.
Nor does the structure of ORR’s policy suggest any aim to
provide pregnant UACs with any benefits of sponsorship when
deciding whether to terminate a pregnancy. The search for a
sponsor begins for every unaccompanied minor at the moment
she (or he) enters ORR custody, and there is no intensified
effort to identify a sponsor just because a minor is pregnant and
considers an abortion. Plus, far from improving the conditions
for a minor’s decision-making, barring abortion access unless
a sponsor is found would deny some minors the ability to make
a decision at all (in cases like Jane Poe’s, in which no suitable
sponsor is identified before viability). When Director Lloyd
explained his denial of Poe’s request for an abortion, he thus
made no mention of sponsorship or its potential advantages.
Our dissenting colleague suggests that, regardless of
whether Director Lloyd (or anyone in the government)
considered the advantages of sponsorship when establishing or
implementing the ORR policy, the government in its briefing
before us has now referenced the “benefits of adult guidance”
afforded by sponsorship and has argued “that sponsorship does
provide that benefit to a pregnant minor.” Dissenting Op. 17.
That may be so, but it is beside the point. Everyone agrees that
sponsorship benefits UACs: that is why the government seeks
release to a sponsor for all UACs, pregnant or not. The salient
70
question, though, is whether the challenged ORR policy—i.e.,
the ban on abortion access—is adequately aimed to (or operates
to) realize those benefits of sponsorship for unaccompanied
minors, even though it denies them abortion access without
regard to the prospects of their release to a suitable sponsor.
For the reasons explained, we think the answer is no.
In short, nothing in the ORR policy’s design or operation
suggests that its purpose or effect is to confer upon UACs
deciding whether to terminate a pregnancy the benefit of adult
consultation and support. The government’s justification for
the policy instead has consistently been the same one it invokes
with respect to voluntary departure—i.e., the interest in
withholding government “facilitation” of abortions while a
pregnant minor is in ORR custody. In the context of that
interest, the government can no more deny her abortion access
based on the abstract possibility of sponsorship than it can do
so based on the abstract availability of voluntary departure.
ii. The government suggests a fallback variation of its
sponsorship argument in its reply brief: even if the abstract
possibility of release to a sponsor does not allow the
government to bar abortion access outright in all instances, the
district court at least should have narrowed its preliminary
injunction to give the government additional time to find a
sponsor “when it is expeditious.” Gov’t Reply Br. 18. Our
dissenting colleague accepts a form of that argument. In his
view, when a UAC “says she wants an abortion,” the
government should be allowed to delay abortion access for a
“limited time” while it continues searching for a sponsor; but
the delay in all events would need to end before the pregnancy
“come[s] close to viability,” at which point the government
would have to allow an abortion. Dissenting Op. 16–17. Our
colleague does not specify the length of the “limited time,” but
says that it would need to be “expeditious” and that “up to a
71
three-week delay ha[s] been recognized as expeditious” in the
context of a judicial bypass. Id. That species of fallback
argument does not advance the government’s cause.
As an initial matter, the government has not provided a
sound reason for any delay in the circumstances of this case, as
we have already rejected its reliance on the one interest it
presses—non-facilitation. And in any event, it is far from clear
that the government could justify delaying abortion access for
all minors for an additional period of up to three weeks on the
mere chance that placement with a sponsor could occur in that
window for someone. The government would have been
looking for a sponsor for every minor, all along, and would
continue to do so with the same intensity regardless of an
abortion request. There is then no reason to suppose that the
search will happen to yield a sponsor in an additional three
weeks often enough to justify imposing a blanket delay of that
duration—and the government has not attempted to make any
argument or showing to that effect.
Our dissenting colleague nonetheless asserts that the
sponsorship process is in fact affected by an abortion decision.
He supposes that the government’s search for a sponsor
“surely” is “accelerated” when an unaccompanied minor says
she wants an abortion. Dissenting Op. 16. But there is no
reason to think our colleague’s speculation is accurate, and
every reason to think it is not.
The government has never suggested, in any materials
submitted in this case or in any of its published guidance on the
sponsorship process, that its efforts to find a sponsor go from
half-hearted to full-hearted if it learns that a particular UAC
desires an abortion. Rather, the imperative to find a suitable
sponsor exists for all unaccompanied minors from the moment
they enter ORR custody until a sponsor is found because
72
release to a sponsor is desirable in all instances, regardless of
pregnancy (or abortion). The government thus continued
trying to find a sponsor for Jane Doe after she obtained an
abortion, with no evident deceleration in its (eventually
successful) efforts. Indeed, even as to a minor who is pregnant,
release to a sponsor presumably would be at a premium not just
if she says she wants an abortion, but also if she does not: she
can then have the direct assistance and support of a family
member or other responsible adult as she proceeds to delivery.
Our colleague’s proposed up-to-three-week delay when a
minor says she wants an abortion has no relation to anything
we know about the sponsorship process. Though the Supreme
Court upheld a bypass mechanism that could take up to three
weeks to complete in a worst-case circumstance, Akron Ctr. for
Reproductive Health, 497 U.S. at 514, the delay was justified
by the particular interest served by the bypass and the time
needed for that process to run its course. There is nothing
sacrosanct, though, about a three-week waiting period. The
Court did not hold that any three-week delay advancing any
interest to any degree is invariably constitutional.
Here, without knowing whether, why, or how often an
extra three weeks is likely to result in placement of minors with
sponsors, we cannot weigh a three-week delay’s putative
benefits against its burdens. See Whole Woman’s Health, 136
S. Ct. at 2309. The three-week figure has simply been plucked
from the judicial-bypass context and rotely transposed here,
rather than justified based on a three-week delay’s purported
benefits pertaining to identifying a sponsor.
At any rate, even assuming the government could justify
some additional period of delaying access to an abortion that is
tied to its efforts to identify a sponsor, the district court had no
obligation to fashion its interim injunction around that
73
possibility. True, “an injunction must be narrowly tailored to
remedy the harm shown.” Gulf Oil Corp. v. Brock, 778 F.2d
834, 842 (D.C. Cir. 1985). That principle, however, does not
require district courts enjoining unconstitutional government
policies to fashion narrower, ostensibly permissible policies
from whole cloth. After all, what might a narrower policy look
like here? The government never said, and the district court
did not need to propose a range of conceivable polices to the
government until the government found one to its liking.
For instance, perhaps in lieu of the blanket ban the
government sought to defend, it might consider a regime of the
kind hypothesized by our dissenting colleague, under which it
would delay access to an abortion for a given period in which
it might somehow augment its ongoing efforts to find a
sponsor, with viability as a backstop. Our colleague traces that
approach to then-Judge Kavanaugh’s opinion in an earlier
stage of the proceedings in this case. Dissenting Op. 15. But
after that opinion, the government at no point asked the district
court in the ensuing proceedings to consider crafting a remedy
that would give the government some extra time period to find
a sponsor upon learning of a UAC’s interest in an abortion.
Nor did the government suggest the contours of any such
approach. The district court, then, did not abuse its discretion
by leaving such a regime out of its preliminary injunction.
What, for instance, would be an appropriate amount of
additional time to identify a sponsor? And if the start time, per
our colleague’s proposal, is when a minor requests an abortion,
would the extra time to find a sponsor vary depending on the
amount of time remaining until viability, which in turn might
vary depending on the particularities of state law?
Additionally, would there be a fixed period of delay for all
unaccompanied minors regardless of the prospects of
identifying a sponsor, as our dissenting colleague appears to
74
presume, or would delay be warranted only for those minors
for whom the prospect of expeditiously identifying a sponsor
is sufficiently promising? If the latter, by what criteria would
those minors be identified? And by what proper purpose would
the government justify an additional period of delay, given
that, as explained, it has yet to assert such a purpose?
This case, in short, is not one in which crafting a narrower
remedy is a “relatively simple matter.” Ayotte v. Planned
Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (quoting
United States v. Treasury Emps. Union, 513 U.S. 454, 479 n.26
(1995)). To the contrary, devising a narrower remedy would
have entailed “making distinctions in a murky constitutional
context . . . where line-drawing is inherently complex” and is
laden with the kinds of policy judgments a court typically does
not make on its own. Id. For instance, if a state were to enact
a blanket ban on abortions for minors without any bypass, a
court of course could simply enjoin the ban without needing to
fashion (and carve out from its injunction) a permissible bypass
regime that the state might someday wish to construct. So too
here. Confronted with a blunt policy barring access to an
abortion across the board for anyone in ORR custody, the
district court understandably issued a corresponding remedy.
d.
i. The district court’s remedy does not compel
“abortion-on-demand,” contrary to the government’s (and our
dissenting colleague’s) characterization. See Gov’t Reply Br.
14; Dissenting Op. 18. With or without the preliminary
injunction, an unaccompanied minor can obtain an abortion
only if state law permits it. That is why Jane Doe needed to
obtain a judicial bypass from a Texas court. A regime in which
an unaccompanied minor needs to secure a judicial bypass
75
under Texas law cannot be seen as “abortion-on-demand”
unless Texas law itself is seen to allow abortion-on-demand.
What is more, even if we set aside the need to satisfy state
law and consider only the federal government’s efforts to add
its own constraints, nothing in our analysis necessarily
prevents the government from attempting to regulate UACs’
abortion access under a different policy consistent with the
Supreme Court’s precedents. If the government wishes to
devise a narrower policy than a blanket veto and ban (including
one tethered to the sponsorship process), it can do so and then
test the policy in the courts. But until then, the district court is
not obligated to undertake the task of chiseling from the
government’s across-the-board ban a different policy the
government never identified, endorsed, or defended.
ii. As something of a last resort, the government asserts
that upholding the district court’s decision “would
constitutionally mandate what would amount to abortion
tourism, where minors who cannot obtain abortions lawfully in
their country of nationality demand abortion services at our
border or upon illegal entry to our country.” Gov’t Br. 45. The
government’s supposition that the possibility of a lawful
abortion would alone cause unaccompanied minors to attempt
the journey here is unsupported.
As ORR itself explains, “[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.” ORR, UAC Services. And the “age of these
individuals, their separation from parents and relatives, and the
hazardous journey they take make unaccompanied alien
76
children especially vulnerable to human trafficking,
exploitation[,] and abuse.” Id.
Those perils have become only more pronounced. A
recent letter from the DHS Secretary to Congress advises that
“[r]eports of violence and sexual assault along the route are
now pervasive, meaning that many arriving migrants require
especially focused care. In some cases, girls as young as 10
years old in DHS custody require pregnancy tests so we can
make sure they get essential medical support.” Nielsen Letter
2. That hazardous journey for minors is not “tourism,” much
less “tourism” to “demand abortion.” Gov’t Br. 45.
More fundamentally, even if the availability of
constitutional rights in this country affords an inducement to
attempt that journey, we are unable to accept the government’s
argument. It is difficult to imagine the government arguing,
say, that unaccompanied minors should be denied the right to
freely worship while in ORR custody because those denied
religious liberty in their native countries might otherwise be
enticed to come to the United States. And correspondingly, we
cannot accept the suggestion that minors in ORR custody
should be compelled to carry pregnancies to term against their
wishes—even in cases of rape—so that others will be deterred
from desiring to come here.
To be sure, the “right to an abortion” is viewed to have a
“controversial nature,” as to which people “sincerely hold
directly opposing views.” Stenberg, 530 U.S. at 920–21. But
the Supreme Court “has determined and then redetermined that
the Constitution offers basic protection to the woman’s right to
choose.” Id. at 921. And we are not free to dilute a
constitutional right recognized by controlling Supreme Court
precedent—a right the government affirmatively assumes
77
unaccompanied minors here have—so that others will be
dissuaded from seeking a better life in this country.
* * *
We therefore agree with the district court that the plaintiffs
have shown a likelihood of success in connection with their
claim that ORR’s restriction on abortion access infringes their
protected right to choose to terminate their pregnancies.
2.
The district court, having found a likelihood of success on
the merits of plaintiffs’ abortion-access claim, made relatively
quick work of the remaining preliminary-injunction factors.
The court held that: (i) the class would be subject to irreparable
harm in the absence of an injunction, including, “at a minimum,
increased health risks, and perhaps the permanent inability to
obtain the abortion to which they are legally entitled,” Garza,
304 F. Supp. 3d at 165; (ii) the balance of the equities favors
the plaintiffs because the government lacks “any legitimate
interest that will be harmed by the issuance of a preliminary
injunction,” id.; and (iii) the public interest favors a preliminary
injunction because the case “involves the protection of
constitutional rights” and “the public has an interest in the
government maintaining procedures that comply with
constitutional requirements,” id. (citation omitted). We see no
basis to set aside the district court’s assessment of those
remaining preliminary-injunction factors.
The government argues that the plaintiffs’ class will not
suffer irreparable harm absent a preliminary injunction.
Noting the district court’s grant of temporary restraining orders
to Jane Doe, Jane Poe, and Jane Moe, the government contends
that the court could similarly deal with abortion requests on a
rolling, emergency basis as they arise in the course of the
78
litigation. But it is precisely because of a risk of irreparable
harm that an individual litigant would be entitled to emergency
relief in a given case. And the government provides no reason
why the district court was required to privilege one form of
interim relief that individual class members could seek in the
future (one-by-one temporary restraining orders) over another
form of interim relief that the class seeks now (a classwide
preliminary injunction). Efficiency considerations, if nothing
else, plainly favor the latter.
Next, the government contends that the “government (and
public) have a legitimate and significant interest in protecting
potential life and therefore refusing to affirmatively facilitate
abortions that the Constitution does not require.” Gov’t Br. 49.
And the public interest, the government continues, “weighs
against incentivizing illegal immigration.” Id. The first
argument assumes the correctness of the government’s position
on the merits (which we have found is unlikely to succeed).
And as to the second argument, there is no evidence supporting
the idea that pregnant unaccompanied minors make the journey
to the country and attempt to (unlawfully) enter solely for the
sake of obtaining a (lawful) abortion.
Finally, the government submits that “the public interest
weighs heavily in favor of allowing ORR to fulfill its statutory
obligations,” and notes that “ORR must assume a de facto
parent role for [pregnant UACs], who often lack the maturity
to independently make such crucial life decisions.” Id. at 49–
50. Consequently, the government contends, it “is in the public
interest to allow ORR to fulfill that obligation, including by
assisting these minors with navigating complex moral, mental,
and physical issues they face.” Id. at 50. But ORR’s policies
are not calculated to assist minors with navigating the decision
whether to continue (or terminate) a pregnancy. Instead,
ORR’s policies aim to block a decision in one direction alone
79
until ORR can absolve itself of its de-facto parental role via
either voluntary departure or release to a sponsor (or release to
DHS when a minor turns 18). There was no reversible error in
the district court’s consideration of the public interest.
* * *
Because the plaintiffs have made a sufficient showing that
the various preliminary-injunction factors weigh in their favor,
we affirm the district court’s order preliminarily enjoining the
government from interfering with unaccompanied minors’
access to a pre-viability abortion.
B.
We consider next that portion of the district court’s order
enjoining the government from revealing (or from forcing the
plaintiffs to reveal) “the fact of their pregnancies and/or
abortion decisions to anyone.” Prelim Inj. Order (Apr. 16,
2018), G.C.A. 275. The plaintiffs allege that ORR maintained
a practice of disclosing, or of coercing class members to
disclose, information about their abortion decisions and
pregnancies to their parents (and, in some cases, to potential
sponsors). They argued that the disclosure practices violate
their rights under the First and Fifth Amendments. The district
court evidently agreed, and the government now appeals that
aspect of the preliminary injunction.
We decline to reach the merits of that challenge, however,
because we lack an adequate understanding of the content of
the disclosure policies we would be charged with reviewing.
The district court, in the portion of its decision granting
certification of the class, noted that the “[p]laintiffs have
offered evidence to support their contention that” ORR
maintains “a series of restrictions that apply to all pregnant
UCs in its custody,” including “a parental notification
80
requirement that cannot be bypassed.” Garza, 304 F. Supp. 3d
at 156. But while the court observed that the plaintiffs had
“offered evidence” supporting a parental notification
requirement, the court did not make an ultimate finding on
whether such a requirement in fact exists. Nor did the court
make findings about the parameters of the alleged notification
requirement.
For instance, there is no finding or statement speaking to
whether parental notification pertains to (or is triggered by) an
abortion request, or whether notification may also encompass
the fact of a minor’s pregnancy regardless of an abortion
request. There is also no finding addressing whether (and to
what extent) ORR undertakes a case-by-case determination
concerning a minor’s best interests before notifying parents, as
the government claims, or whether any notification instead
occurs on a blanket basis. Nor is there a finding concerning
whether and to what extent ORR is in the practice of disclosing
abortion requests (or the fact of pregnancy) to prospective
sponsors as well as parents, and whether the ORR disclosure
practice is the same both pre- and post-viability.
The answers to those sorts of questions would inform the
constitutional analysis and bear on its contours. And the
answers would enable us to ensure that we avoid issuing an
advisory opinion about aspects of an alleged disclosure policy
that do not in fact exist. In addition, a remand would allow the
district court to identify which of the plaintiffs’ three
constitutional theories about the alleged disclosure policies (a
Fifth Amendment claim under Planned Parenthood v. Casey,
a Fifth Amendment “informational privacy” claim, or a First
Amendment claim) promises a likelihood of success on the
merits and why. As it stands, the court’s legal analysis speaks
to ORR’s challenged interference with abortion access without
separately discussing the alleged disclosure polices. Nor did
81
the decision address the other preliminary-injunction factors as
they may specifically pertain to the alleged disclosure policies.
We appreciate the pressure on the district court to move
with haste, particularly given the nature of the claims and the
multiple prior rounds of emergency litigation. We also
acknowledge the breadth of the legal issues raised—as the
length of this opinion manifests—and the understandable
desire to streamline the order. And the parties did not always
draw clear distinctions between the access restriction and
alleged disclosure mandate in their arguments.
Nonetheless, we are unable to meaningfully review the
portion of the district court’s preliminary injunction addressed
to the alleged disclosure policies without a more developed
understanding of the content of those polices. We thus vacate
the portion of the district court’s order preliminarily enjoining
the government from disclosing (or forcing class members to
disclose) information related to their pregnancies and abortion
decisions, so that the district court on remand can give a more
fulsome account of its findings and conclusions in that regard.
* * * * *
For the foregoing reasons, we affirm the class certification
order and the portions of the preliminary injunction enjoining
obstructions to abortion access. We vacate those portions of
the order relating to ORR’s alleged disclosure policies and
remand for further explanation.
So ordered.
SILBERMAN, Senior Circuit Judge, dissenting: I should note
at the outset my disagreement with the majority regarding the
propriety of the district judge’s certification of the class. Three
of the four factors to be considered in Rule 23(a) governing
class actions – commonality, typicality, and adequacy – “tend to
merge,” as Justice Scalia once observed. Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 349 n.5 (2011) (quoting Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 157-58 n.13 (1982)). The crux
of my dispute on this issue is that I believe that the class is much
too broad; it should not include pregnant minors who do not
wish an abortion, whether you refer to that as a violation of
commonality, typicality, or adequacy. Indeed, I believe that the
class not only violates Rule 23(a), it also violates the
Constitution since it includes many class members who do not
claim injury-in-fact.
But before I reach that matter, I also disagree with the
majority regarding another constitutional question, as to whether
this case is moot, because the class representatives’ claims are
moot, or whether mootness is avoided because of the exception
for claims that are “inherently transitory.”
Finally, since the majority decides these procedural
questions contrary to my views and reaches the merits, so do I;
for I disagree on the merits as well.
I.
It is common ground in this case that the only relevant
exception to the mootness doctrine is based on the inherently
transitory exception. That is to say the claims must be
inherently transitory. Generally, the cases in which Supreme
Court majorities have recognized this exception have been cases
in which the class members’ alleged legal violations have, from
the outset of the claim, been expected to last only days or a very
brief period of time – too short a period for a conscientious
2
district judge to be expected to rule on a motion for certification.
See County of Riverside v. McLaughlin, 500 U.S. 44, 47, 50-52
(1991). Therefore, even if the class representatives’ claims are
mooted, the class of plaintiffs remains so long as members still
have live claims. Which presents the question: What period is
too short? My colleagues put it in terms of whatever amount of
time would be “reasonable,” keeping in mind the demands
placed on a busy judge. I am afraid that is a way of turning any
injunctive claim that is indefinite into an inherently transitory
claim. The exception would swallow the rule.
Determining whether a claim is inherently transitory
requires us to judge whether the claim on its face (no matter
when the certification motion is actually heard) was one that a
hypothetical judge would not have had adequate time to hear
and decide the certification issue. In other words, the claim
must be evaluated ex ante – when made – not in the context of
events that transpire after the claim. The words “inherently
transitory,” therefore, necessarily suggest apparent fleeting
claims. The Supreme Court recently seemed to indicate my
analysis is correct – it said “this doctrine has invariably focused
on the fleeting nature of the challenged conduct giving rise to
the claim.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66,
76-77 (2013).
My difficulty with the majority’s formulation is that it
seems to suggest that a judge may certify a class despite the
mootness of the representatives’ claims if the judge has acted
within a reasonable time given his or her schedule – an ex post
approach which would be virtually impossible to review.
Moreover, the number of variables implicit in that approach is
inconsistent with the term “inherently transitory.” See
Contractors’ Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1057
(D.C. Cir. 2003) (concluding that the word “inherently”
precludes reliance on “independent variables”); see also Wilson
3
v. Gordon, 822 F.3d 934, 959 (6th Cir. 2016) (Sutton, J.,
dissenting) (“The question is whether the claim has a built-in
expiration date.”).
Turning to the claims at issue, they were certainly not
fleeting. As the majority points out, according to recent data,
the average stay in custody for minors was roughly ninety days.
Op. at 67. This is hardly too brief for judicial action on the
certification motion.
The majority points to age, sponsorship, and voluntary
departure as events that might end the claims of class
representatives. Op. at 26. Yet the Appellees dispute quite
vigorously the availability and operation of sponsorship and
voluntary departure. Indeed, the district court’s findings
certainly suggest that these factors do not support the application
of the exception. The court found sponsorship to be “typically
a lengthy, complex process involving multiple stages.” Garza
v. Hargan, 304 F. Supp. 3d 145, 164 (D.D.C. 2018). Nor do
Appellees argue that sponsorship happens quickly, see
Appellees’ Br. 45, or suggest that voluntary departure is a
significant option for pregnant minors, see id. at 44. Of course,
there might be some movement out of the class, but that does
not ex ante make the claims of putative class representatives
fleeting for purposes of the inherently transitory exception.
It should be recalled that the inherently transitory exception
has a second requirement that there be a constant class of
individuals with live claims (this is, of course, related to the
Rule 23(a) numerosity requirement, see infra note 2). I have
rather serious doubts that this prong is met either. The majority
emphasizes that the Government does not contest this point, but
since it goes to Article III standing, we have an obligation to
examine the matter ourselves. The district court merely
determined that “the claims of numerous potential class
4
members remain unaddressed.” Garza, 304 F. Supp. 3d at 160.
Similarly, Appellees rely on the large size of the class, but if I
am correct that the class is much too large, this requirement also
becomes problematic. The majority opinion, on the other hand,
relies on a statement at oral argument that only “about a dozen
[minors] expressed an interest in abortion or related
information” in the six-month period after the issuance of the
injunction. Op. at 28. I do not think that such a small number
is sufficient to assure the court of a continuing existence of a
class of individuals with live claims for purposes of the
inherently transitory exception, and we are obligated to be
“certain” of the existence of a live class. See Gerstein v. Pugh,
420 U.S. 103, 110 n.11 (1975).
Candidly, I am troubled by a recent Supreme Court
decision, Nielsen v. Preap, 139 S. Ct. 954 (2019), on which my
colleagues rely. There, a three-Justice plurality, after
determining that at least one class representative’s claim was not
moot, went on to state that all the claims of the class were
“transitory.”1 Id. at 963 (plurality). Contrary to the majority’s
suggestion that the plurality concluded that a claim lasting one
year was too brief, Op. at 27, the plurality never mentioned the
amount of time at stake.
The transitory exception apparently applied because the
class representatives’ claim directed to the Government’s failure
to give a bond hearing to detained aliens could be obviated at
any time if they received a decision on removal. Preap, 139 S.
Ct. at 963 (plurality). Rather surprisingly, the word “inherently”
is missing from the plurality’s terse statement. (I can’t believe
that the Court without any explanation meant to drop the
1
The Ninth Circuit’s statutory analysis was a terribly tempting
target. Sometimes the Court is more driven by issues than procedural
limitations.
5
inherently transitory test.) The facts, however, are quite similar
to the original case, Gerstein, but since the average length of
time of detention in Preap was one year, it can hardly be called
fleeting, which is what Justice Thomas pointed out in his
concurrence. Id. at 976 (Thomas, J., concurring in part and
concurring in the judgment). That leads me to believe that
although the plurality provided us with no analysis, its
justification for ignoring the lengthy average time of detention
was the Government’s complete control of the timing of any
removal – which, in some cases, could be fleeting. That isn’t
true in our case. Two factors affect the timing of the Appellees’
claims – voluntary departure and sponsorship. But as I noted,
obviously the Government cannot unilaterally effect a departure,
and finding an appropriate sponsor is hardly in the
Government’s sole control.
In sum, the majority’s imaginative employment of the
limited exception to mootness – inherently transitory claims –
blows a hole as wide as the Haleakala Crater in a constitutional
restriction on judicial power.
II.
The Government asserted that the class representatives have
antagonistic or conflicting interests with members of the
certified class, i.e., those pregnant minors who do not wish an
abortion. As I observed, that argument implicates three
requirements of class certification under Rule 23(a):
commonality of the claims, typicality of the claims, and
adequacy of the class representatives, which overlap.2 The
2
Resolution of this argument implicates the fourth requirement,
numerosity. I am doubtful that a properly defined class could meet the
numerosity requirement, which is likely why the Appellees defined the
class in such broad terms. I think the majority’s suggestion that even
6
majority recognizes the Government argued in the district court
that many of the putative class members wished to carry their
pregnancies to birth, but contends that the Government’s
elaboration of that point on appeal – that many of the pregnant
minors could be expected to have moral/religious objections to
abortion – is somehow a different argument. But the
Government in the district court relied on Mayfield v. Dalton,
109 F.3d 1423 (9th Cir. 1997), holding that a class could not
include people who supported the Government’s challenged
policy. Id. at 1427. That many of the class members in our case
have moral/religious objections to abortion is hardly a different
point; it is not only implicit, it is obvious in today’s world.
In that regard, the majority ignores the independent
obligation of the district court to assure itself of the propriety of
class certification. Although, in my view, both the pleadings
and common sense presented this issue, the Supreme Court has
cautioned that “sometimes it may be necessary for the court to
probe behind the pleadings before coming to rest on the
certification question.” Falcon, 457 U.S. at 160. Any court
faithfully performing the “rigorous analysis” mandated by the
Supreme Court should have anticipated and engaged with the
obvious problems posed by this class. Id. at 161. So, too, any
district judge in the United States should have recognized that
many pregnant minors who favored the Government’s policy
would have moral/religious reasons for doing so. In any event,
the majority confronts the argument on its merits and dismisses
it as mere value or ideological interests. Op. at 40.
The Government makes a related powerful argument with
respect to adequacy: the class representatives, both of whom
sought an abortion, cannot adequately represent the interests of
a smaller class might be appropriate is quite speculative. See Op. at
48-50.
7
pregnant minors who wish to carry their babies to birth. The
majority’s response is that the district judge’s order ostensibly
is also directed to the benefit of the minors who don’t want an
abortion. It states the Government is banned from interfering
with pregnancy-related care. But that is obviously window
dressing; no one has been arguing that the Government has been
derelict in providing care to those minors who wish to give birth.
Of course, the adequacy of the class representatives is
directly related to the question whether the class has a common
legal interest. The Appellees contend that all pregnant minors
– whether or not they want an abortion – are really aligned with
the class representatives because the relevant constitutional right
in their view is the right to choose whether or not to have an
abortion. I think that confuses a political slogan3 with a
constitutional right. No one questions any woman’s legal right
to carry a fetus to birth; the only constitutional issue is whether
there is a constitutional right to have an abortion under some
circumstances. So it is misleading for Appellees to speak of a
constitutional right to choose whether to carry a pregnancy to
birth. No one, least of all the Government, threatens such a
“choice.” The Appellees’ articulation of constitutional rights
carried over, for example, to the Second Amendment would be
phrased as a choice whether to keep arms or not, implying a
constitutional right not to keep arms – which would be
ridiculous. The majority adopts the Appellees’ choice theory:
“class members all assert a common entitlement to make that
choice on their own, free from any veto power retained
(unconstitutionally, the class says) by ORR.”4 Op. at 32.
3
Like “right to life.”
4
To be sure, the “choice” wording comes from the plurality
opinion in Casey, but it seems to me that that strange wording itself
had a political objective. The more natural phraseology would have
8
As a consequence of its thinking, the majority treats
pregnant minors who wish to deliver a baby – the much larger
group – as merely indifferent to or uninterested in the class
action.5 It is claimed there is no conflict between those pregnant
minors who wish to give birth and those who wish an abortion.
Op. at 32-43. In my view, given the fierce differences, based in
part on religious beliefs, that divide people in the United States
and all over the world on the morality of abortion, to blithely
suggest that those pregnant minors who do not want an abortion
are merely uninterested in the Government’s policy seems quite
intolerant of religious views.
Alternatively, the majority determines, even if some
members of the class, hypothetically, are strongly opposed to
abortion, there are two reasons to ignore their concerns. First,
identification of those minors who have such convictions would
not be easily ascertainable for the purpose of carving them out
of the class action. That is so. But the inappropriateness of the
class is not to be cured by carving out those with a hypothetical
level of moral or religious opposition to abortion. It is sufficient
to recognize, as apparently the majority does, that many persons,
including presumably many of the pregnant minors, have these
convictions. (Can one imagine how terrified pregnant alien
minors would be if questioned about their views on the
Government’s policy?) After all, it is the plaintiff who bears the
burden in a class certification proceeding to meet the
requirements of Rule 23(a). Richards v. Delta Air Lines, Inc.,
been the right to have an abortion. See Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2321-22 (2016) (Thomas, J., dissenting).
5
Of course, if the majority were only indifferent to the claims of
the class representatives, that itself would undermine the adequacy of
the class representatives.
9
453 F.3d 525, 529 (D.C. Cir. 2006). Thus, even if – which I do
not advocate – minors with moral/religious convictions in favor
of the policy should be excised from the class, it would be the
Plaintiffs’ burden to identify them, and since the majority
acknowledges that would be virtually impossible, it is the
Plaintiffs who do not satisfy their burden.
It would be willful blindness not to recognize that any
randomly selected group – particularly one drawn largely from
countries with substantial Catholic populations – would include
women who fiercely oppose abortion as murder. In other words,
once it is realized – and I think we can take judicial notice of it
– that a number of the pregnant minors are likely to have
moral/religious convictions that abortion is murder, that is a
powerful reason to conclude the class is improperly certified.
But – and this is important – I do not argue that the class is
improperly certified only because it includes minors who have
moral/religious objections to abortion. That a number are likely
to have religious objections just illustrates the lack of
commonality.
The second reason the majority brandishes is that mere
ideological opposition – which apparently includes religious
views – is not the kind of conflict of interest that threatens the
class certification. Op. at 38. Tell that to the bakers who risked
sanctions for religious reasons, rather than bake a cake for a gay
wedding. The Supreme Court was more sympathetic. See
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138
S. Ct. 1719 (2018). Indeed, the whole body of jurisprudence
dealing with abortion is infused with religious views and secular
values.
The majority argues that because a (b)(2) class action has
no “opt-out” requirement, we need not worry about the inclusion
of members who do not belong and likely do not wish to be
10
included in the class. But the justification for the lack of an opt-
out right in a (b)(2) case is that “injunctive relief benefits the
entire class.” Richards, 453 F.3d at 530. That only holds true
when the class is properly defined. Indeed, since (b)(2) class
members lack the ability to opt out, the district court must be
particularly vigilant in defining the class.
To be sure, plain ideological considerations have been
repeatedly held as insufficient to constitute injury-in-fact for
standing purposes. Sierra Club v. Morton, 405 U.S. 727, 738-40
(1972); Diamond v. Charles, 476 U.S. 54, 66-67 (1986). But
when one is placed in a class represented by political
antagonists, one’s objection is not merely an abstract ideological
concern.6
For instance, the majority’s concept would permit a class of
all federal government workers (approximately 3 million) if, let
us say, Congress passed a law banning continuing government
employment of individuals belonging to an organization that
secretly supports ISIS or similar groups, and a class action based
on the First Amendment was brought. All government
employees, including persons employed in the CIA and the
Defense Department, would have a “choice” whether or not to
belong to such an organization, so their ideological opposition
to the target organization supposedly would be irrelevant.
According to the majority’s reasoning, they would all be merely
indifferent to the claims of the hypothetical class
representatives. By the same token, a neo-Nazi group that
brought that sort of class action could include all Jewish
government employees, and a white supremacist class action
could include African-Americans.
6
After all, class members are compelled to accept representation
from a quasi-political organization, the ACLU.
11
In response to my hypothetical relating to a neo-Nazi First
Amendment claim in the form of a class action that would
include all federal employees, the majority points out that
Jewish employees might have grounds to claim a conflict with
the class because they would have to work alongside the neo-
Nazis. (Why only Jewish employees? And would half-Jews
qualify? And what about those employees who are working
thousands of miles away from where the neo-Nazis wish to
work?) I believe being associated in an action on behalf of the
neo-Nazis is a good deal more troublesome than working in the
same location.
I can just imagine how the dissident groups in my examples
would react when told they are part of the class. The majority
suggests “not to worry” the dissident groups might never know
they were included in the class action. Op. at 40. I wouldn’t bet
on that. Indeed, the resulting publicity would horrify most of
the unnamed members of the class. I think they would probably
have a First Amendment freedom of association claim
themselves, i.e., an objection to a governmentally imposed
membership in a politically offensive class. Cf. Maximilian A.
Grant, Comment, The Right Not to Sue: A First Amendment
Rationale for Opting Out of Mandatory Class Actions, 63 U.
Chi. L. Rev. 239 (1996). In other words, such putative members
of a class might actually have an injury-in-fact when placed in
such a class. That is quite different from the Supreme Court’s
recognition in Diamond v. Charles that someone supporting
legislation for ideological reasons, without injury, lacks
standing. See Op. at 40.
In sum, the implications of the majority’s interpretation of
Rule 23(a) make obvious its flawed reasoning, but in my view,
its concept of a proper class, like its mootness analysis, also runs
counter to constitutional standing doctrine. The Supreme Court
has stated that “Rule 23’s requirements must be interpreted in
12
keeping with Article III constraints.” Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 613 (1997). Certification of a class
consisting mostly of class members who plan to carry their
pregnancies to term and who do not claim to be injured by the
Government’s policy violates Article III’s requirement that a
plaintiff suffer injury-in-fact.7
The majority concludes that it is irrelevant whether all
members of the class claim an injury, relying primarily, by
analogy, to the way the Supreme Court treats a case of joint
plaintiffs. It is black letter law that once a federal court
determines one of joint plaintiffs has standing, it is unnecessary
to determine whether the others have standing. See, e.g.,
Bowsher v. Synar, 478 U.S. 714, 721 (1986). But the analogy,
in my view, doesn’t hold because in the joint plaintiff case, it is
irrelevant whether the “others” have standing – they are only
interested in the resolution of the legal issue, like everyone else.
In other words, they are not parties. See Planned Parenthood of
Idaho, Inc. v. Wasden, 376 F.3d 908, 918 n.6 (9th Cir. 2004). A
class action presents an entirely different legal picture. All
members are parties to the case bound by the judgment with the
right to appeal, inter alia, a challenge to a settlement. Devlin v.
Scardelletti, 536 U.S. 1, 9-11 (2002). Similarly, the filing of a
class action tolls the running of a statute of limitations for
unnamed plaintiffs. Am. Pipe & Constr. Co. v. Utah, 414 U.S.
538, 551-54 (1974). The majority complains that there is no
decision supporting my analysis, passing by the
acknowledgment that there is no Supreme Court decision
supporting its view either. I am prepared to rest on logic.
7
As the Supreme Court has recognized, a party that has not yet
suffered damage can have injury-in-fact if there is “substantial risk”
of future injury. Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414
n.5 (2013)).
13
To be sure, there is a conflict in the circuits as to whether all
members of a class must have a claimed injury, compare, e.g.,
Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006),
with Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 362 (3d
Cir. 2015) – indeed, “the same injury,” Wal-Mart, 564 U.S. at
350 (quoting Falcon, 457 U.S. at 157) – and although the
Supreme Court has not settled the issue, in discussing
calculating damages in class actions seeking monetary relief, the
Chief Justice has said, “Article III does not give federal courts
the power to order relief to any uninjured plaintiff, class action
or not.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
1053 (2016) (Roberts, C.J., concurring).
In a typical individual case, a plaintiff who claims an injury-
in-fact can be challenged and put to proof as to his or her injury.
I understand the Chief Justice, in addressing his argument to
damages rather than class certification, to be implicitly
recognizing that in a class action for damages it would be
duplicative and chaotic to force each unnamed member to
actually prove his or her injury twice. By analogy, the Court has
recognized that unnamed members could not be challenged
factually to defeat diversity – that could destroy the class action
as a procedural tool by causing enormous delay. Devlin, 536
U.S. at 10. But at the certification stage it seems to me all
members of the class must at least claim the same injury. This
is particularly true in a (b)(2) class action that lacks a damages
stage. I concede that in a class action seeking an injunction to
allow a defendant to challenge factually every unnamed
member’s injury similarly would be chaotic, but at a minimum,
all class members should be claiming the same injury.
The Supreme Court has recently recognized at least one
class representative is in the same position as an individual
plaintiff. He or she must demonstrate – not just claim –
14
standing and, therefore, must be prepared to prove injury-in-fact.
Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam). The
majority appears to ignore the difference between a claim of
injury and demonstrating (proving) the injury. The Court has
never suggested that a class can include members who not only
do not claim an injury, but who are opposed to even recognizing
the constitutional right that the class representative asserts.
In that regard, the majority’s suggestion that civil rights
cases “can involve polarizing issues” does little to advance its
argument. Op. at 38. For the typical civil rights case, the issue
would not be divisive with respect to the class (assuming the
class is properly defined), despite the fact that the general
population might have strong feelings about the topic. For
example, in a discrimination case, a court generally need not
worry about class members being opposed to the recognition of
the right not to be discriminated against, even if they are
satisfied with the status quo. On the other hand, Lanner v.
Wimmer, 662 F.2d 1349 (10th Cir. 1981), in which a class
challenging a school released-time program for religious
education purposes on First Amendment grounds included
parents who approved of the program, id. at 1357, is rather
similar to our case, and I think was wrongly decided.
The majority’s hypothetical class challenging a regulation
alleged to violate the Second Amendment apparently has no
limit; it theoretically could include all Americans who live in or
might drive to the affected location. The proper approach is to
limit the class to those residents who claim injury because the
regulation does them harm.8
8
In Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir.
2007), based on prior precedent, we held that the only one of the
plaintiffs who had standing was Heller because he had been denied a
license. Id. at 374-78.
 15
Similarly, in Gratz v. Bollinger, 539 U.S. 244 (2003), the
class was limited to members of racial and ethnic groups who
were treated less favorably on the basis of race in considering
their applications to University of Michigan. Id. at 252-53. In
other words, only those who suffered an injury by being denied
admission.
III.
Since the majority deems the class certification appropriate,
I turn to the merits. I will incorporate then-Judge Kavanaugh’s
persuasive prior opinion. Garza v. Hargan, 874 F.3d 735, 752-
56 (D.C. Cir. 2017) (Kavanaugh, J., dissenting) (explaining why
expeditious transfer to a sponsor is not an undue burden given
the Government’s “permissible interests in favoring fetal life,
protecting the best interests of a minor, and refraining from
facilitating abortion,” id. at 752). I note that Judge Henderson
has a powerful alternative argument, id. at 746-52 (Henderson,
J., dissenting) (concluding that an unaccompanied alien minor
in ORR custody lacked a constitutional right to an abortion), but
that argument was not made by the Government, so in
accordance with my views of judicial restraint, I will not
consider it. To be sure, the Supreme Court once – because, as
so often happens, it was anxious to reach the merits of an
argument – sanctioned deciding an issue that had been waived,
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 446-48 (1993), (which is why I once referred to the
Court as a “non-court court,” United States v. Moore, 110 F.3d
99, 102 (D.C. Cir. 1997) (Silberman, J., dissenting from denial
of rehearing en banc)). But since the Court set forth no standard
– other than it be an anterior legal question – to guide the lower
courts as to when they should follow that practice, most courts
ignore it. I try to – as did Judge Kavanaugh.
16
The Government did make a somewhat different argument
in our case not presented in the previous individual claims. It
asserted, alternatively, that the district court’s preliminary
injunction, even assuming an injunction was proper, was much
too broad. The majority responds by asserting that a narrower
injunction would oblige the district court to make policy
judgments so a blunderbuss rather than a rifle was necessary.
The majority’s apprehension seems rather ironic. After all, the
whole body of constitutional jurisprudence relating to abortion
is more driven by policy concerns than law.
Be that as it may, the majority’s concerns seem
overwrought. It discounts narrowing concepts such as giving
limited time to the Government to find a sponsor because it
would require the district judge to make “policy” decisions as to
when the duty would start and when it would end. But it is our
equitable obligation to fashion narrow relief.
The Government’s obligation to search for a sponsor should
start the moment the pregnant minor says she wants an abortion.
Although the Government may well have been seeking a
sponsor before that time, and, as I noted earlier, that process can
be lengthy, surely its efforts would be accelerated in light of the
new information – or would be if my opinion were adopted. The
Government’s interest is to find a sponsor as quickly as possible
in that situation. (We must assume the U.S. Government would
be acting in good faith.) Of course, even if the Government is
moving expeditiously, it could be unsuccessful for a period so
there would have to be an end point. Using the analogy of the
parental consent and judicial bypass cases, procedures that could
cause up to a three-week delay have been recognized as
expeditious. See Ohio v. Akron Ctr. for Reprod. Health, 497
U.S. 502, 514 (1990). Of course, any injunction would have to
include a recognition that the mother’s health must be
paramount and in no event could the process come close to
17
viability. I would leave it to the district court to arrive at a
figure that meets the Supreme Court’s expeditious requirement.
The majority seems to find it irrational that the Government
might treat minors differently than adults. Yet “[t]he law does
not always treat minors in the same way as adults, as the
Supreme Court has repeatedly emphasized in the abortion
context.” Garza, 874 F.3d at 755 (Kavanaugh, J., dissenting).
I agree with the Government that, even if the class were properly
certified, the district court’s injunction is far too broad because
it ignores the Government’s legitimate interest in the minor’s
welfare. The majority mistakenly analogizes the Government’s
policy articulated by counsel before us to a piece of legislation
which would have to be accepted or rejected. Since we are
presented with the Government’s alternative argument regarding
its policy that the injunction the district court adopted was too
broad, as I noted, we have an equitable obligation to fashion the
narrowest feasible injunction. See State of Neb. Dep’t of Health
& Human Servs. v. U.S. Dep’t of Health & Human Servs., 435
F.3d 326, 330 (D.C. Cir. 2006). After all, “[t]he need for narrow
tailoring . . . is particularly important in the context of a
preliminary injunction or temporary restraining order, where the
court has yet finally to resolve the merits of the dispute.” U.S.
Ass’n of Reptile Keepers, Inc. v. Jewell, 106 F. Supp. 3d 125,
126 (D.D.C. 2015).
The majority suggests that the Government’s real interest in
sponsorship is nothing more than avoiding facilitation of
abortion. This is unfair. It seems to me irrelevant as to what the
“record” reveals of ORR’s “thinking” – whatever that means –
about the benefits of adult guidance for a pregnant minor.
Contrary to the assertions of the majority, in this litigation, the
Government has argued that sponsorship does provide that
benefit to a pregnant minor. See Appellants’ Br. 44
(“Particularly in light of the benefits sponsorship provides, such
18
a modest waiting period does not impose an undue burden on
the minor’s ability to pursue an abortion.”). The majority seems
to regard this case as if it were an APA challenge to agency
action in which the express reasoning of the agency must be
defended. But we are not reviewing administrative action, so we
can rely upon the legal arguments made before us. And it is
clear that the Government has invoked the benefits of
sponsorship for the pregnant minors who are “considering and
pursuing such a personal and sensitive decision as abortion.” Id.
I am afraid the majority’s refusal to consider narrowing the
scope of the district court’s order justifies Judge Kavanaugh’s
accusation that the court is endorsing abortion on demand – at
least as far as the federal Government is concerned.