Rochelle Garza v. Eric Hargan [ORDER IN SLIP OPINION FORMAT] ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
FILED ON: OCTOBER 24, 2017
No. 17-5236
ROCHELLE GARZA, AS GUARDIAN AD LITEM TO
UNACCOMPANIED MINOR J.D., ON BEHALF OF HERSELF AND
OTHERS SIMILARLY SITUATED,
APPELLEE
v.
ERIC D. HARGAN, ACTING SECRETARY, HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLANTS
On Petition for Rehearing En Banc
Before: Garland, Chief Judge; Henderson***, Rogers, Tatel,
Griffith***, Kavanaugh***, Srinivasan, Millett**, Pillard*, and
Wilkins, Circuit Judges
ORDER
Upon consideration of appellee’s petition for rehearing en
banc and the supplements thereto, the response to the petition
and the supplement to the response, the corrected brief for amici
curiae States of New York, California, Connecticut, Delaware,
Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon,
Pennsylvania, Vermont, and Washington, and the District of
Columbia in support of appellee’s petition, and the vote in favor
of the petition by a majority of the judges eligible to participate;
2
and appellee’s motion to recall the mandate and petition for en
banc consideration of appellee’s motion to recall the mandate,
it is
ORDERED that the mandate be recalled. The Clerk of the
district court is directed to return forthwith the mandate issued
October 20, 2017. It is
FURTHER ORDERED that appellee’s petition for
rehearing en banc be granted. This case has been considered by
the court sitting en banc without oral argument, no judge having
requested oral argument. It is
FURTHER ORDERED that the order filed October 20,
2017 be vacated, except that the administrative stay remains
dissolved. It is
FURTHER ORDERED that appellants’ emergency
motion for stay pending appeal be denied because appellants
have not met the stringent requirements for a stay pending
appeal, see Nken v. Holder, 556 U.S. 418, 434 (2009),
substantially for the reasons set forth in the October 20, 2017
dissenting statement of Circuit Judge Millett.1 The case is
hereby remanded to the district court for further proceedings to
amend the effective dates in paragraph 1 of its injunction. The
dates in paragraph 1 have now passed, and the parties have
proffered new evidence and factual assertions concerning the
expected duration of custody and other matters. The district
court is best suited to promptly determine in the first instance
the appropriate dates for compliance with the injunction. In so
doing, the district court retains full discretion to conduct
proceedings and make any factual findings deemed necessary
and appropriate to the district court’s exercise of its equitable
judgment, consistent with this order, including with regard to
any of the factual disputes that were raised for the first time on
appeal. See Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320, 330-31 (2006); Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).
3
The Clerk is directed to issue the mandate forthwith.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
* Circuit Judge Pillard did not participate in this matter.
** A statement by Circuit Judge Millett, concurring in the
disposition of the case, is attached to this order.
*** A statement by Circuit Judge Henderson, dissenting from
the disposition of the case, is attached to this order.
*** A statement by Circuit Judge Kavanaugh, joined by Circuit
Judges Henderson and Griffith, dissenting from the disposition
of the case, is attached to this order.
_____________
1
As both parties agree, the court has jurisdiction over this
appeal because the district court’s temporary restraining order
was more akin to preliminary injunctive relief and is therefore
appealable under 28 U.S.C. § 1292(a)(1). See Sampson v.
Murray, 415 U.S. 61, 86 n.58 (1974).
MILLETT, Circuit Judge, concurring:
While I disagreed with the panel order, I recognize that my
colleagues labored hard under extremely pressured conditions
to craft a disposition that comported with their considered view
of the law’s demands.
Fortunately, today’s decision rights a grave constitutional
wrong by the government. Remember, we are talking about a
child here. A child who is alone in a foreign land. A child who,
after her arrival here in a search for safety and after the
government took her into custody, learned that she is pregnant.
J.D. then made a considered decision, presumably in light of
her dire circumstances, to terminate that pregnancy. Her
capacity to make the decision about what is in her best interests
by herself was approved by a Texas court consistent with state
law. She did everything that Texas law requires to obtain an
abortion. That has been undisputed in this case.
What has also been expressly and deliberately uncontested
by the government throughout this litigation is that the Due
Process Clause of the Fifth Amendment fully protects J.D.’s
right to decide whether to continue or terminate her pregnancy.
The government—to its credit—has never argued or even
suggested that J.D.’s status as an unaccompanied minor who
entered the United States without documentation reduces or
eliminates her constitutional right to an abortion in compliance
with state law requirements.
Where the government bulldozed over constitutional
lines was its position that—accepting J.D.’s constitutional right
and accepting her full compliance with Texas law—J.D., an
unaccompanied child, has the burden of extracting herself from
custody if she wants to exercise the right to an abortion that the
government does not dispute she has. The government has
insisted that it may categorically blockade exercise of her
constitutional right unless this child (like some kind of legal
Houdini) figures her own way out of detention by either (i)
2
surrendering any legal right she has to stay in the United States
and returning to the abuse from which she fled, or (ii) finding
a sponsor—effectively, a foster parent—willing to take custody
of her and to not interfere in any practical way with her abortion
decision.
That is constitutionally untenable, as the en banc court
agrees. Settled precedent from Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016),
establishes that the government may not put substantial and
unjustified obstacles in the way of a woman’s exercise of her
right to an abortion pre-viability. The government, however,
has identified no constitutionally sufficient justification for
asserting a veto right over J.D. and Texas law.
Judge Kavanaugh’s dissenting opinion claims that the
court has somehow broken new constitutional ground by
authorizing “immediate abortion on demand” by “unlawful
immigrant minors” (Judge Kavanaugh’s Dissent Op. 1). What
new law? It cannot be J.D.’s status as an undocumented
immigrant because the government has accepted that her status
does not affect her constitutional right to an abortion, as Judge
Kavanaugh’s opinion acknowledges on the next page (Dissent
Op. 2). Accordingly, in this litigation, J.D., like other minors
in the United States who satisfy state-approved procedures, is
entitled under binding Supreme Court precedent to choose to
terminate her pregnancy. See, e.g., Bellotti v. Baird, 443 U.S.
622 (1979). The court’s opinion gives effect to that
concession; it does not create a “radical” “new right” (Judge
Kavanaugh Dissent Op. 1) by doing so. 1
1
Because at no point in its briefing or oral argument in this
court or the district court did the government dispute that J.D. has a
constitutional right to obtain an abortion, the government has
forfeited any argument to the contrary. See, e.g., Koszola v. FDIC,
3
Beyond that, it is unclear why undocumented status should
change everything. Surely the mere act of entry into the United
States without documentation does not mean that an
immigrant’s body is no longer her or his own. Nor can the
sanction for unlawful entry be forcing a child to have a baby.
The bedrock protections of the Fifth Amendment’s Due
Process Clause cannot be that shallow.
Abortion on demand? Hardly. Here is what this case
holds: a pregnant minor who (i) has an unquestioned
constitutional right to choose a pre-viability abortion, and (ii)
has satisfied every requirement of state law to obtain an
abortion, need not wait additional weeks just because she—in
the government’s inimitably ironic phrasing—“refuses to
leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That
sure does not sound like “on demand” to me. Unless Judge
Kavanaugh’s dissenting opinion means the demands of the
Constitution and Texas law. With that I would agree.
1. Sponsorship
The centerpiece of the panel order (and now Judge
Kavanaugh’s dissenting opinion at 2-3) was the conclusion that
forcing J.D. to continue her pregnancy for multiple more weeks
is not an “undue burden” as long as the sponsorship search is
undertaken “expeditiously.” Panel Order at 1. The panel order
then treated its ordered eleven-day delay as just such an
expeditious process.
But that starts the clock long after the horses have left the
gate. The sponsorship search has already been underway for
393 F.3d 1294, 1299 n.1 (D.C. Cir. 2005). In fact, at oral argument,
government counsel affirmed, in response to a direct question, that
the argument was waived in this case. Oral Arg. 17:50; see, e.g., GSS
Group Ltd. v. National Port Auth. of Liberia, 822 F.3d 598, 608
(D.C. Cir. 2016).
4
now-almost seven weeks. Throughout all of that time, the
government was under a statutory obligation to find a sponsor
if one was available. See 8 U.S.C. § 1232(c)(2). None
materialized. Tacking on another eleven days to an already
nearly seven-week sponsorship hunt—that is, enforcing an
almost nine week delay before J.D. can even start again the
process of trying to exercise her right—is the antithesis of
expedition. A nine-week waiting period before litigation can
start or resume, if adopted by a State, would plainly be
unconstitutional. Cf. Whole Woman’s Health, 136 S. Ct. at
2318 (striking restrictions on abortion providers as unduly
burdensome, noting in part “clinics’ experiences since the
admitting-privileges requirement went into effect of 3-week
wait times”) (citations omitted).
For very good reason, the sponsorship process is anything
but expeditious. The sponsor is much like a foster parent,
someone who chooses to house and provide for a child
throughout her time in the United States, and who promises to
ensure her appearance at all immigration proceedings. To
protect these acutely vulnerable children from trafficking,
sexual exploitation, abuse, and neglect, Congress requires the
Department of Health and Human Services to be careful in its
review and restrictive in who can apply. See 8 U.S.C. § 1232.
To that end, agency regulations provide that potential sponsors
must either be related to J.D. or have some “bona fide social
relationship” with the child that “existed before” her arrival in
the United States. 2
2
Office of Refugee Resettlement, Section 2: Safe and Timely
Release from ORR Care, available at
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-
states-unaccompanied-section-2 (last visited Oct. 24, 2017) (“In the
absence of sufficient evidence of a bona fide social relationship with
the child and/or the child’s family that existed before the child
5
On top of that, the panel’s order did not say that, at the
end of its eleven days, J.D. could terminate her pregnancy if no
sponsor were found. Quite the opposite: The order just
stopped everything—except, critically, the continuation of
J.D.’s pregnancy—until October 31st, at which time J.D.
would have to restart the litigation all over again unless a
sponsor was lucked upon. There is nothing expeditious about
the prolonged and complete barrier to J.D.’s exercise of her
right to terminate her pregnancy that the panel order allowed
the government to perpetuate.
Nor was any constitutionally sound justification for the
order’s imposition of eleven more days on top of the already
elapsed seven weeks ever advanced by the government. In fact,
the government (i) never requested a stay to find a sponsor; (ii)
never asked for a remand; (iii) never suggested in briefing or
oral argument that there was any prospect of finding a sponsor
at all, let alone finding one in the next eleven days or even in
the foreseeable future; (iv) never even hinted, since no family
member has been approved as a sponsor, that a non-family
member could be identified, vetted, and take custody of J.D.
within eleven days; and (v) never made any factual or legal
argument contending that the already-seven-week-long-and-
counting sponsorship process was an “expeditious” process or
the type of short-term burden that could plausibly pass muster
under Supreme Court precedent to bar an abortion.
All the government argues with respect to sponsorship was
that its flat and categorical prohibition of J.D.’s abortion was
permissible because she could leave government custody if a
sponsor were found or she surrendered any claim of legal right
to stay here and voluntarily departed. Oral Arg. 12:35; 24:30–
migrated to the United States, the child will not be released to that
individual.”) (emphases added).
6
25:15. Custody, the government insists, is the unaccompanied
child’s problem to solve.
A detained, unaccompanied minor, however, has precious
little control over the sponsorship process. The Department of
Health and Human Services is statutorily charged with finding,
vetting, and approving sponsors. See 8 U.S.C. § 1232(c); 6
U.S.C. § 279. So the government’s position that J.D. cannot
exercise her constitutional right unless the government
approves a sponsor imposes a flat prohibition on her
reproductive freedom that J.D. has no independent ability to
overcome.
Nor does sponsorship bear any logical relationship to
J.D.’s decision to terminate the pregnancy. Because J.D. has
obtained a judicial bypass order from a Texas court that allows
her to decide for herself whether an abortion is in her own best
interests, a sponsor would have no ability to control or
influence J.D.’s decision. See Texas Family Code § 33.003(i-
3). Accordingly, finding a sponsor and allowing J.D. to
exercise her unchallenged constitutional right are not mutually
exclusive. The two can and should proceed simultaneously.
Judge Kavanaugh’s dissenting opinion (at 4) suggests that
it would be good to put J.D. “in a better place when deciding
whether to have an abortion.” That, however, is not any
argument the government ever advanced. The only value of
sponsorship identified by the government was that
sponsorship, like voluntary departure from the United States,
would get J.D. and her pregnancy out of the government’s
hands.
In any event, even if sponsorship, as Judge Kavanaugh
supposes, might be more optimal in a policy sense, J.D. has
already made her decision, and neither the government nor the
dissenting opinion identifies a constitutionally sufficient
justification consistent with Supreme Court precedent for
7
requiring J.D. to wait for what may or may not be a better
environment. The dissenting opinion further assumes that J.D.
is different because she lacks a “support network of friends and
family.” Judge Kavanaugh’s Dissent Op. 5. Unfortunately, the
central reason for the bypass process is that pregnant girls and
women too often find themselves in dysfunctional and
sometimes dangerous situations—such as with sexually or
physically abusive parents and spouses—in which those
networks have broken down. See Texas Family Code
§ 33.003(i-3) (authorizing bypass when the court finds that “the
notification and attempt to obtain consent would not be in the
best interest of the minor[]”). It thus would require a troubling
and dramatic rewriting of Supreme Court precedent to make
the sufficiency of someone’s “network” an added factor in
delaying the exercise of reproductive choice even after
compliance with all state-mandated procedures.
“Voluntary” departure is not a constitutionally adequate
choice either given both the life-threatening abuse that J.D.
claims to face upon return, and her potential claims of legal
entitlement to remain in the United States. See Sealed Decl.; 8
U.S.C. § 1101(a)(27)(J) (special immigrant juvenile status); 8
C.F.R. § 204.11. 3 Notably, while presenting a legal argument
3
While the government now objects that J.D. has not
previously identified on which statutory basis she would seek relief
from removal, Appellants’ Opp’n to Reh’g Pet. 5–6, 14, J.D. has
argued all along that her exercise of her unchallenged right under the
Due Process Clause to an abortion could not be conditioned on her
“giv[ing] up her opportunity to be reunited with family here in the
United States, or forcing her to return to her home country and
abuse.” Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending
Appeal 18; see Pl.’s Reply in Supp. of Mot. for TRO 6 (“The
government should not be allowed to use her constitutional right to
access abortion as a bargaining chip to trade for immigration
status[.]”). While she had not yet cited to particular statutory
8
that relied heavily on voluntary departure to defend its abortion
prohibition, government counsel was unable to confirm at oral
argument whether or how voluntary departure actually works
for unaccompanied minors over whom the government is
exercising custody. See Oral Arg. 28:15–28:50; cf. 6 U.S.C.
§ 279(b)(2)(B) (restricting the release of unaccompanied
minors on their own recognizance). The government has put
nothing in the record to suggest that it is in the practice of
putting children on airplanes all alone and just shipping them
back to abusive and potentially life-endangering situations.
2. Facilitation
The government argues that it need not “facilitate” J.D.’s
decision to terminate her pregnancy. But the government is
engaged in verbal alchemy. To “facilitate” something means
“[t]o make (an action, process, etc.) easy or easier; to promote,
help forward; to assist in bringing about (a particular end or
result).” 4 This case does not ask the government to make things
easier for J.D. The government need not pay for J.D.’s
abortion; she has that covered (with the assistance of her
guardian ad litem). The government need not transport her at
any stage of the process; J.D. and her guardian ad litem have
arranged for that. Government officials themselves do not even
have to do any paperwork or undertake any other
administrative measures. The contractor detaining J.D. has
advised that it is willing to handle any necessary logistics, just
as it would for medical appointments if J.D. were to continue
her pregnancy. The government also admitted at oral argument
provisions, that presumably is because the government has not yet
initiated removal proceedings.
4
See OXFORD ENGLISH DICTIONARY ONLINE (“facilitate” def.
1(a)), http://www.oed.com/view/Entry/67460?redirectedFrom=
facilitate#eid (last visited Oct. 24, 2017).
9
that, in light of the district court’s order, the Department of
Health and Human Services does not even need to complete its
own self-created internal “best interests” form. See Oral Arg.
31:40–33:15. So on the record of this case, the government
does not have to facilitate—make easier—J.D.’s termination of
her pregnancy. It just has to not interfere or make things
harder.
The government’s suggestion of sponsorship as a
facilitation-free panacea also overlooks that it would require
substantial governmental effort and resources for J.D. to be
placed into the hands of a sponsor who must enter into an
agreement with the government and is responsible for ensuring
the minor’s appearance at all immigration proceedings. 5 While
after expending all of its resources to find, vet and approve the
transfer, the government’s ongoing ties to sponsors are
presumably less than for a grantee, the government has put no
facts in the record or any argument as to why that difference in
degree should be constitutionally sufficient. In any event,
transferring J.D. into the custody of the guardian ad litem to
obtain the abortion would require far less use of governmental
resources and personnel and far less facilitation. The
government’s desire to have as little to do as possible with
J.D.’s exercise of her constitutional right while in custody thus
seems erratic.
The government’s claim that it does not think that an
abortion is in J.D.’s best interests does not work either. The
judicial bypass already put that best interests decision in J.D.’s
hands. On top of that, the government does not even claim that
it is making an individualized “best interests” judgment in
5
See Office of Refugee Resettlement, Section 2.8.1: After Care
Planning, available at
https://www.acf.hhs.gov/orr/resource/children-entering-the-united-
states-unaccompanied-section-2 (last visited Oct. 24, 2017).
10
forbidding J.D.’s abortion. It is simply supplanting her legally
authorized best interests judgment with its own categorical
position against abortion—which is something not even a
parent or spouse or State could do. Only the big federal
government gets this veto, we are told.
The government unquestionably is fully entitled to have its
own view preferring the continuation of pregnancy, and to even
require the disclosure of information expressing that view. But
the government’s mere opposition to J.D.’s decision is not an
individualized “best interests” judgment within any legally
recognized meaning of that term, and its asserted categorical
bar to abortion is without constitutional precedent.
3. Abuse of Discretion Review
In resolving this case, it must be remembered that this case
arises on abuse-of-discretion review of a district court’s
injunctive order. See, e.g., Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). And
the expedition with which the panel and now the en banc court
have acted underscores that time is a zero-sum matter in this
case. J.D. is already into the second trimester of her pregnancy,
which means that, as days slip by, the danger that the delayed
abortion procedure poses to her health increases materially.
We are told that waiting even another week could increase the
risk to J.D.’s health, the potential complexity of the procedure,
and the great difficulty of locating an abortion provider in
Texas. 6 The sealed declaration filed in this case attests that a
6
Oral Arg. 1:13:45-1:15:10 (Counsel for J.D.: “Texas law
requires counseling at least 24 hours in advance of the procedure by
the same doctor who is to provide the abortion. Because of the
limited availability of doctors to provide abortions in Texas, the same
doctor is not always at the facility in south Texas. So, for example,
the doctor that provided the counseling yesterday to J.D. is there
11
compelled return to her country at this time would expose her
to even more life-threatening physical abuse.
The irreparable injury to J.D. of postponing termination of
her pregnancy—the weekly magnification of the risks to her
health and the ever-increasing practical barriers to obtaining an
abortion in Texas—have never been factually contested by the
government. J.D.’s counsel has advised, and the government
has not disputed, that she is on the cusp of having to travel
today and on Saturday, but is not the same doctor who is there next
week. So next week, there is a different doctor there on Monday and
Tuesday, so if J.D. were allowed to have the abortion next week, she
would have to be, unless this court declares otherwise, * * *
counseled by this different doctor there on Monday and wait 24 hours
to have the abortion on Tuesday. * * * [After Tuesday October 24,
2017], we are looking at the following week. The doctor that is there
Thursday, Friday and Saturday, the following week * * * [is the
doctor that only performs abortions at 15.6 weeks]. And we are very
concerned that she is on the cusp, so even if she is able to go next
week, she may be past the limit for that particular doctor.”); Reh’g
Pet. 4–5; Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending
Appeal 3; see Williams v. Zbaraz, 442 U.S. 1309, 1314–1315 (1979)
(Stevens, J., sitting as Circuit Justice) (evidence of an increased risk
of “maternal morbidity and mortality” supports a claim of irreparable
injury); Linda A. Bartlett, et al., Risk Factors for Legal Induced
Abortion—Related Mortality in the United States, 103:4 OBSTETRICS
& GYNECOLOGY 729 (April 2004) (relative risk from abortion
increases 38% each gestational week); Cates, W. Jr, Schulz, K.F.,
Grimes, D.A., Tyler, C.W. Jr., The Effect of Delay and Method
Choice on the Risk of Abortion Morbidity, FAMILY PLANNING
PERSPECTIVES 1977; 9:266, 273 (“[I]f a woman delays beyond the
eighth week up to 10 weeks, the major morbidity rate is 0.36, which
is 57 percent higher than her risk at eight or fewer weeks. Similarly,
if she delays her abortion procedure until the 11-12-week interval,
she increases her relative risk of major morbidity by 91 percent.”).
12
hundreds of miles to obtain an abortion. See Appellee’s Opp’n
to Appellants’ Mot. for a Stay Pending Appeal 9 (representing
that, as of October 19, 2017, depending on which doctor is
available, it may be that J.D.’s “only option next week would
be to travel hundreds of miles to a more remote clinic”); Reh’g
Pet. 5; supra note 6. Likewise, at no time before the district
court or the panel did the government’s briefing or oral
argument dispute J.D.’s claim of severe child abuse or ask for
fact finding on that claim.
On the other side of the balance, the government asserts
only its opposition to an abortion by J.D. as an unaccompanied
minor in the custody of a Department of Health and Human
Services grantee. That is an acutely selective form of
resistance since the government acknowledges it would not
apply were J.D. to turn 18 and be moved to Immigration and
Customs Enforcement custody or were she a convicted
criminal in Bureau of Prisons custody. Oral Arg. 9:20–11:45.
Under current governmental policy and regulations, those
women are permitted to terminate their pregnancies. 7 Given
that dissonance in the government’s position, the balancing of
interests weighs heavily in J.D.’s favor.
In short, I fully agree with the en banc court’s decision to
deny the government’s motion for a stay and to remand for
further expeditious proceedings and any appropriate fact
finding, especially in light of the factual disputes surfaced for
the first time in the rehearing papers.
Because J.D.’s right to an abortion under the Due Process
Clause is unchallenged and because J.D. has done everything
that Texas law requires (and more) to obtain an abortion, the
government bore the burden of coming forward with a
7
See ICE Guidelines, Detention Standard 4.4, Medical Care,
available at https://www.ice.gov/doclib/detention-
standards/2011/medical_care_women.pdf; 28 C.F.R. § 551.23.
13
constitutionally sufficient justification for flatly forbidding
termination of her pregnancy. The government’s mere hope
that an unaccompanied, abused child would make the problem
go away for it by either (i) surrendering all of her legal rights
and leaving the United States, or (ii) finding a sponsor the
government itself could never find is not a remotely
constitutionally sufficient reason for depriving J.D. of any
control over this most intimate and life-altering decision. The
court today correctly recognizes that J.D.’s unchallenged right
under the Due Process Clause affords this 17-year-old a
modicum of the dignity, sense of self-worth, and control over
her own destiny that life seems to have so far denied her.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Does an alien minor who attempts to enter the United States
eight weeks pregnant—and who is immediately apprehended
and then in custody for 36 days between arriving and filing a
federal suit—have a constitutional right to an elective abortion?
The government has inexplicably and wrongheadedly failed to
take a position on that antecedent question. I say
wrongheadedly because at least to me the answer is plainly—
and easily—no. To conclude otherwise rewards lawlessness
and erases the fundamental difference between citizenship and
illegal presence in our country.
The en banc Court endorses or at least has no problem with
this result. By virtue of my colleagues’ decision, a pregnant
alien minor who attempts to enter the United States illegally is
entitled to an abortion, assuming she complies with state
abortion restrictions once she is here. Under my colleagues’
decision, the minor need not have “developed substantial
connections with this country,” United States v. Verdugo-
Urquidez, 494 U.S. 259, 271 (1990), as the plaintiff here
plainly has not. Under my colleagues’ decision, the minor need
not have “effected an entry into the United States,” Zadvydas
v. Davis, 533 U.S. 678, 693 (2001), because the plaintiff here
did not, see id. (alien “paroled into the United States pending
admissibility,” without having “gained [a] foothold,” has “not
effected an entry”). Under my colleagues’ decision, it is
difficult to imagine an alien minor anywhere in the world who
will not have a constitutional right to an abortion in this
country. Their action is at odds with Supreme Court precedent.
It plows new and potentially dangerous ground. Accordingly,
I dissent from the vacatur of the stay pending appeal.
I. BACKGROUND
In or about early July 2017, 17-year-old Jane Doe (J.D.)
became pregnant. On or about September 7, 2017, she
attempted to enter the United States illegally and
2
unaccompanied. By J.D.’s own admission, authorities detained
her “upon arrival.” District Court Docket Entry (Dkt. No.) 1-
13 at 1. She has since remained in federal custody—in a
federally funded shelter—because she is an “unaccompanied
alien child.” 6 U.S.C. § 279(g)(2) (“unaccompanied alien
child” is “a child who,” inter alia, “has no lawful immigration
status in the United States” and “has not attained 18 years of
age”).
The Office of Refugee Resettlement (ORR) of the United
States Department of Health and Human Services (HHS) is
responsible for “unaccompanied alien children who are in
Federal custody by reason of their immigration status.” 6
U.S.C § 279(b)(1)(A). In March 2008, HHS announced a
“[p]olicy” that “[s]erious medical services, including . . .
abortions, . . . require heightened ORR involvement.” HHS,
Medical Services Requiring Heightened ORR Involvement
(Mar. 21, 2008), perma.cc/LDN8-JNL5. In March 2017,
consistent with that policy, ORR further announced that shelter
personnel “are prohibited from taking any action that facilitates
an abortion without direction and approval from the Director
of ORR.” Dkt. No. 3-5 at 2.
According to the declaration of an ORR official, J.D. was
physically examined while in custody and “was informed that
she [is] pregnant.” Dkt. No. 10-1 at 2. J.D.’s counsel interprets
the declaration to say that “J.D. did not learn that she was
pregnant until after her arrival in the United States.” Pl.’s Opp.
to Defs.’ Emergency Mot. for Stay Pending Appeal (Opp.) 22-
23; see also Panel Dissent of Millett, J. (Panel Dissent) 2
(“After entering the United States, [J.D.] . . . learned that she is
pregnant.”). But the declaration does not rule out that J.D.
knew she was pregnant even before the examination. Nor has
J.D. herself alleged that she first learned of her pregnancy in
this country. See generally Dkt. No. 1-13 at 1 (J.D.’s
3
declaration in support of complaint). And it is highly likely she
knew when she attempted to enter the United States that she
was pregnant, as she was at least eight weeks pregnant at the
time. 1 Notably, elective abortion is illegal in J.D.’s home
country. Oral Arg. Recording 29:19-29:34.
J.D. requested an abortion. The evidence before us is that
it is an elective abortion: nothing indicates it is necessary to
preserve J.D.’s health. 2 J.D.’s request was relayed to the ORR
Director, who denied it. On October 13, 2017—having spent a
mere 36 days in the United States, all of them in custody—J.D.
filed suit in district court, enlisting this country’s courts to
vindicate (inter alia) her alleged Fifth Amendment right to an
abortion. The next day, she applied for a temporary restraining
order (TRO) and moved for a preliminary injunction.
The government opposed J.D.’s application and motion.
For reasons known only to the government, it did not take a
position on whether J.D.—as an alien who attempted to enter
the United States illegally and who has no substantial
connections with this country—has any constitutional right to
an abortion. Instead the government argued that ORR has
placed no “undue burden” on the alleged right. Dkt. No. 10 at
11-16 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833 (1992)). At the TRO hearing, the district court repeatedly
pressed the government about whether J.D. has a constitutional
right to an abortion. The government emphasized that it was
1
A recent declaration filed under seal by J.D.’s attorney ad
litem provides further circumstantial evidence that J.D. left her home
country because of her pregnancy. Cortez Decl. ¶ 8.
2
At oral argument, HHS stated its policy is that an emergency
abortion, which it interprets to include a “medically necessary”
abortion, would be allowed. Oral Arg. Recording 20:00-20:27.
4
“not taking a . . . position” but was “not going to give [the court]
a concession” either. Opp., Supplement 14.
The district court issued a TRO requiring that the
government allow J.D. to be transported to an abortion provider
for performance of the procedure. The government appealed
the TRO to this Court and sought a stay pending appeal. At
oral argument, the government repeatedly stated that it takes no
position on whether J.D. has a constitutional right to an
abortion, Oral Arg. Recording 8:10-8:46, 16:43-17:12, and that
it instead “assume[s] for the purposes of . . . argument” that she
has such a right, Oral Arg. Recording 17:27-17:52. 3
On October 20, 2017, over a dissent, a motions panel of
this Court issued an order directing the district court to allow
HHS until close of business October 31 to find a suitable
sponsor to take custody of J.D. so that HHS can release her
from its custody. Without deciding whether J.D. has a
constitutional right to an abortion, the panel concluded that a
short delay to secure a sponsor does not unduly burden any
alleged right if the process is expeditiously completed by close
of business October 31.
3
Under insistent pressure to state whether the government was
“waiving” the issue, counsel for the government said yes in the heat
of the moment. Oral Arg. Recording 17:41-17:52. But the next
moment, when reminded of the difference between forfeiture and
waiver—a distinction that lawyers often overlook or misunderstand,
cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (even “jurists
often use the words interchangeably”)—counsel effectively retracted
the foregoing statement, saying she was “not authorized to take a
position” on whether J.D. has a constitutional right to an abortion,
Oral Arg. Recording 17:52-18:51.
5
On October 22, 2017, J.D. filed a petition for rehearing en
banc. Today, the Court grants the petition, vacates the panel’s
October 20 order and denies the government’s motion for stay
pending appeal “substantially for the reasons set forth in” the
panel dissent.
II. ANALYSIS
As I noted at the outset, the en banc Court’s decision in
effect means that a pregnant alien minor who attempts to enter
the United States illegally is entitled to an abortion, assuming
she complies with state abortion restrictions once she is here.
Although the government has for some reason failed to dispute
that proposition, it is not the law.
A. WE CAN AND MUST DECIDE THE ANTECEDENT
QUESTION OF WHETHER J.D. HAS A CONSTITUTIONAL
RIGHT TO AN ABORTION.
The Supreme Court has held that if a party “fail[s] to
identify and brief” “an issue ‘antecedent to . . . and ultimately
dispositive of’ the dispute,” an appellate court may consider the
issue sua sponte. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v. Ohio
Power Co., 498 U.S. 73, 77 (1990)); cf. United States v. Bowie,
198 F.3d 905, 913 (D.C. Cir. 1999) (“We are never bound to
accept the government’s confession of error” (citing Young v.
United States, 315 U.S. 257, 258 (1942), United States v.
Pryce, 938 F.2d 1343, 1351-52 (D.C. Cir. 1991) (Randolph, J.,
concurring))). Here, the question of whether J.D. has a
constitutional right to an abortion is “antecedent to” any issue
of undue burden. And the antecedent question is “dispositive
of” J.D.’s Fifth Amendment claim, at least now that my
colleagues have reinstated the TRO on the apparent theory that
the claim is likely meritorious. Accordingly, we can and
should expressly decide the antecedent question.
6
True, we should not ordinarily confront a broad
constitutional question “if there is also present some other
ground upon which the case may be disposed of,” Ashwander
v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring),
including if the alternative is a “narrower” constitutional
ground, Greater New Orleans Broad. Ass’n v. United States,
527 U.S. 173, 184 (1999). 4 But in the analogous context of
qualified immunity, we are “permitted . . . to avoid
avoidance—that is, to determine whether a right exists before
examining” the narrower question of whether the right “was
clearly established” at the time an official acted. Camreta v.
Greene, 563 U.S. 692, 706 (2011). Our discretion in that area
rests on the recognition that it “is sometimes beneficial to
clarify the legal standards governing public officials.” Id. at
707. The same interest is, to put it mildly, implicated here.
Border authorities, immigration officials and HHS itself would
be well served to know ex ante whether pregnant alien minors
who come to the United States in search of an abortion are
constitutionally entitled to one. And under today’s decision,
pregnant alien minors the world around seeking elective
abortions will be on notice that they should make the trip. 5
4
We cannot duck a broad constitutional question if the
alternative ground is not “an adequate basis for decision.” Greater
New Orleans Broad. Ass’n, 527 U.S. at 184. At the panel stage, the
possibility of expeditious sponsorship was an adequate narrower
basis for our decision to briefly delay J.D.’s abortion. By contrast,
today’s result—which has the real-world effect of entitling J.D. to an
abortion—is difficult to explain unless it rests at least in part on the
proposition that J.D. has a constitutional right to an abortion. Even
if I were to assume, without in any way conceding, that J.D. had such
a constitutional right, I would nonetheless stand by the panel order.
5
The panel dissent paid lip service to constitutional avoidance,
Panel Dissent 8, before sweepingly declaring that when alien minors
7
Granted, because of the government’s failure to take a
position, 6 we in theory have discretion not to decide the
antecedent question. But in reality the ship has sailed: as a
result of my colleagues’ decision, J.D. will soon be on her way
to an abortion procedure she would not receive absent her
invocation of the Fifth Amendment. If ever there were a case
in which the public interest compels us to exercise our
“independent power to identify and apply the proper
construction of governing law” irrespective of a party’s
litigating position, U.S. Nat’l Bank of Or., 508 U.S. at 446(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
“find themselves on our shores and pregnant” and seeking an
abortion, “the Constitution forbids the government from directly or
effectively prohibiting their exercise of that right in the manner it has
done here.” Panel Dissent 9-10 (emphases added). That is not
judicial modesty.
6
I could not disagree more strongly with Judge Millett’s
characterization of the government’s position on the merits—i.e.,
that it outright “waived” any contention that J.D. has no
constitutional right to an abortion. Millett Concurrence 2-3 n.1. She
must have read different papers and listened to a different argument
from the ones I read and listened to. A waived argument “is one that
a party has knowingly and intelligently relinquished.” Wood v.
Milyard, 132 S. Ct. 1826, 1832 n.4 (2012). The government has
declared time and again that it is not taking a position on whether
J.D. has a constitutional right to an abortion. That is not waiver.
Government counsel in the district court stated that he was neither
raising nor conceding the point. That is not waiver. Government
counsel in this Court stated that she lacked authority to take a
position. That, too, is not waiver: counsel who disclaims such
authority cannot relinquish an argument any more than she can
advance one. All this is beside the point, however, because of our
independent duty to declare the law. See U.S. Nat’l Bank of Or., 508
U.S. at 446.
8
(1991)), this is it. The stakes, both in the short run and the long,
could scarcely be higher.
B. J.D. HAS NO CONSTITUTIONAL RIGHT
TO AN ABORTION.
J.D. is not a U.S. citizen. She is not a permanent resident,
legal or otherwise. According to the record, she has no
connection to the United States, let alone “substantial”
connections. Despite her physical presence in the United
States, J.D. has never entered the United States as a matter of
law and cannot avail herself of the constitutional rights
afforded those legally within our borders. Accordingly, under
a correct interpretation of the law, J.D. has virtually no
likelihood of success on the merits and the TRO issued by the
district court should remain stayed. See Mazurek v. Armstrong,
520 U.S. 968, 970 (1997) (preliminary injunctive relief
unavailable if the plaintiff cannot establish a likelihood of
success on the merits).
“The distinction between an alien who has effected an
entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas v. Davis, 533 U.S.
678, 693 (2001). Thus a young girl detained at Ellis Island for
a year, and then released to live with her father in the United
States for nearly a decade, “was to be regarded as stopped at
the boundary line and kept there unless and until her right to
enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230
(1925). Even after she was no longer detained, “[s]he was still
in theory of law at the boundary line and had gained no
foothold in the United States.” Id. Nearly six decades ago the
Supreme Court had already said that “[f]or over a half century
this Court has held that the detention of an alien in custody
pending determination of his admissibility does not legally
constitute an entry though the alien is physically within the
9
United States.” Leng May Ma v. Barber, 357 U.S. 185, 188
(1958).
Aliens who have entered the United States—even if
illegally—enjoy “additional rights and privileges not extended
to those . . . who are merely ‘on the threshold of initial entry.’”
Id. at 187 (quoting Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 212 (1953)). “[A]liens receive constitutional
protections when they have come within the territory of the
United States and developed substantial connections with this
country.” United States v. Verdugo-Urquidez, 494 U.S. 259,
271 (1990). Until then—before developing the “substantial
connections” that constitute “entry” for an illegally present
alien—“[t]he Bill of Rights is a futile authority for the alien
seeking admission for the first time to these shores.” Bridges
v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring).
We have repeatedly recognized this principle, as have our
sister circuits and, most important, as has the Supreme Court.
See Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,
concurring in the judgment); Demore v. Kim, 538 U.S. 510, 546
(2003); Shaughnessy, 345 U.S. at 215; Kaplan, 267 U.S. at
230; United States v. Ju Toy, 198 U.S. 253, 263 (1905) (alien
petitioner, “although physically within our boundaries, is to be
regarded as if he had been stopped at the limit of our
jurisdiction, and kept there while his right to enter was under
debate”); Kiyemba v. Obama, 555 F.3d 1022, 1036-37 n.6
(D.C. Cir. 2009) (Rogers, J., concurring in the judgment)
(quoting Mezei, Leng May Ma and Ju Toy in support of
proposition that habeas court can order detainee brought within
U.S. territory without thereby effecting detainee’s “entry” for
any other purpose), vacated on other grounds, 559 U.S. 131(2010); Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d
1374, 1383 (D.C. Cir. 1990) (Sentelle, J., concurring)
10
(summarizing the entry doctrine). 7 Because she has never
entered the United States, J.D. is not entitled to the due process
protections of the Fifth Amendment. See Albathani v. INS, 318
F.3d 365, 375 (1st Cir. 2003) (“As an unadmitted alien present
in the United States, Albathani’s due process rights are
limited”). This is, or should be, clear from the controlling and
7
See also Albathani v. INS, 318 F.3d 365, 375 (1st Cir. 2003);
Nwozuzu v. Holder, 726 F.3d 323, 330 n.6 (2d Cir. 2013) (discussing
Kaplan); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954)
(“in a literal and physical sense a person coming from abroad enters
the United States whenever he reaches any land, water or air space
within the territorial limits of this nation” but “those who have come
from abroad directly to [an inspection] station seeking admission in
regular course have not been viewed by the courts as accomplishing
an ‘entry’ by crossing the national boundary in transit or even by
arrival at a port so long as they are detained there pending formal
disposition of their requests for admission”); United States v. Carpio-
Leon, 701 F.3d 974, 981 (4th Cir. 2012) (“the crime of illegal entry
inherently carries this additional aspect that leaves an illegal alien’s
status substantially unprotected by the Constitution in many
respects”); Gonzalez v. Holder, 771 F.3d 238, 245 (5th Cir. 2014)
(alien who entered the United States illegally at age seven and
remained for the next 17 years was, under Kaplan, deportable and
ineligible for derivative citizenship despite his father’s intervening
naturalization); Vitale v. INS, 463 F.2d 579, 582 (7th Cir. 1972)
(paroled alien “did not effect an entry into the United States”);
Montgomery v. Ffrench, 299 F.2d 730, 733 (8th Cir. 1962)
(discussing Kaplan); United States v. Argueta-Rosales, 819 F.3d
1149, 1158 (9th Cir. 2016) (“for immigration purposes, ‘entry’ is a
term of art requiring not only physical presence in the United States
but also freedom from official restraint”); United States v. Canals-
Jimenez, 943 F.2d 1284, 1286, 1288 (11th Cir. 1991) (reversing
conviction of alien “found in” the United States illegally because
alien never “entered” the United States in the sense of Kaplan and
Leng May Ma).
11
persuasive authorities marshaled above, which are only a
fraction of the whole.
Even if J.D. did enjoy the protections of the Due Process
Clause, however, due process is not an “all or nothing”
entitlement. In some cases “[i]nformal procedures will
suffice,” Goldberg v. Kelly, 397 U.S. 254, 269 (1970);
“consideration of what procedures due process may require”
turns on “the precise nature of the government function” and
the private interest. Cafeteria Workers Union v. McElroy, 367
U.S. 886, 895 (1961). What the Congress and the President
have legitimately deemed appropriate for aliens “on the
threshold” of our territory, the judiciary may not contravene.
“It is not within the province of the judiciary to order that
foreigners who have never been naturalized, nor acquired any
domicile or residence within the United States, nor even been
admitted into the country pursuant to law, shall be permitted to
enter. . . . As to such persons, the decisions of executive or
administrative officers, acting within powers expressly
conferred by congress, are due process of law.” Nishimura
Ekiu v. United States, 142 U.S. 651, 660 (1892) (emphasis
added). There is a “class of cases” in which “the acts of
executive officers, done under the authority of congress, [are]
conclusive.” Murray’s Lessee v. Hoboken Land & Imp. Co.,
59 U.S. (18 How.) 272, 284 (1855). Among that class of cases
are those brought by aliens abroad, including those who are
“abroad” under the entry doctrine. See Din, 135 S. Ct. at 2139-
40 (Kennedy, J., concurring in the judgment); Kleindienst v.
Mandel, 408 U.S. 753, 769-70 (1972).
Mandel teaches that the Congress’s “plenary power” over
immigration requires the courts to strike a balance between
private and public interests different from the due process that
typically obtains. The Supreme Court “without exception has
sustained” the Congress’s power to exclude aliens, a power
12
“inherent in sovereignty,” consistent with “ancient principles”
of international law and “to be exercised exclusively by the
political branches of government.” Mandel, 408 U.S. at 765-
66. Indeed, “over no conceivable subject is the legislative
power of Congress more complete.” Id. at 766 (quoting
Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339
(1909)) (alteration omitted). The Congress’s power to exclude
includes the power “to prescribe the terms and conditions upon
which [aliens] may come to this country, and to have its
declared policy in that regard enforced exclusively through
executive officers, without judicial intervention.” Id. (quoting
Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895)).
Whatever the merits of different applications of due process
“were we writing on a clean slate,” “the slate is not clean.” Id.(quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). We must
therefore yield to the Executive, exercising the power lawfully
delegated to him, when he “exercises this power negatively on
the basis of a facially legitimate and bona fide reason.” Id. at
770. Moreover, this deference is required even when the
constitutional rights of U.S. citizens are affected: we may not
“look behind the exercise of that discretion, nor test it by
balancing its justification against the First Amendment
interests” of citizens “who seek personal communication with”
the excluded alien. Id. Thus in Mandel, the Executive
permissibly prohibited an alien communist intellectual to travel
to the United States, where he had been scheduled to speak at
several universities.
Applying Mandel, the Supreme Court recently approved
the Executive’s denial of entry to an Afghan man whose U.S.-
citizen wife was waiting for him in this country. Din, 135 S.
Ct. at 2131 (plurality opinion). The Court in Din was divided
not only over whether the wife had any due process interest in
her husband’s attempt to immigrate but also over whether that
hypothetical interest had been infringed. Compare id.
13
(plurality opinion) (three justices concluding that there is no
due process right “to live together with [one’s] spouse in
America”), with id. at 2139 (Kennedy, J., concurring in the
judgment) (two justices concluding that, even if such a right
exists, the Government’s visa-denial notice is all that due
process can require). Citing Mandel, Justice Kennedy reasoned
that the government’s action in Din was valid, even though it
“burden[ed] a citizen’s own constitutional rights,” because it
was made “on the basis of a facially legitimate and bona fide
reason.” Id. at 2139 (Kennedy, J., concurring in the judgment)
(quoting Mandel, 408 U.S. at 770). 8 Justice Scalia, writing for
himself, the Chief Justice and Justice Thomas, criticized the
dissent’s endorsement of the novel substantive due process
right asserted by the plaintiff, which he characterized as, “in
any world other than the artificial world of ever-expanding
constitutional rights, nothing more than a deprivation of her
spouse’s freedom to immigrate into America.” Id. at 2131
(plurality opinion).
Mandel applies with all the more force here, where a
substantive due process right is asserted not by a U.S. citizen,
nor by a lawful-permanent-resident alien, nor even by an
illegally resident alien, but by an alien minor apprehended
attempting to cross the border illegally and thereafter detained
by the federal government. If J.D. can be detained
indefinitely—which she can be, see Zadvydas, 533 U.S. at 693(distinguishing Shaughnessy, 345 U.S. 206)—and if she can be
returned to her home country to prevent her from engaging in
disfavored political speech in this country—which she can be,
Mandel, 408 U.S. at 770—and if she can be paroled into the
United States for a decade or more, Kaplan, 267 U.S. at 230,
8
Justice Kennedy’s opinion in Din, because it is narrower than
the plurality opinion, is controlling. See Marks v. United States, 430
U.S. 188, 193 (1977).
14
register for the draft, Ng Lin Chong v. McGrath, 202 F.2d 316,
317 (D.C. Cir. 1952), and see her parents naturalized, Gonzalez
v. Holder, 771 F.3d 238, 239 (5th Cir. 2014), only for her still
to be deported with cursory notice, 8 U.S.C. § 1225—then she
cannot successfully assert a due process right to an elective
abortion.
In concluding otherwise, the Court elevates the right to
elective abortion above every other constitutional entitlement.
Freedom of expression, Mandel, 408 U.S. at 770, freedom of
association, Galvan, 347 U.S. at 523, freedom to keep and bear
arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir.
2012), freedom from warrantless search, Verdugo-Urquidez,
494 U.S. at 274-75, and freedom from trial without jury,
Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) all must
yield to the “plenary authority” of the Congress and the
Executive, acting in concert, to regulate immigration; but the
freedom to terminate one’s pregnancy is more fundamental
than them all? This is not the law. 9
9
The panel dissent simply assumed that the Supreme Court’s
abortion decisions involving U.S. citizen women—from Roe v. Wade
to Whole Woman’s Health—apply mutatis mutandis to illegal alien
minors. There is no legal analysis to support this assumption, see
generally Panel Dissent 3-6, which is untenable for the reasons I have
described. Judge Millett’s subsequent opinion concurring in the
Court’s en banc disposition does nothing to address that deficit,
offering scarce authority to support its assertion of the thwarting of
a “grave constitutional wrong” by the government and none that
addresses the antecedent constitutional question, which the Court
must decide but which Judge Millett dismisses as waived. Millett
Concurrence 2-3 n.1.
15
The panel dissent warned of outlandish scenarios that will
follow from staying the TRO, 10 Panel Dissent 9, but a stay
maintains the legal status quo. The United States remains a
signatory to the U.N. Convention Against Torture; our law
imposes civil liability on government agents who commit torts
and criminal liability on those who commit crimes; and counsel
have access to detained alien minors, as have J.D.’s counsel.
I cannot improve on the Chief Justice’s criticism of the “false
premise” that
our practice of avoiding unnecessary (and
unnecessarily broad) constitutional holdings
somehow trumps our obligation faithfully to
interpret the law. It should go without saying,
however, that we cannot embrace a narrow ground
of decision simply because it is narrow; it must also
be right. Thus while it is true that “[i]f it is not
necessary to decide more, it is necessary not to
decide more,” sometimes it is necessary to decide
more. There is a difference between judicial
restraint and judicial abdication. When
constitutional questions are “indispensably
necessary” to resolving the case at hand, “the court
must meet and decide them.”
Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J.,
concurring) (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (No.
11,558) (CC Va. 1833) (Marshall, C.J.)).
10
My colleague’s characterization of this case, see, e.g., Millett
Concurrence 13, gives it an undeservedly melodramatic flavor—and
indeed, from the record, especially the sealed affidavit of ORR’s
Jonathan White, is contrary to fact. Sealed Supp. to Defs.’ Resp. to
Pl.’s Pet. for Reh’g En Banc (Oct. 23, 2017). J.D. may be
sympathetic. But even the sympathetic are bound by longstanding
law.
16
The Constitution does not, and need not, answer every question
but diabetics, rape victims and women whose pregnancies
threaten their lives are nevertheless provided for. Contra Panel
Dissent 9.
Although the panel dissent found “deeply troubling” the
argument “that J.D. is not a person in the eyes of our
Constitution,” the argument is nevertheless correct. 11 The
panel dissent’s contrary conclusion is based on a
misunderstanding of the Supreme Court’s immigration due
process decisions, including a mistaken reliance on the dissent
in Jean v. Nelson, 472 U.S. 846, 875 (1985) (Marshall, J.,
dissenting). Writing for the Court in Jean, then-Justice
Rehnquist expressly declined to opine on the alien plaintiffs’
due process rights, see id. at 857 (majority opinion), much less
to hold—as Justice Marshall would have done—that
“regardless of immigration status, aliens within the territorial
jurisdiction of the United States are ‘persons’ entitled to due
process under the Constitution.” The Supreme Court has never
so held. 12 Contra Panel Dissent 9.
11
J.D.’s “personhood” has nothing to do with it. “American
citizens conscripted into the military service are thereby stripped of
their Fifth Amendment rights and as members of the military
establishment are subject to its discipline, including military trials for
offenses against aliens or Americans.” Eisentrager, 339 U.S. at 783.
No one suggests that members of the military—or here, J.D.—are
thereby not “persons.”
12
The panel dissent’s handling of Zadvydas v. Davis also merits
clarification. See Panel Dissent 9. Zadvydas is careful to distinguish
“an alien who has effected an entry into the United States and one
who has never entered” and restates Kaplan’s holding that “despite
nine years’ presence in the United States, an ‘excluded’ alien ‘was
still in theory of law at the boundary line and had gained no foothold
in the United States’” only three sentences before observing, in the
17
It is the panel dissent’s (and now the Court’s) position that
will unsettle the law, potentially to dangerous effect. Having
discarded centuries of precedent and policy, the majority offers
no limiting principle to constrain this Court or any other from
following today’s decision to its logical end. If the Due Process
Clause applies to J.D. with full force, there will be no reason
she cannot donate to political campaigns, despite 52 U.S.C. §
30121’s prohibition on contributions by nonresident foreign
nationals inasmuch as freedom of political expression is plainly
fundamental to our system of ordered liberty. See Citizens
United v. FEC, 558 U.S. 310, 340 (2010). I see no reason that
she may not possess a firearm, notwithstanding 18 U.S.C.
§ 922(g)(5)’s prohibition on doing so while “illegally or
unlawfully in the United States,” see Carpio-Leon, 701 F.3d at
975, inasmuch as “the Second Amendment conferred an
individual right to keep and bear arms,” District of Columbia
v. Heller, 554 U.S. 570, 595 (2008), in recognition of the “basic
right” of self-defense, McDonald v. City of Chicago, 561 U.S.
742, 767 (2010). Even the government’s ability to try accused
war criminals before U.S. military commissions in theater must
be reconsidered as it is premised on the Fifth Amendment’s
territoriality requirement, which today, by vacating the stay,
the Court has so summarily eroded. See Eisentrager, 339 U.S.
at 784-85.
Heedless of the entry doctrine, its extensive pedigree in
our own precedent and its controlling effect in this case, the
Court today assumes away the question of what (if any) process
is due J.D. and proceeds to a maximalist application of some of
the most controverted case law in American jurisprudence. It
does so over the well-founded objections of an Executive
passage quoted by the panel dissent, that “once an alien enters the
country, the legal circumstance changes.” Zadvydas, 533 U.S. at 693(emphasis added). Zadvydas uses “entry” in its technical sense.
18
authorized to pursue its legitimate interest in protecting fetal
life. See Gonzales v. Carhart, 550 U.S. 124, 145 (2007) (“the
government has a legitimate and substantial interest in
preserving and promoting fetal life”); Casey, 505 U.S. at 853(recognizing States’ “legitimate interests in protecting prenatal
life”); Roe v. Wade, 410 U.S. 113, 150 (1973) (recognizing “the
State’s interest—some phrase it in terms of duty—in protecting
prenatal life”). Far from faithfully applying the Supreme
Court’s abortion cases, this result contradicts them, along with
a host of immigration and due-process cases the Court declines
even to acknowledge. Garza v. Hargan today takes its place in
the pantheon of abortion-exceptionalism cases.
Accordingly, I respectfully dissent.
KAVANAUGH, Circuit Judge, with whom Circuit Judges
HENDERSON and GRIFFITH join, dissenting:
The en banc majority has badly erred in this case.
The three-judge panel held that the U.S. Government,
when holding a pregnant unlawful immigrant minor in custody,
may seek to expeditiously transfer the minor to an immigration
sponsor before the minor makes the decision to obtain an
abortion. That ruling followed from the Supreme Court’s many
precedents holding that the Government has permissible
interests in favoring fetal life, protecting the best interests of a
minor, and refraining from facilitating abortion. The Supreme
Court has repeatedly held that the Government may further
those interests so long as it does not impose an undue burden
on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially”
adopts the panel dissent and is ultimately based on a
constitutional principle as novel as it is wrong: a new right for
unlawful immigrant minors in U.S. Government detention to
obtain immediate abortion on demand, thereby barring any
Government efforts to expeditiously transfer the minors to their
immigration sponsors before they make that momentous life
decision. The majority’s decision represents a radical
extension of the Supreme Court’s abortion jurisprudence. It is
in line with dissents over the years by Justices Brennan,
Marshall, and Blackmun, not with the many majority opinions
of the Supreme Court that have repeatedly upheld reasonable
regulations that do not impose an undue burden on the abortion
right recognized by the Supreme Court in Roe v. Wade.1
1
The majority’s decision rules against the Government
“substantially for the reasons set forth in” the panel dissent. Given
this ambiguity, the precedential value of this order for future cases
will be debated. But for present purposes, we have no choice but to
2
To review: Jane Doe is 17 years old. She is a foreign
citizen. Last month, she was detained shortly after she illegally
crossed the border into Texas. She is now in a U.S.
Government detention facility in Texas for unlawful immigrant
minors. She is 15-weeks pregnant and wants to have an
abortion. Her home country does not allow elective abortions.
All parties to this case recognize Roe v. Wade and Planned
Parenthood v. Casey as precedents we must follow. All parties
have assumed for purposes of this case, moreover, that Jane
Doe has a right under Supreme Court precedent to obtain an
abortion in the United States. One question before the en banc
Court at this point is whether the U.S. Government may
expeditiously transfer Jane Doe to an immigration sponsor
before she makes the decision to have an abortion. Is that an
undue burden on the abortion right, or not?
Contrary to a statement in the petition for rehearing en
banc, the three-judge panel’s order did not avoid that question.
The panel confronted and resolved that question.
First, the Government has assumed, presumably based on
its reading of Supreme Court precedent, that an unlawful
immigrant minor such as Jane Doe who is in Government
custody has a right to an abortion. The Government has also
expressly assumed, again presumably based on its reading of
Supreme Court precedent, that the Government lacks authority
to block Jane Doe from obtaining an abortion. For purposes of
assume that the majority agrees with and adopts the main reasoning
for the panel dissent. Otherwise, the majority would have no
explanation for the extraordinary step it is taking today. For
accuracy, I therefore use the word “majority” when describing the
main points of the panel dissent. (If any members of the majority
disagreed with any of the main points of the panel dissent, they were
of course free to say as much.)
3
this case, all parties have assumed, in other words, that
unlawful immigrant minors such as Jane Doe have a right under
Supreme Court precedent to obtain an abortion in the United
States.
Second, under Supreme Court precedent in analogous
contexts, it is not an undue burden for the U.S. Government to
transfer an unlawful immigrant minor to an immigration
sponsor before she has an abortion, so long as the transfer is
expeditious.
For minors such as Jane Doe who are in U.S. Government
custody, the Government has stated that it will not provide, pay
for, or otherwise facilitate the abortion but will transfer custody
of the minor to a sponsor pursuant to the regular immigration
sponsor program. Under the regular immigration sponsor
program, an unlawful immigrant minor leaves Government
custody and ordinarily goes to live with or near a sponsor. The
sponsor often is a family member, relative, friend, or
acquaintance. Once Jane Doe is transferred to a sponsor in this
case, the Government accepts that Jane Doe, in consultation
with her sponsor if she so chooses, will be able to decide to
carry to term or to have an abortion.2
The panel order had to make a decision about how
“expeditious” the transfer had to be. Given the emergency
posture in which this case has arisen, the panel order prudently
did not purport to define “expeditious” for all future cases. But
the panel order set a date of October 31 – which is 7 days from
now – by which the transfer had to occur. For future cases, the
term “expeditious” presumably would entail some combination
of (i) expeditious from the time the Government learns of the
2
The minor of course also has to satisfy whatever state-law
requirements are imposed on the decision to obtain an abortion.
4
pregnant minor’s desire to have an abortion and (ii) expeditious
in the sense that the transfer to the sponsor does not occur too
late in the pregnancy for a safe abortion to occur.3 In this case,
although the process by which the case has arrived here has
been marked by understandable confusion over the law and by
litigation filed by plaintiff in multiple forums, the panel order
concluded that a transfer by October 31 – which is 7 days from
now – was permissibly expeditious. This would entail transfer
in week 16 or 17 of Jane Doe’s pregnancy, and the Government
agrees that she could have the abortion immediately after
transfer, if she wishes.
Third, what happens, however, if a sponsor is not found by
October 31 in this case? What happens generally if transfer to
a sponsor does not occur expeditiously? To begin with, a
declaration we just received from the Government states:
“while difficult, it is possible to complete a sponsorship process
for J.D. by 5 P.M. Eastern on October 31, 2017.” The
declaration also lists several ongoing efforts regarding the
sponsorship process. The declaration adds that all components
of the U.S. Government “are willing to assist in helping
expedite the process.”
But if transfer does not work, given existing Supreme
Court precedent and the position the Government has so far
advanced in this litigation, it could turn out that the
Government will be required by existing Supreme Court
precedent to allow the abortion, even though the minor at that
point would still be residing in a U.S. Government detention
facility. If so, the Government would be in a similar position
as it is in with adult women prisoners in federal prison and with
3
To be clear, under Supreme Court precedent, the Government
cannot use the transfer process as some kind of ruse to unreasonably
delay the abortion past the point where a safe abortion could occur.
5
adult women unlawful immigrants in U.S. Government
custody. The U.S. Government allows women in those
circumstances to obtain an abortion. In any event, we can
immediately consider any additional arguments from the
Government if and when transfer to a sponsor is unsuccessful.
In sum, under the Government’s arguments in this case and
the Supreme Court’s precedents, the unlawful immigrant minor
is assumed to have a right under precedent to an abortion; the
Government may seek to expeditiously transfer the minor to a
sponsor before the abortion occurs; and if no sponsor is
expeditiously located, then it could turn out that the
Government will be required by existing Supreme Court
precedent to allow the abortion, depending on what arguments
the Government can make at that point. These rules resulting
from the panel order are consistent with and dictated by
Supreme Court precedent.
The three-judge panel reached a careful decision that
prudently accommodated the competing interests of the parties.
By contrast, under the panel dissent, which is
“substantially” adopted by the majority today, the Government
has to immediately allow the abortion upon the request of an
unlawful immigrant minor in its custody, and cannot take time
to first seek to expeditiously transfer the minor to an immigrant
sponsor before the abortion occurs.4
4
The majority’s order denies the Government’s emergency
motion for stay pending appeal and thus does not disturb the District
Judge’s injunction (with adjusted dates), which required the
Government to facilitate an immediate abortion for Jane Doe.
Therefore, unless the Government can somehow convince the
District Judge to suddenly reconsider her decision, which is
extremely unlikely given the District Judge’s prior ruling on this
matter, the majority’s order today necessarily means that the
6
The majority seems to think that the United States has no
good reason to want to transfer an unlawful immigrant minor
to an immigration sponsor before the minor has an abortion.
But consider the circumstances here. The minor is alone and
without family or friends. She is in a U.S. Government
detention facility in a country that, for her, is foreign. She is
17 years old. She is pregnant and has to make a major life
decision. Is it really absurd for the United States to think that
the minor should be transferred to her immigration sponsor –
ordinarily a family member, relative, or friend – before she
makes that decision? And keep in mind that the Government
is not forcing the minor to talk to the sponsor about the
decision, or to obtain consent. It is merely seeking to place the
minor in a better place when deciding whether to have an
abortion. I suppose people can debate as a matter of policy
whether this is always a good idea. But unconstitutional? That
is far-fetched. After all, the Supreme Court has repeatedly said
that the Government has permissible interests in favoring fetal
life, protecting the best interests of the minor, and not
facilitating abortion, so long as the Government does not
impose an undue burden on the abortion decision.
It is important to stress, moreover, that this case involves
a minor. We are not dealing with adults, although the
majority’s rhetoric speaks as if Jane Doe were an adult. The
law does not always treat minors in the same way as adults, as
the Supreme Court has repeatedly emphasized in the abortion
context.
The majority points out that, in States such as Texas, the
minor will have received a judicial bypass. That is true, but is
irrelevant to the current situation. The judicial bypass confirms
Government must allow an immediate abortion while Jane Doe
remains in Government custody.
7
that the minor is capable of making a decision. For most
teenagers under 18, of course, they are living in the State in
question and have a support network of friends and family to
rely on, if they choose, to support them through the decision
and its aftermath, even if the minor does not want to inform her
parents or her parents do not consent. For a foreign minor in
custody, there is no such support network. It surely seems
reasonable for the United States to think that transfer to a
sponsor would be better than forcing the minor to make the
decision in an isolated detention camp with no support network
available. Again, that may be debatable as a matter of policy.
But unconstitutional? I do not think so.
The majority apparently thinks that the Government must
allow unlawful immigrant minors to have an immediate
abortion on demand. Under this vision of the Constitution, the
Government may not seek to first expeditiously transfer the
minor to the custody of an immigration sponsor before she has
an abortion.5 The majority’s approach is radically inconsistent
with 40 years of Supreme Court precedent. The Supreme Court
has repeatedly upheld a wide variety of abortion regulations
that entail some delay in the abortion but that serve permissible
Government purposes. These include parental consent laws,
parental notice laws, informed consent laws, and waiting
periods, among other regulations. Those laws, of course, may
have the effect of delaying an abortion. Indeed, parental
consent laws in practice can occasion real-world delays of
several weeks for the minor to decide whether to seek her
5
The precedential value of the majority’s decision for future
cases is unclear and no doubt will be the subject of debate. But one
limit appears clear and warrants mention: The majority’s decision
requires the Government to allow the abortion even while the minor
is residing in Government custody, but it does not require the
Government to pay for the abortion procedure itself. The
Government’s policy on that issue remains undisturbed.
8
parents’ consent and then either to obtain that consent or
instead to seek a judicial bypass. Still, the Supreme Court has
upheld those laws, over vociferous dissents. See, e.g., Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502, 532
(1990) (Blackmun, J., joined by Brennan and Marshall, JJ.,
dissenting) (“Ohio’s judicial-bypass procedure can consume
up to three weeks of a young woman’s pregnancy.”) (citation
omitted); Hodgson v. Minnesota, 497 U.S. 417, 465 (1990)
(Marshall, J., joined by Brennan and Blackmun, JJ., dissenting)
(“[T]he prospect of having to notify a parent causes many
young women to delay their abortions . . . .”); H.L. v. Matheson,
450 U.S. 398, 439 (1981) (Marshall, J., joined by Brennan and
Blackmun, JJ., dissenting) (“[T]he threat of parental notice
may cause some minor women to delay past the first trimester
of pregnancy . . . .”).
To be sure, this case presents a new situation not yet
directly confronted by the Supreme Court. But that happens all
the time. When it does, our job as lower court judges is to apply
the precedents and principles articulated in Supreme Court
decisions to the new situations. Here, as I see it and the panel
saw it, the situation of a pregnant unlawful immigrant minor in
a U.S. Government detention facility is a situation where the
Government may reasonably seek to expeditiously transfer the
minor to a sponsor before she has an abortion.
It is undoubtedly the case that many Americans –
including many Justices and judges – disagree with one or
another aspect of the Supreme Court’s abortion jurisprudence.
From one perspective, some disagree with cases that allow the
Government to refuse to fund abortions and that allow the
Government to impose regulations such as parental consent,
informed consent, and waiting periods. That was certainly the
position of Justices Brennan, Marshall, and Blackmun in many
cases. From the other perspective, some disagree with cases
9
holding that the U.S. Constitution provides a right to an
abortion.
As a lower court, our job is to follow the law as it is, not
as we might wish it to be. The three-judge panel here did that
to the best of its ability, holding true to the balance struck by
the Supreme Court. The en banc majority, by contrast, reflects
a philosophy that unlawful immigrant minors have a right to
immediate abortion on demand, not to be interfered with even
by Government efforts to help minors navigate what is
undeniably a difficult situation by expeditiously transferring
them to their sponsors. The majority’s decision is inconsistent
with the precedents and principles of the Supreme Court – for
example, the many cases upholding parental consent laws –
allowing the Government to impose reasonable regulations so
long as they do not unduly burden the right to abortion that the
Court has recognized.
This is a novel and highly fraught case. The case came to
us in an emergency posture. The panel reached a careful
decision in a day’s time that, in my view, was correct as a legal
matter and sound as a prudential matter. I regret the en banc
Court’s decision and many aspects of how the en banc Court
has handled this case.6
6
The Court never should have reheard this case en banc in the
first place. As the Supreme Court has instructed, “En banc courts are
the exception, not the rule. They are convened only when
extraordinary circumstances exist that call for authoritative
consideration and decision by those charged with the administration
and development of the law of the circuit.” United States v.
American-Foreign Steamship Corp., 363 U.S. 685, 689 (1960).
Federal Rule 35 provides that rehearing en banc is reserved for cases
that involve “a question of exceptional importance.” This Court’s
judges have adhered to that principle, even while entertaining doubts
about a panel’s application of the law to individual litigants. Here,
10
I respectfully dissent.
on the law, the three-judge panel’s order was unpublished; therefore,
it constituted no legal precedent for future cases. As to the facts of
this one case, if the panel’s order had blocked Jane Doe from
obtaining an abortion, the en banc consideration might be different.
If the panel’s order had forced Jane Doe to the cusp of Texas’s 20-
week abortion cutoff, the en banc consideration might be different.
If the panel’s order had significantly delayed Jane Doe’s decision,
the en banc consideration might be different.
But the panel’s order did none of those things. The panel was
faced with an emergency motion involving an under-developed
factual record that is still unclear and hotly contested. Indeed, the
parties have submitted new evidence by the hour over the past two
days – none of which was presented to the panel. The panel’s
unpublished order recognized Jane Doe’s interests without
prematurely requiring the Government to act against its interests.
The panel decision was prudent and reasonable, given all of the
circumstances. Indeed, as noted above, the Government represents
that, while difficult, it is possible for Jane Doe to obtain a sponsor by
“5:00 P.M. Eastern on October 31, 2017.” This case, as handled by
the three-judge panel, therefore was on a path to a prompt resolution
that would respect the interests of all parties – until the en banc Court
unwisely intervened. This case did not meet the standard for
rehearing en banc.