states i'd like to report reserve five minutes for rebuttal the district court in this case has required a government agency and government officials that are charged by congress with providing temporary care of unaccompanied minors to act inconsistent with their profound respect for life and facilitate what they regard as the terminations of life through abortion without any option to consider the child's interests or maturity or to explore alternatives like a prompt release to a parent or sponsor this is an unprecedented expansion of abortion jurisprudence before addressing that as well as moodiness and problems with the class certification i'd like to first focus on three ways even if this court finds there was jurisdiction and simply applies the law governing state prohibit ins on abortion guided by this court's on bond decision that's now been vacated the district court order is still vastly over broad and cannot be a and first the order entirely eliminates or r s congressionally mandated role in making care determinations for minors who are temporarily within their custody and a precludes them from a value in a child's maturity or best interests in making no determinations as congress and as congress demanded and six u s c section two seventy nine that can't be correct and it's not required by the due process clause instead the supreme court has recognized that that it is well established that there is either a parental or if the parent is not available a governmental role in care decisions relating to children even when the issue is abortion and the court in the lobby made clear that those evaluations must be made on a case by case basis or are does not violate the due process clause when it plays a similar role here as congress told it to and any evaluation of assessment must be made on a case by case basis addressing the maturity and the best interest of each child and making class wide treatment inappropriate in this case but i wasn't under the impression that you were challenging the to the district court's order applies to every minor it does not allow or are to make any sort of assessment of the circumstances of the minor and simply requires that or are allowed the child to leave its legal custody to obtain the abortion so the district court's order precludes or are from making an assessment or a decision with respect to a minor in its care on the sort of factors that the supreme court has said are important or substantial interests of the state when dealing with minors seeking medical care including abortion who was in the district or just reacting to what it understood to be the way in which our are was carrying out his authority which is to say or are was saying that if there determination that is the only policy that plaintiffs have identified now they've said look we have several examples where the or our director said no and you know they have one from december where the or our director said no in very difficult circumstances so they're saying did you proffer any examples where they you know our director said yes no we have not but what i'm trying to say is you know i don't don't i now that it's worth fighting over whether what the or our directors policy is even if they are directors policy is i'm never going to say i'm never going to approve an abortion the district court's order is still vastly overbroad the district court's order says you just just because you can never say even if it's wrong to say to always say no that doesn't mean the or our has to always say yes which is what the district court's order a sensually requires here the district court's order does not allow any consideration of the factors that are critical to the care of children in government custody or you know in the abortion context usually comes up with with parental involvement and that is one way that the district court's order even apply and i don't really understand the argument that you're making now counsel because are you saying that congress gave or are the authority to veto a child's choice in its parents patriotic and that is consistent with the constitution  yes i am saying that oh are are actually congress made o r are in charge of making determinations regarding medical care for kids in its custody and its temporary custody want to stress this is temporary custody of the mission of or are is to find a sponsor  parent's quickly as possible but during that temporary period congress and section two seventy nine b two b i believe said o r r should look to the best interests of the child in may of the child to make care determinations and the supreme court in the context of abortion and in other medical areas has said the child needs some help in it and that either the parent can have a role or if the parents not part of the decision making process the government through its or a court bypass procedure or some other determination that the trial should not terminate her pretty eyes i think i mean in our view that is the the procedure i mean that is the exercise of the authority that congress has a has said they should exercise and that the supreme court in the abortion cases has said is appropriate for a governmental and that is it seriously would be one thing let's just assume that as a statutory matter oh our hast authority authority to make determinations about abortions let's just assume that  assessment of whether a child is mature enough to a minor is mature enough to make this determination even giving the even assuming that a minor has already satisfied whether whatever state criteria there may be let us suppose that all or has authority to impose some extra requirement and omar had done that and they had a policy that said this is the way we engage in this inquiry this is a regulation that spells that out well then i could understand why the district court would would need to decide whether that policy was consistent with the constitution but there's just not such a thing so what the district court did was they reacted to the situation that confronted it which is the assertion of just veto policy is unlawful that's not what the district court said the district court said you can't have any policy you can't you can't interfere or take any part in this process so now the child who's in their care has no  that later but as we're talking about simply applying abortion prohibition jurisprudence and applying what the court was looking at in garza if this court thinks well there is actually some will for the governmental entity to make these determinations just like the supreme court has said is important in a minute i don't understand what the court is supposed to do because i don't think it's the role of a court to try to invent policies that might survive constitutional scrutiny but well it that's true but if the district court had invalidated the or our policy that i would not have this argument or not be available at the disc or did more than that it didn't invalidate the or policy it told or it could have no role in making this determination it said it could not interfere or take or do anything to prevent the abortion when the supreme court and and it's well established that a governmental entity does have an import so if we construe the disregard as having said what our can't do is obstruct abortion in the way that it's not carrying it out then problem solved right because then if you are wanted to adopt a policy along the lines that you're suggesting well then that would present an issue that a new challenge would bring before a court i think that would i think that would fully address this aspect of our organ yes if if the district had struck down the policy and then said go back to the drawing board or that that would allow or to think about how to implement that aspect of the is temporary custody and thereby of with the need for government officials to be a part of the termination of the pregnancy and exercise the profound interest in preserving life that the government has or are as a temporary custodian of these children and they often find sponsors quickly plaintiff citing their brief in talking about move notice the fact that a child is on average you know our custody for around forty one days i think that that forty one day period is gone up a little a an average but that means that a lot of kids are not in custody for very long often custody periods can be quite sure that there's a parent available there already is a charge by congress to find a sponsor quickly and to get the child to the sponsor it's often the parent if it now miss doe being the case that came up here last time presented a very difficult circumstance the parent was not available it was much harder to find a sponsor the sponsorship process went on for weeks that i think was very important to the on backcourt in concluding that there just wasn't enough there was too much time and already passed but the disproportion order does not allow or are any time to try and find a sponsor and put the child in as judge millette said in a better situation i think judge millette judge can so on this on this question you don't take issue with the notion that sponsorship at the end of the day is up to the government to approve or disapprove absolutely i mean they have to approve sponsors based on you know a good evaluation it's it's quick and if it's a parent usually moves quite quickly but yes the government does alternately sign off on the sponsor that's a really important safety measure for  well again i'm presenting some arguments as to why the district court's order is overbroad even applying some principles that we don't necessarily agree with at the end of the day so but under that did cite the cases from the supreme court about parental involvement where the supreme court has upheld pretzel involvement regimes that take up to three weeks but i thought your your argument about sponsorship has always been different as i understood it it's not that  sponsorship allows us some finite period of time so what you ought to do is from the moment that we are informed of the fact that an unaccompanied minor in custody wishes to exercise her constitutional right to terminate her pregnancy we ought to be given a period of time to be able to find a sponsor first of all that's already been happening sponsors already and there's always been a search for a sponsor even before you know through an unaccompanied minor wants to terminate her pregnancy and your argument has not been what we ought to be given is x number of days to continue that search because i thought your argument is that the availability of sponsorship as a possibility just means as a blanket matter that we are not violating the constitution by disallowing someone in our custody who wants to exercise their right to terminate her pregnancy to do so it doesn't even matter in a particular case of a sponsor isn't or can't be found the idea that sponsorship exists a possibility means that there is no constitutional violation that's been your argument as i have actually i think i think our argument on that point has more to do with voluntary departure and we agree that it is important that  be in distinguishing cases from other circuits involving say criminal custody in prisons where there is no ability of the woman in custody to leave custody voluntarily the courts have said there's got to be some sort of facilitation in the third of this and this i believe the sixth circuit voluntary departure is always available to a child  customized but it's out of the gun sponsorship it's up to the ship might not always be available so it's that is not an automatic way to get out of government custody argument on the sponsorship point applying and kind of the the garza case and prohibition cases that look to those guideposts on the due process clause requirements but the court has always said you can have a period of time to to work on the principle involved in issues the corps approved state regimes which are prohibitions on abortion they allow twenty one days up to twenty one days i don't know that that i think you know and or are sponsorship search involves more complicated issues than simply a state prohibition because i do so if you don't dispute the notion that  if you had a parental consent statute or a law that didn't have a bypass that would be unconstitutional in the context of a state prohibition on the ocean i agree that what is would be different for you if if her country of nationality so there is never an emerging imposed by the government the burden is created by the minor crossing illegally into the country and ending up at the doorstep saying i would like to come in and then the governments will you can come in it's without  pregnancy and they will not be able to get a con talking about the conduct of the agent who committed crimes for in the first place this has nothing to do with the crime this has to do with the request to come into the united states at the border where the supreme court has said again and again congress can put limitations on that and that is very important the undue burden analysis when the person is able to choose to go back to their country of nationality where they were literally weeks before there's no undue burden being imposed by the governor so that you can have what is known terri departure argument that the your and you're saying that because a person in our custody always according to your argument has the ability to leave and go back to the country from which they came here and it no matter what obstacles we put in the way of somebody exercising their right while they're here it's fine because they can always go back to very much like what the supreme court said into more where we're talking about the liberty interest and not only in custody at all and the court said you have to wait and i don't know they can very much like that because here you are you're talking about the exercise of a right against the united states right i mean it's the united states government who whose conduct is at stake when it's a right to terminate a pregnancy it's a right to terminate a pregnancy without a substantial obstacle being placed in its way by the united states government and it seems like what your argument is saying is that's ok if we don't allow an unaccompanied minor in our custody to exercise her right to terminate her pregnancy because you know what she can leave the country and if she leaves the country what happens well that the right has gone sides not you caring is not apparent to me how is an answer to say i think i don't understand the argument that says an unaccompanied minor has a right to terminate her pregnancy we acknowledge that is likely the government takes this case on this premise that the unaccompanied minors do have a constitutional right and the answer to the right is you can leave and go somewhere where that rights not in the existence of the government is not creating the burden the government simply has restrictions on what happens when you cross the border that includes an not you cannot just go free into the united states to exercise the constitutional rights that you would normally exercise when you're walking around free in the united states that there is a a a a limitation and in the person who is continuing to see country it's like they're at the door asking to come  what we're saying about the government good the government hasn't made the argument in this case and it didn't make it at the stage date it hasn't made it it's briefing before us now that there isn't the right that you're not make making the case as far as as far as i understand it that an unaccompanied minor doesn't have the due process rights are saying that there am i right about that with the undue burden test looks at a burden imposed by the united states so there is we're not saying there's no constitutional right there is a close link because to exercise the constitutional right you are asking the united states to do something which is open the door and that is something that the united states never has to do and it doesn't have to do in this cop in this context except as authorized by congress and that's very well established in the law here they don't challenge the statutory epic application of the statute they stay just being applied correctly here so the united states is not imposing a burden insane to enter the united states the united states has to take action it has to open the door and opening the door is the sort of facilitation just to be able to see this argument would apply to adults in ice custody too it would be in other words an adult and eyes can see in most other has nothing to do with the fact that the individuals in this case are minors or that their parental consent regimes that could justify some sort of regulatory apparatus of the state environment this are you that you're making now would mean that the government would not have to permit an adult nice custody to obtain an abortion i think that's right although i mean if you look at the t v p r a the first provision the t v p r a says there's a strong government interest when a minor comes to the border to return that minor to her country her his or her country nationality promptly with their parents i mean that and so there is some there is a little bit more there but i think it's the departure argument is for people who are at the border would apply the same way right so i don't and so that in other words i do want to  or are sometimes but not it not often in this case ice often has custody of people in the captured in the interior where there might be different things so i mean one for adults denies custody who are who are detained in the same manner as the hypothetical same or minor you're talking about the same argument you know any central argument applies you know the issues of assaults by grace of the government that's at the laogai adults in ice custody to exercise their right to terminate the pregnancy that that the because of the girl until the voluntary departure that's not a constitutional requirement that doesn't mean it would be nice policy is to allow that and there are different factors at stake there keep in mind because of the decision making role that needs to be that o r needs to take part in that ice does does not have that argument ice does not have the argument that because you have children there is a role for or are in addressing maturity and best interests at that and then ok then let's shift to an argument that is is unique to minors as i just not to permit an exercise of the right to terminate pregnancy at all as to both minors and adults push is a sin for purposes of argument that one doesn't get you all the way home just for purposes of argument i know you disagree sure but then we go to sponsorship were is an argument that applies to minors not as to minors in the normal state regime parental consent can't be imposed as a right requirement absent bypass parental consent yes right correct and the supreme court has never addressed prattle notice and that's another piece of argument th and how does consent differ from sponsorship because with sponsorship it seems like just as with consent the person plays a role in trying to bring about the result that the government is pointing to on one hand to attain  on the other hand to find a sponsor and we know that that isn't enough to impose a blanket hereto consent requirement there has to be a bypass but with sponsorship there's no bypass it's just your argument  it's like parental consent but without a bypass because it's something else to which minor plays a role but at the end of the day it's our call the government gets to decide whether a sponsor is approved or not and the sponsor by the way gets to decide whether the sponsors going to participate just like a parent has to and that's what you would look at if you were just applying a parental consent regime to the sponsor of the sponsorship is about providing a safe home for the child all right because one cannot watch or have the capacity to refuse to allow the child to sponsor anyway yeah that's right absolutely true and again i don't think you can just apply kind of the i mean the printer consent regime from the lobby as has sydney or four factors it just it's i think it's informative of the time that or our should have to get the child into the place where judge millette said is the best circumstance for this decision justice kennedy said the whole notion of kind of deciding i make that the from the beginning of understanding the implications of this decision arise in the family to get to have the child in that place surrounded by family and friends rather than in custody of a government contractor to make that difficult decision that doesn't mean the child necessarily will tell the sponsor that doesn't mean the sponsor will have any decision making role that just means or are because the supreme court has provided time to have those parental regimes work their way through the courts the government should also have time to discretion of the body it is imposing the restriction to begin with because that's what's happening here it's not give the government whether to approve a sponsor for if a judicial bypass court says the child is not mature or it's not in their best interests then that is a restriction that's not that is a that is a prohibition that's not and that's not the end of it was opposing the restriction why that's what i mean you're you're asking if it there's any records ever upheld a regime where a child can't in the end of the day get an abortion the answer is yes in harris b mcrae the court said the government doesn't have to fund an abortion even no indigent women you know the reality is they won't be able to get one the courts report said that so right when you talk to other government involvement in facilitation of but that's a debate those are situations in which the restriction is not being imposed by the government itself here that they're in fact i was the whole rationale of i want to decisions is that the research of the not that's not being imposed by the government itself here the restriction is being imposed by the government itself and that my judgment again that's not our ultimate uses the government is not ever imposing restrictions because there's always the option of voluntary departure which is even a bigger option and i judicial bypass yes there judicial involvement necessary except to you know sign off on the departure which is a matter of it doesn't take very long it happens of course when you get a judicial bias when you get a judicial by passed you get to exercise the right that the state prohibitions fall away if there's a judicial bypass and when you get voluntary departure the rights gone what i don't know why the the government isn't it has nothing to do with that  that the you're not in a position to exercise the right when you voluntarily that's understood or country why i mean you're making assumptions this is a class wide relief and they've they said well there's three countries that prohibit abortion but even putting that to the  country but i mean i guess i'm not totally following it's it's it's a liberty of the in individual so i don't understand it's a right against the united states i don't think that's the right way to look at it is that the individual lives he is not being restricted by the united states the united that logically that you start with this well your honor i have a i wanted to talk first about how the district court injunction is what is too broad is too broad and there's one other thing on the overbred that i really just like to mention is the gag order the district court which prohibits any discussion of the pregnancy or the abortion decision with parents medical professionals or doctors absent the minors consent of there's there's simply no support for that injunction in the dis order and there's no basis for it and that needs to be reversed it is critical and again we're getting back to the cases from the supreme court talking about abortion the the role of the parents is important and the district courts  restricting any communications about it are is inappropriate can i just some i want you to get to class or vacation issue also when you saw understand your argument about how we look at the government's role so if the if the u s government arrested someone who was in the country illegally but they are an immigrant and they charged him and they said we're charging you just felony you don't get a jury trial you don't have a right to a lawyer you don't have a right to you know confront any witnesses it's going to be a summary procedure but you can voluntarily leave the country and you won't be subject to these charges so you can your choices are go forward with this trial where you have no rights or leave the country is that constitutional for the government to do that no that would not be constitutional  i think those rights large with the criminal process itself so you couldn't just have a criminal process that didn't include the protections from the sixth amendment and the fourth amendment and so on how is that the  government not how in that example was a government not essentially depriving the person of all of their rights or giving them the choice and leave the country so that they're not subject to prosecution again the voluntary departure piece in this case is very closely linked to the for the facilitation cases of the supreme court which say the government does not have to commit any resources to facilitate abortion so i think that's where this comes from i don't think it's a general principle that goes beyond that i think it's because the united states the supreme court has recognized that the united states doesn't have to it can recognize its profound interest in the life in the mother and it does not have to commit any the resources to ending that because of that principle you can say if you come into our custody and are now in a difficult situation where you want our assistance to terminate a pregnancy you actually have to to choose to leave so i think it's very closely linked to that line of precedent and so i don't think you would it would work for for the example you you provided so even in the morning on next we're going to if you had a state that  justified a ban on abortion on the basis that you can go to a different state and actors eyes are right you would say that there is a different i think that raises a host of of different issues and would be it would clearly not be permissible and just another way you characterize the differences it is that there is a very huge difference between someone at the border of the united states requesting entry and someone who is residing in a state and being told to leave so that is that is not the same situation at all so i don't think that principle would apply at all even though you don't take issue with the notion that the person at the border in the way that that the unaccompanied minors in this case  detained that they have the right you're not making the argue that they don't have the right you're saying that they have the right in the same way that a person that lives in a state has the right so they do have the same right but it's not the same it's not quite the same if a state if the state said we're we are not going to fund abortions you can go to another state that would be fine so it's also tied into the facilitation point the supreme court's very clear that the state does not have to expend any resources can and that has to happen here you can't get around  is the same right as someone would have this country who is not a legal minor because there are conditions on the right it's not the same exact right i think there i think that's differentiates this from a context in which a state would say to somebody who's not in state custody we're banning abortions and the reason we're able to do that is because you can go to a different state so you're not this is a facilitation argument gives you a basis to distinguish th i'm not quite sure i follow me now that status at the border gives you a basis to differentiate that situation given that you're allowing that the mining company miners in this case have the right which is the same right that individuals within when applying the under burden test it's really important to look at the issue of facilitation where the supreme court has gone the opposite right so that you're looking at the board argument and that i understand that is the basis for distinguishing it is is that the state hypothetical is facilitation but i'm not and  sounds like you're not taking the position that the right as against the undue burden constitutional requirement is any different it's just that the government you say has additional leeway in this context because of the non fossil patient argument that you're i think that's right i think there's i mean there is there is a strong governmental interest here that has to be dealt with and i'm not sure the the gars a decision last time really dealt with that i think it's important that that be dealt with i think government officials who are a part of this process who have a profound interest in life that is that that is a they and the government agency itself that a legitimate interest in life can be pursued through government regulated government policies involving the government's own conduct and then does another way that the way that interest has been described in the decisions is a just decision it's i'm sorry the way that interest has been described in the decisions is that it's an individual with information correct that the state the governmental interest the governmental interest in promoting potential life is an interest that goes towards giving the individual who's rights at stake information with which to make the choice more than that it's definitely more than that harris and webster webster said the government doesn't have to allow any abortions in a public hospital but that's not what that's different or anything within those not even a new word in cases because those are cases in which the government isn't required to alleviate a an impediment to taking an abortion that's not even that of the government's own making that here the impediment is of the government's own making and we don't agree we don't agree that it's of the government's own making the government can say at the border we're not opening the door for someone to get an abortion and that is that is that is not an impediment that is a request for action by the government to to help get the abortion to be the or has to put up signs so that the the the children can get access to dichotomy the judge in the last wishes you focus on you're resisting it by saying this is not the same right who's right is conditioned by a number of other factors isn't that what you're saying that's what we're well or a temporary place like oh that's how they view their role and if someone comes and says well you know i want to i want it i need an abortion at the the the role of or are would be the end of the role of someone who's administering the sort of a temporary custodian like a neighbor would be you know first talk to the parents figure out what to do see if there are options to get the child into a better place to deal with that issue and here the district court has said none of that can happen and from our perspective even under the garza decision it's important that you know given or as temporary role as a plaintiff's a forty one days and it's a little longer now is the average time in custody and i guess i'm getting back to the sponsorship point given that temporary role just just like other entities that would have temporary custody of someone else's child they would they would want to explore options other than signing the papers to go get the helping a person get to the the abortion doctor taking part in that decision they would if they had to do that they would feel responsible they would be facilitating the abortion and just to make sure that we understand the premise your thoughts from argument the the sponsorship argument means that the government can withhold the ability of a person a minor within its custody to obtain an abortion even if in a particular case a sponsor is not found again because we have the voluntary departure backstop yes but if you reject a voluntary departure backstop i think you would look to the guideposts of the supreme court's cases that provide a period of time which discord did not here to allow decision making to involve parents what the government hasn't read the government has never argued for a period of time as far as i know well i mean in our brief again argument is that there never needs to be facilitation but if you're going down a different path that's why i'm here to sort of talk about the issues we have cited in our brief  cases that authorize regimes of up to twenty one days in the context of a state prohibition we think it would work differently here but we think this the court has acknowledged that time is definitely available for this kind of so you and you used to construct a time period it's not it's not we're not asking being asked to give up but an up or down vote on a sponsorship policy that the government has come forward with that says for example even though we've been looking for a sponsor we need an additional period of x number of days to find a sponsor when we come to learn better need of it all wants to exercise her right to terminate her pregnancy you're not saying that because there is no period of days that i'm aware of that you've put forward i mean the district court order prevents any involvement of or are so i'm not sure how such a policy could get you know addressed but i mean i think guidance from the court on the limits of a dream overhaul you never proposed to the district court either that that there was a particular number of days that was necessary because they got all the we told the disk or repeatedly that would happen quickly it could happen quickly and now what have you quickly added not that it always would and so because it might because it could be never and so it's one thing to say that sponsorship can happen quickly no i think nobody disputes that it can happen quickly the point is he was to me is that once a ship doesn't ever have to happen and unless the government comes forward with a program under which it says here's what we want an opera down on we need an extra we'd like to have an extra number of days like a state regime that would presumably put in place a number of days to attain parental consent or whatever type a regime we're talking about and the reason we want to do that is because it's and for that it's of these interests that would be one thing but here there's just no such program that's being put forward by the government because the government's argument has been the abstract availability of sponsorship means that we don't have to allow a release if but we did cite all the cases talking about the reasons the period of time allowed by the supreme court in parental involvement support but also review is abuse of discretion it is so how is it that you don't offer some sort of standard such as saying you know give us until at least twenty weeks of pregnancy to find a sponsor  that the district court's order is extreme but you didn't propose an in between below so why do you get to come here and say that an extreme order was an abus discretion we we're not in the business of kind of formulating these waters ourselves we're in the view in the business of reviewing orders imposed below where we're asking the court to explain what the law requires here an injunction that exceeds the legal requirements is an abuse of discretion and the legal requirements are that at the very least o r are should have some time to expeditiously find a sponsor that's what the law tells us that's what the parental involvement cases tell us that is not some sort of improper her request that the court do you know tell or what its policy would be an egg and we know it would be a different story if the district court had said to the extent your policy is  refuse all abortions that's invalid go back to the drawing board but the discord didn't do that discordant issued a the opposite policy the district court made the policy here and now that's where we're stuck in the policy is there can be no involvement of our our so we need some gu a far fetched hypothetical well i don't authorize appeals but if that order it issued it would have been a different issue i think our arguments would still be that such an order was invalid because of the voluntary departure backdrop and because of the difference in facilitating the abortion here from a prohibition on abortion and i would just to be clear so a reasonable period of time to find a sponsor the search for a sponsor is always ongoing and has not the search for a sponsor has nothing to do with unaccompanied minors decision to seek to terminate her pregnancy right it's not as if we're looking for a sponsor all along now we realize that the minor wants to assert her right to terminate her pregnancy now we're really going to look for a sponsor this is the uber search for a sponsor that kicks in there's nothing like that right it's the same search for a sponsor that's always happy in the the agency works hard to find a sponsor and i think worked especially hard in the cases below to get the child into a place where that decision could be made in better circumstances and it moved very quickly in the case of ms mo it was about a week so it was a very fast process in the case of ms rowe i think it was going to be a couple weeks until they determine she was over eighteen  what i'm saying is this idea that you that let's suppose that the government had actually put forward a sponsorship alternative to the did the district court that the district court could have reviewed other than just the blanket argument an argument that said you know what we need a reasonable time to find a sponsor you should grant us a reasonable time to find a sponsor what that would mean is just some extra time to to do the same thing that we've always been doing looking for a sponsor  appropriate there's nothing wrong with or using existing law which instructed to probably find a sponsor to avoid the need to participate in so that once that then what would be the point of having a reasonable time in other words it's just the same search for a sponsor that's always been happening and so would the backstop then be some period of time before viability so the argument would be we get to search for a sponsor until i don't have would be that up to the government to come up with a policy but something like whenever we feel it doesn't matter when we find out that somebody wants to assert her right to terminate her pregnancy she's going to have to wait to exercise that right until x number of days before viability again wit i mean we're starting to get into our class action arguments that the claims here just are not common for reasons like this every child in god and who have a gift before we get to the cause actually part of that and we do want to hear about that and we want to give you time to do that for sure i'm just trying to understand this notion that there could have been a district court order that said something like a reasonable time to find a sponsor because i don't understand that and the reason i don't understand it is what is a reasonable time is to find a sponsor given that it's the same search for a sponsor that's always been happening when the backstop according to the government's argument as i perceive it is viability so then the argument would be we get to look for a sponsor until x number of days before viability would that be the alternative policy i mean that is every individual case is different if there is a requirement that government officials facilitate the abortion it arises at different times for different individuals in different circumstances it might not arise at all if a sponsor can be found quickly it mi arise quickly if such a young woman is close to viability it it might not arise if there are age if she's if the young woman is very look young or their maturity or best interest issues which are things that all these things for the government's understanding would use when the government take the position that there's a difference between saying in that circumstance there's three days to find a sponsor as opposed to all the time necessary before one week before viability i mean it's it's i'm sorry it's taken me a while to get there the courts asked several times why didn't you propose a time period i mean our position is these are individual cases every case raises its own set of facts and there's one if if it's very early in the pregnancy and there's more time to find a sponsor the government should have that leeway given the strong interest in not being part would have already weighed to take it out until x number of days before viability even if the right is asserted very early in the process those factors would have to be looked at in individual cases and you know some of the so they'll raise tough issues but again we think their government has a strong legitimate and a profound interest in in in  life of the child in the in the womb and can we can pursue that interest through woods through its actions through its actions of its own conduct and that is what is in conflict here in this case and given that that those ca types of balancing has to be done in each individual case of someone has more time there might be more time to look for response or someone has less time there might be less time when those issue interests come into conflict but at the district court put it but the line here and even if you think well the o r or had the line in the wrong place in its in its director review policy there's needs to be some guidance and those guide that guidance is best to determine case by case and i going us back to the law to where it said there needs to be a case by case determination of of the child's maturity investment trust that just is not happening under this district courts and jump and there's no determination that you know id there was a particular state program that was being reviewed by the court well i mean i understand that and you know states have policies that are enact in different ways but here the policy was just to direct a review and that's the only policy and if this is like a standard a p a case the district would say that policy is ok that policy's invalid there's a constraints on the disc the due process clause imposes some constraints on director's authority and that's really normal stuff but here the district court did something very different it said i'm eliminating your policy there's no other policy you can act you are done and that is just not what the supreme court tells us to do and it's just not the proper approach when given all our hours temporary custody there they are temporary custodian their parents out there they are temporary custody and they're charged with getting the kids to a sponsor or a parent as quickly as possible they  every case raises its own set of facts here and the again the point at which the due process clause if it has if it were if it imposes a requirement to take part or t access it's different for each individual in the cases in this case kind of show that out there every all the for name plaintiffs in this case all had very different circumstances different stages of pregnancy differ maturity levels there was a case in the fifth circuit recently with a very young minor at issue who who initially wanted an abortion then changed her mind i mean every case has a different set of circumstances imo i understood your argument left you define it in terms of individuals with the same injury yes i think that's right you cannot have a whole bunch of class members who suffer no injury and that comes that's kind of the overbroad class line of cases and here you know eighty to ninety but most of them do not suffer this injury suffered no injury in fact some of what the plaintiffs are asking for in their complaint like silence in crisis pregnancy centers might actually injure them because they might want that support  assistance so that that's true if you define the right and the injury as abortion it's not true if you define the right as the right to make the choice free from government coers however wishes to so i don't think that this is a case of i mean the place i wanted to be a case about there but the the ruling of the court and the way this got resolved is not about what information the government can provide to i guess the pain it's just i'm not sure i mean to draw a distinction between the right and the injury because it seems like the way one conceives of the injury depends on the way one conceive of the right which is to say if the right at stake is the right to choose without having the government dictate the choice the injury is the inability to choose without having the government government dictate the choice and everybody in the class is injured in that respect because nobody in the class has the right the personal autonomy right to choose make me if you look at the cases involving class easier to follow i don't see any case where the injuries the option to the abortion i think that's absolutely right i mean that the injury is undue burden to get any abortion and the only people who are ever suffer that injury or those who seek an abortion and this is a case he says what a state can do is quote prohibit any woman from making the ultimate decision to terminate her pregnancy before viability clothes and the when state says there's only one choice here the woman is not making the ultimate preventing someone else from exercising their constitutional entitle me to terminate a pregnancy i think it's i think it's easier that for today than that for two reasons one the case laws on an overbroad class don't look to antagonise and that's adequa case law case laws on the over broad class look to you got to define a class by the people who need a remedy from the court and it's go to the the the children who request abortion you need that remedy and the second that i lost my train of thought i'm sorry but the second oh the second reason is is some of plaintiffs claims are actually against the interests of that much larger group of minors and that's basically the effort to silence crisis pregnancy centers in this process and those miners are actually hurt if those crisis pregnancy centers are silenced so our view is that the district court in order to actually in order to deal with the numerosity problem with the case because that includes women who want to carry to term the nature of this right is that the woman is not frozen in time it's not like you have to make a choice at time zero and then you can never change your mind right or it's very common for people to come in the exit or enter a class x standard for a class action so i'm just talking about the nature of this right itself that the right itself just because somebody says at one particular point in time that they want to carry to term they can then decide at a later point in time that they want to terminate a pregnancy yes and that's happened in a few instances in some of the individual cases so in some situation that is what in some sense the over breath of the class it seems to me in some tension your argument about the owner of the class seems to me in some tension with the understanding of this right which is that it's not a right that's fixed at time zero and can never be it's not a choice to fix a time zero and can never be the subject of a change of mind it's something that is a choice that's constantly being made even if the woman decides at time zero that she wants to carry the pregnancy to term she can decide later that she wants to terminate the pregnancy at least  without state obstacle these before i believe so that over the problem seems somewhat in tension with that idea that the decision is a dynamic one and i just don't think that's correct i mean it's very common for someone to enter or leave a answer because you're right that if if the proper definition of the class is the individuals who have made the decision to seek an abortion that's the government's position i understand that when you're right say a little more of a requesting an abortion i mean it ok so if if there's a request made ok that when you define it and then maybe they would come out of the class if they change their mind or remain in the class i think right is the sort of class that would be defined well a problem i tried not to hide that let's suppose you had a first amendment claim case and you the question was whether people could attack criticize the government let's say there are government employees and there was only effort to stop them from criticizing the government and i class was proposed to include everybody all government employees because they all have a right to criticize the government even though that w narrow the class to the one that suffers the injury from the policy and here the injury is not not allowed not facilitating that abortion access and now what about the bonus question i think i don't that's correct and in this case the judge sat on the certification for months that's correct could have been certified in and amount of days so i don't understand why there's a transitory problem on the understand this i think that's right and i think by sort of just acting without actual class members it leads to the kind of ruling we get from the district court the does not look at india end of it any individual circumstances does either weren't in other words it class members to avoid this kind of an issue and it didn't happen here we really think it is relevant and it's an important principle that the district courts when they don't have a live case before them should not be certifying a class and that is allows the sort of decision making in a vacuum there's no facts before the court of any injury when it made its ruling when it made its ruling it was it was an act was basically creating a policy that really didn't address the individual circumstance that with that kind of that era lead to any time you have this the transitory exception that applies right because that exception comes into play when the class representatives claims are moot and that's why it's difficult described as a narrow exception and therefore there are that are applied and none of them fit here the length of the claim can be ascertained at the outset well here we know the length of the claim because of the the policy that required district court to get involved to resolve the claim on the  opportunity to act on an on a claim before it x act on classification for the claim expires well the claims not going to expire until the court takes action then it has time to act on the class certification and here the claims did not except in one case the claims did not expire until the court entered t r rose your time you're talking about which what time are you talking about the time that it took to sort of find a class for the time that it took to grant temporary relief because the court had time to grant temporary relief multiple times have but that is it's a different situation where the court where the where the the court if you look at the time period of kind of how long it was until the court granted temporary relief that that's that's not the proper time period i guess is what we're saying you need to look at how long the claim takes to expire and and in both cases there was enough time for the district court to act on classification so then you're talking my classification not when the court enters temporary relief that just seems like a happenstance to me that in any case involving inherently transitory because this district court acted quickly to grant temporary relief i guess i'm trying to say that the test it's looked at is where the clause the claim expires of its own accord and that's what the courts have said and that doesn't happen here and the can't quite another thing  claim being the class short of occasion known if the claim for relief expires of its own accord so that the school certification can be acted on and here the claim did not expire of its own accord if it expired due to the  court intervention the other thing you would look at is whether the defendant is selectively moving claims and that is not an issue here either the government was not selectively moving claims to avoid classification so i think the the wa g to respect article three and the scope of judicial authority in cases of moodiness is to to require court the class be addressed when there's an individual claim there's life but i'm sorry i'm i must i'm just i feel like i'm still evaded review is because temporary relief was granted that's your position right there yes they did not i mean the the guiding principle is you don't want government to be able to do things over and over again evading review here the  very important the claims are substantial and they don't evade review and class certification should be addressed in the context when actual i mean you're saying they don't invade review because the district court granted emergency relief on a short term basis yeah that's right and i just  i come back to this i don't understand why that's not always a possibility in an inherently transitory situation but if you look at all the cases none of them say well if the court at the court acted on the merits and nonetheless the that exception is the time until class certification they're not talking about the time until emergency relief can be granted and it seems to me that has to be the right way to look at it because emergency relief can always be granted quickly that's the nature of emergency rel what they're talking about is the time it would take for class certification i think that's right why is there a difficulty in time for glasser going well again the class certification motion was pending while for claims were raised by the plaintiffs on the merits and the court was able to decide those on the merits and i if the guiding principle is is the claim going to evade review because i don't sam why the district judge waited how many after all the represented plaintiffs were out of custody were and rather you understand the cases to work that if it takes longer than days for a district court to certify the class than in the inherently transitory exception doesn't apply i don't think i've understood the case is to say that the district court has two weeks and then if it takes longer than two weeks to certify the class that inherently transitory exception then cannot apply you know i certainly haven't said there's a specific time that applies again it's  would be would could you also say it is my no means certain that any in a given individual names point if you would say would be in pretrial custody long for a district judge to certify the class but you would state would have a live claim as to exercising the right to terminate a pregnancy long enough for a district judge to certify the class that's the way we should look at it that's the right question but the and and we disagree i think but the answer in our view is if the court can act on the then how is it certain that any given individual who might get sponsorship quickly would have a life plan i think that's the sort of thing that the court should have looked at but it did give the court looked at the the  i feel like i've covered about everything and then the court doesn't have for the questions they are going to show up here for a while thank you thank you may please the court brigid i'm hearing for plaintiffs the pallies the legal questions in this case are straightforward and answered by clear supreme court precedent as a district court properly found the government to has operated a policy of banning abortion for all unaccompanied immigrant minors while in government custody while there has been much litigation over the years about different abortion restrictions it is rare to see such a stark prohibition on access to abortion this is a blanket ban on abortion for anyone while they're in government custody this is blatantly unconstitutional under roe versus wade and it's progeny a few things about what the government has said places do dispute that the government has any sort of statutory authority to veto a miner's abortion decision congress could never have given that power to the government the constitution does not allow that type of veto  that they have for the miners decision and we didn't we dispute that what the statute says is that the government must consider that the best interest of a minor in a particular decision but it does not say that the government can use that authority to veto a miner's abortion decision and we have said that in our bruce this idea though that the government is considering different variables such as the minors maturity or the sponsorship process is really belied by the facts in this case and the district court found that the decision making process by the art director scott boyd was based almost entirely on his ideological opposition to abortion so any notion that what the government is doing is making some sort of individual case by case determination is just not supported by the rector record and the gut and the district court's findings of fact the court made a finding of fact that this is a policy of not just obstruction of abortion but also attempted coercion which is something that we haven't yet spoken about before a miner is even blocked from accessing abortion the government makes her go through a number of hoops to try to push her into carrying her pregnancy to term by forcing her to go to a crisis pregnancy center against her will all of those crisis pregnancy centers on the government's list of pre approved counselors are religiously affiliated the government makes the minor in her home to call her parents in her home country and tell her sponsor about her portion decision and if she refuses the government either does so or instructs the shelter to do so scott like himself has gone to speak with minors who are considering portion to try to convince them to carry to term these coercion attempts if they fail with the government just does is prohibited is the shelter from allowing the minor to leave for the portion all together this is a your honor three points in response one that as the district court recognized this would mean that a minor has to give up her right to stay in this country to be penalize for requesting access to abortion a minor ability to stay in this country merely for requesting the want to be a right well certainly the right to abortion as a right and so the penalty that we're talking about is on the penalty on the right to abortion and this is from something that the courts have recognized for example in harris taking away medicaid benefits for someone to have the right to the medicaid benefit but you have a right to abortion and penalize in someone by taking away medicaid benefits by the sheer fact that someone has had an claims special immigration juvenile status etc but that's just one aspect the other aspect is the voluntary departure process takes a long time and that is something that the government claims  says it doesn't take a long time but there is no support for that as a matter of law a minor must be in remove proceedings before voluntary departure is granted it takes a long time for those removal proceedings to even but it is unclear exactly how that works to the law says though that there has to be some sort of order issued by a judge or by the attorney general is out of the control of the minor when the voluntary departure can happen and just like we saw with jane doe the government was considering voluntary departure for her when she was here in september but by the time we were here in the court of appeals in october there had been no further steps for voluntary departure is pretty far well they're certainly discretionary authority whether to allow it at all and the other option is that a minor has to go before an immigration judge and there has to be an order and as we know the immigration courts are backlogged but in any event assuming a magic wand could be waived and there could be a voluntary departure order issued immediately there's still the question of repeats ration of the minor to her home country and this is talked about in the immigrant's rights micus brief that takes time that takes the cooperation with the count the consulate in the minors home country the minor has to have certain documentation like a passport she has to have a flight home and the estimate is that it would take one to two months for the minor to even your position say yes your honor not just with respect to the irreparable harm but also with respect to the state interest here the government has no valid state interest in banning abortion row versus wade makes  clear there may be some sort of waiting period for example that the states can impose that is attendant to the government interest of informing the woman of her free choice but the imperative for his case he makes clear that the government can't just hinder abortion for the sake of hindering abortion and that's exactly what has happened here in this case so neither voluntary departure nor the sponsorship option are viable options to get the government out of their constitutional obligation to not ban abortion so we're going to give you plenty of time to talk with one of us were kind of doing this argument backwards this way that the government did their argument  suggests it may not be in your interest in the argument that way so i have some serious concerns about weakness and i also have some serious concerns about whether the classes properly certified as over as afterthoughts you may want to consider spending so considerable time addressing those concerns yes your honor i'm happy to turn to both of those and i'm happy to turn back to the preliminary injunction and why the policy is unconstitutional in any point in terms of the moon us argument the inherently transitory exception to business was built for this case this is a situation where  the time when live claims are alive are unknowable it's not just with respect to whether pregnancy is of short duration but also that custody and one of the things that wasn't discussed was the way that rose jane rose claim became moot is that she was released from custody by the government and it was that was unknowable it's unknowable how long the minor will stay in custody is unknowable how long she will be pregnant either because she  but what about when the government seizes upon language it was on page eighteen of memory and opinion and order that said proposed class likely includes a number of pregnant unaccompanied children who will remain in custody long enough for a quarter to one class certification so the government seizes on their concession by district court to say that clause of that sentence in the district court's opinion the second clause of that sentence makes it very clear that the plaintiffs have no way of knowing which of those miners may have the right to abortion that last longer such that the district court would have time regard to how long a district court can reasonably be thought to have the case before it before it decides classification well with respect to this case it's about how long a minor may be pregnant either because she will be allowed to have an abortion because of relief by the district court or she will be pushed so far into her pregnancy that she will then give birth and will no longer be pregnant so those are the two unknowability aspects of this particular case  your honor it may or may not but here was the the supreme court has just talked about unknowability they have not necessarily talked about fleeting claims other courts have other parts of appeals have talked about the short duration of time  perpetuity would still be fine and that seems a tough pill to swallow because there has to be some period of time within which one would expect a district or to resolve classification that may be although the supreme court and christine garrity only talked about unknowability we need both tests here if there is a subsequent test about any sort of fleeting claims given the short period of our duration and also the short period of time that a minor can be pregnant so other courts of appeals for example have applied the inherently transitory exception in the context of claims that were alive for only three to six months for example what do you think of the government's argument that as i as i understand it part of the solution at least is that here there's not really an issue because the district court has been granted emergency relief on a short term basis your honor that is well and good for them urgency relief for those individual plaintiffs but it does nothing to prevent the government from enforcing th policy before minors harmed each of those individual plaintiffs was delayed in accessing abortion by weeks because of the government's policy no minor should have to suffer that harm whether it's  and because of the ban but also so that the district court can have time to certify a class what would then that's exactly what the district recognized that no one should have to risk her her health and also give up her constitutional right merely to give the district court time to certify a class that is not what is anticipated in any of the inherently transitory exception cases either we would never say that someone should be forced to remain in government custody in prison for to yes and that in fact all the more reason to apply the inherent transitory exception because you have a constant class of people suffering the injury and that is exactly what is happening here we know of just anecdotally we don't have any formal reporting mechanisms at least twelve unaccompanied minors who have requested access to abortion abortion information or to show bypass or abortion itself sends the injunction was issued in on march thirtieth  is why i am offering that number to show that there are constantly people in custody right now who would be harmed if the injunction was lifted and all the more reason to apply the inherently transitory exception in this case even though it's true that the existence of a class of individuals who are going to constantly be in place also means that in some sense you long get if you pick if that's the right point you could kind of possibly along the timeframe to give the district c applied an exception to miss that wasn't the inherently transitory exception to move ness but said that when there is a relation back of certification to the complaint as there was an exception in that case the district court made an error in class vigorously prosecute this case i mean i take it in any generally transitory case the point the the representatives are no longer be so no longer suffering the injury because it's moot as to them t women accompanied minors of the ability to make their choice regarding whether to seek an abortion or to disclose pregnancy related information  i'm struggling to find in the record a policy that is causing injury to a pregnant minor who wishes to carry her child to term so your are a couple of things the right to abortion is the right to decide to have an abortion the policy does impact the ability of minors to be able to decide whether to have an abortion because one of the aspects of the policy is to withhold any neutral information about abortion it's not as if most minors i think have obtained the pregnancy test and have automatically made a determination about what they want to do with that pregnancy if there is any sort of interest that we should recognize is that it's any person should have the ability to access neutral information about a pregnancy options and is prohibited under this policy and the other thing that is known how is that need to be very specific to tell me what policy and how it does so with respect to the coercion aspect that i mentioned before that had not previously been discussed so if a minor says that she is uncertain about her pregnancy decision is interested in look at discussing abortion the government then springs into action and tries to coerce her to carry her pregnancy to term by forcing her to go to a crisis pregnancy center where she is not going to be given neutral options counseling me but that's a minor express interest or not necessarily a desire but i'm interested in receiving information so it doesn't even have to be a of the remedy here your honor and and to put it in the context of the population that is involved in this case and who is harmed by this policy this is the most marginalized group that we can imagine these are young people who don't speak english might not even aware that abortion is legal in this country may not understand what their options are and for them to have the affirmative obligation to have to request etc so it is not the affirmative obligation on the government to provide the information but not to prohibit them from accessing information and the other thing i will say about the class is that the injunction  from telling anyone that without the minors consent about her pregnancy or her portion decision and that also applies class wide so before you go to to the disclosure part of it just in terms of abortion access because there is a part of the injunction that seems to be sort of the core of it which is that the government is barred from obstructing access to abortion with respect to that why isn't the class over broad in that it covers individuals who have expressed no interest  exercising their right to terminate a pregnancy your honor because again if it has to be that a minor has to say a magic word in order to get relief under the policy she may never say that magic word and instead if she doesn't the government will force her will push her into one direction and so far in order for there to be real relief for this group of individuals it must be that the government cannot obstruct or interfere with access to any sort of interested in receiving neutral information the government will withhold that will prevent access to it you know just like we saw in the case of jane doe what the government blocked her from even going to the abortion clinic to even risk if the state mandated counseling and so it we see it not just with respect to abortion access but about information about abortion that people must have in order to make informed decisions about their pregnancies but you just said a moment ago that the government doesn't have an obligation to provide information right right your honor and so there are the example you gave in response my question was when the government blocked her access to go to an abortion clinic but that was because she requested to go to fortune clinton yes yes your honor that is correct that is true so i also get down to brass tacks or so this isn't poker you know i don't need to hide my hand i have some serious problems i didn't to find a policy that you were challenging in this lawsuit that inflicts an injury upon a minor who neither expresses an interest in or desire to terminate her pregnancy and so and if you to help me with that because otherwise are a couple of things first of all i don't think that the district court abused its discretion by looking at numerosity in terms of all pregnant unaccompanied immigrant minors this isn't so simple and clear in terms of  minors decision to have an abortion in terms of at any point that she main she made change her mind she may seek information and that class must pro tax of the ability of all pregnant minors to make their own decisions free from government obstruction and interference and that should be as an abstract matter i understand that but but we're not suing based on abstract matters were suing to challenge policies that violate the statute or the constitution so you know until you until i understand what policy interferes with that  you know that's that's that's my problem as a disc your honor without that broader class of all part and unaccompanied minors and without that covers all of them what the government could do is that as soon as there was a valid pregnancy test before the minor could even say anything about her pregnancy desires they could leap into action and they could coerce the minor just like they did in these other circumstances there needs to be protection at the outset from the moment that a minor gets a positive pregnancy that she be allowed to make the decisions for herself and we don't decide cases about what the government could do we decide cases based on there is a policy and identified policy in place that does and i'm asking you what that is well your honor the policy that we have to challenge does involve these elements of coercion both in terms of being forced to go to a crisis pregnancy center against the miners will have unnecessary ultrasounds against the miners will policy we believe in does it injure all pregnant unaccompanied immigrant minors to the extent that it influences their ability to decide on their own whether to carry their pregnancies to term and assuming it can give an answer to that because i think we all have the same core of questions about this it seems to me it would be beneficial to put to one side the argument that minors would be forced to go to a crisis pregnancy centers i understand it's part of your case but that's not an aspect of the case of which the district court ruled in your favor right oh no your honor i do believe it is it's part of the interfering with the right to make the decision so you know what you understand the district court's order to bar the government from exposing unaccompanied minors and it's costly to crisis pregnancy centers without their consent a minor can certainly decide that she wants to go to a crisis pregnancy centers that's where she wants to go but with respect to the pr in junction it is our understanding and our belief that that's what's happening in practice is that the government is no longer making as a matter of course pregnant unaccompanied immigrant minors go to a pre approved crisis pregnancy center on the list against their well does your human apply just on the if you go past that just for purposes of argument and you talk about access to abortion and the government's policy as under your argument is that the government doesn't allow an individual to give effect to her decision to terminate her pregnancy if you have an individual who from the outset has said i don't have any interest in doing that i want to carry my i want to carry the pregnancy term and then apart from the crisis pregnancy center to mention of and i understand that's part of your argument but apart from that with respect to that individual how is that individual injured by the  part of it at the outset and parental notification you're not making the argument then that an individual who has expressed that she wants to carry her pregnancy to term is still injured by the lack of an option to term she would not be injured but the problem is defining the class how then as a practical matter if she decides that she wants abortion information or is then from that moment that she has said  that restricted in terms of access to information that she may need to make a different decision how is she then going to then come into that class there are problems i think inherent with the with the relief though  how to possibly do this and i submit that i think would be incredibly difficult and what you want to would end up doing is doing harm to these to these miners because i think that you would lose some of these miners they would fall through the cracks in terms of whether they can have access to the information to make decisions about their pregnancies just so we're clear you said there was so parental notification of pregnancy what  parental notification of pregnancy finding was it that happened were those miners express an interest or desire to have an abortion because the whole government rationale of this is that basically if that desire is expressed then they need to get the parents involved so i thought that that's what that was my understanding of what the policy was and what the mistake and your honor you're not mistaken with respect to the individual circumstances that were before the court although i will point out to that and i am not sure if it's going to surprise decision that with respect to jane doe the first notification is about the minors pregnancy and so and that is slightly different than the that in the abortion itself and the reason why the government is notifying parents in the home country and sponsors about pregnancy is so that the parents then present evidence and did the district court make a finding that there was a parental notification of pregnancy regardless of whether the minor expressed an interest or desire to have an abortion your honor we did not have evidence that regard we have not had an real discovery in this case either so we don't know that there is such a policy with respect to mine or has not expressed any interest in abortion or portion information or even uncertainty about her pregnancy we don't have that in the record you're on but it seemed like the the discourse decision is a parental notification with somewhat underdeveloped because as far as i could tell there was one really wants taken about parental notification and that's in the appendix of two forty nine and there's for district court says as part of the restrictions are you district does that apply to all pregnant you see that it's custody or army means a parental notification requirement they cannot be bypassed and if you took power over the choice to terminate beyond that i'm not sure there was much about the parameters of the parental notification requirement as the district phrased it and in particular the government submitted a an affidavit i think it was submitted after the district decision but the government submitted an affidavit that sought to add some additional detail about the way in which it administers parental notification that couldn't have affected the district's decision i think because it came into the case afterwards but still it exhibits that the i think the reality of it it's unclear what the parameters of parental notification are against which the district court issues its decision your honor there are some aspects that are unclear given that we are  unaccompanied minor must obtain consent which will knesset necessitate options counselling with her parents plus sign to notarize declaration of consent so that's also i'm not in the government's appendix at two forty  crisis pregnancy centers which was the other example that you gave what evidence did you introduce what finding was made by the district court that minors were sent to crisis pregnancy centers for counseling all pregnant minors are more as opposed to those reflection on that was simply about the need for a broader injunction to prevent that from happening but i mean my problem is that we  impose injunctions to keep something that might happen from happening we impose injunctions to prevent specific government policies or practices that are unconstitutional or violate statues you see my my my problem i understand your honor but the policies that we have challenge here is extreme and extraordinary the defendants in this case basically stopped at nothing to prevent unaccompanied minors from accessing abortion but i could agree with you about all of that my only point is that it seems that those policies only affect minors who express an interest or desire to in terminating their pregnancy and if that's the case  why should that be the class you're in or for the reasons that i had stated before in terms of the need to define the class in a way that doesn't steer minors decision one way or the other that every decision it's the right to decide abortion is protected and that information that is needed to make that decision isn't strict did it shouldn't be that the onus is on the meier to go for more than one somewhat policy that is at issue in this case steering the decision of a pregnant minor who has never said anything one way or the other about what her intentions are with well your honor with respect to withholding information withholding access to information that would affect any minor even if she has said nothing about her pregnancy intention if the government is going to prohibit access to neutral information for all pregnant minors regardless of whether she says nothing at all then that would ensure that that minor for the ability to have that information to make a decision so there is a policy that prohibits access to neutral information it's exactly what the government has done and so what is your best case for that being unconstitutional to limit access to information your honor being able to decide without government interference whether to continue a pregnancy is the hallmark of planned parent persons casey and her versus wade this is the government saying that someone is prohibited from obtaining information to make this decision that they are constitutionally entitled to make and the government is prohibiting that information and therefore influencing that decision and what specific information  right yes your honor it's with respect to access to information neutral options counseling by a qualified provider that the government has prohibited access to in this case under the court considers the information that is imparted by pennsylvania in the context of the twenty four hour waiting period influence that's either influence or inform depending on how you look at it that that has been upheld as constitutional but what the government cannot do it is what they have tried to do here which is these various coercion attempts to try to force a minor to carry her pregnancy to term that is impermissible that is crossing a line into forcing a minor to give up her right to to an abortion and and that is impermissible forcing her to go to a crisis pregnancy center forcing her to have religiously affiliated counseling there  government the report didn't reach this question but we also have an establishment clause claim there with respect to the government's policy that forces someone to go to religious counseling for the before she's allowed to obtain an abortion so there are other other claims that the district court did not with respect to the coercion but all of it is about the government's obstruction and interference with all of those things again of my reading of the district court's opinion that the record be evidence that was introduce the e mails and the looking at the real life situation of these young people the moment they get a pregnancy test they may not know what decision to make and if the government is going to withhold information that will affect their decision about whether to carry their pregnancy to term or happen abortion so so the government withholding information violation of process or the government's blocking of access to information that would affect a miner's ability to make a decision the right that she has the right to decide whether to carry a pregnancy to term that would be a substantive due process violation that is we have that is the argument that we have made and so when the when the district three in you obstruction it is their right to decide it is not necessarily always the right it is the right to decide that's being influenced here so that that is the crux of the of the question and the  appreciate the sort type rebuttal i don't want to repeat anything but i'll just raise a few quick points on some of the other sides or even on this i think it's important to understand when when the plaintiffs are talking about the exception to the  actually speaking to the narrower class they're talking about the children who want an abortion and where things move quickly but they actually ask for certification of a class of all pregnant minors and as you know we talked about the issues with that we've tried to address with respect to the smaller class but good but i think this underscores the over breadth of the class that when they talk about move miss they're talking about the narrower group who are pregnant and seeking abortion and where things move much more quickly than where the with the all pregnant minors where the district the court should have waited for a live claim to address classification given that the claims autism is not transitory well with the with the broader class the district court itself said it was a transitory if we assume the class is over broad and should have looked at a narrower class of pretty minor seeking abortion services i don't want to go over the points again we discussed before we think the essential points are that there is there was time for the district court to act on the honor that there's time to act on the certification if could because the district court had time to act on the merits and the the basic inquiry is is this going to evade review right these claims are not going to evade reply these are important individual claims another factor courts have looked at the claim small you know one of the cases plaintiff side had sixty thousand small claims that are going to be cycling through here these are important individual claims and they will not evade review and i one point i want to make they cite the d l decision of this court that case that's the class was certified before the claims became moot and then there's a lot of fight over the scope of the class and that's just not on point i want to talk briefly about on that issue now my understanding is that the class certification motion wasn't even fully briefed until november twenty seventh i think that's right it was filed the suit also if that's the case didn't like all these individual cases of these fo the the last representative plaintiff was out of our custody entirely in january and i think that's a sort of so the district court then had made sickly you know weeks or so from the time demotion was fully briefed till the last class representatives claim became moot right i think we'd say that the last claim became moot in mid in late december when  ms rowe left or custody because she wasn't actually a minor and so the district court should have decided that motion within the mines you know not taken any time off for holidays or thanksgiving or  any of the other pressing matters at the district court has been because it didn't you know that was unreasonable we shouldn't find this to be inherently transitory that's the way we should look at this i'm not casting any blame on the district court in the timeframe i'm just saying for article three purposes when it's possible and you're not going to lose the chance to address the actual claims that's not going to be and that's the case here t court should act on the class or vacation when there's a law and i'm not i'm not saying that you're casting any blame but i mean we have to put some sort of a reasonable miss test on this right so so if the district court you know doesn't act which is when the motion within four weeks and that's you know too much time and we should find it's not transitory yes we think for a variety of reasons that are particular to this case including the significance of the claims the fact that they're not going to avoid review that and the fact that these are really fact based if you really like acting on classification in a vacuum that's why we have an overbroad class that's why all of these factors that we think are really critical are not really happy didn't really getting engaged on by the courts because when you look at the cases individually you have a live claim these are the sort of things the court is faced with when just fade with this sort of abstract dispute can omar are have anything to do with abortion decisions then we get thing we can order that is sort of looks more like a legislative act than like an end and an order addressing an actual dispute before the court  want to just mention the crisis president pregnancy center issue briefly previous asked for an order barring access to crisis pregnancy centers and the district court rejected that and we don't view that as on appeal  requiring somebody to go to a crisis pride and use the center over their lack of consent to do that we don't agree with that interpretation of the order and again it's important no they actually asked for an injunction to directly address that in the district didn't give it to them so we've got the reputation that was made was that under the district's injunction the government in fact is not doing that anymore is that not true you know i'd have to check on that because i don't know for sure because i didn't really think this was even addition in this appeal but we have a footnote in our brief that  our reply brief i think the address of the crisis pregnancy centers you and then i want to talk about their their discussion about the o r is preventing access to neutral information they did not provide evidence of that in the district or in the district were really didn't touch on that issue so i'm not sure that it's it's fair to be talking kind of talking about that here and it's and one thing that's very clear is every miner in or custody has access to pro bar or pro bono counsel like there's a hotline in many facilities but they are freely able to reach out to notice to parents even when the child children's best interest doesn't call for it and they cite an e mail in government appendix to forty the government's policy which was in the swallow declaration it's in the record was that if it would endangered the child's interests or wellbeing they outlined in that and other issues or was that the fact example of its be consistent with the facts and co were very poorly developed pose declaration does not assert that she was forced to notify parents or that there was a notification against  decision that's definitely possible i don't remember when they got filed i also want to know they cite this e mail a g x two forty about getting written consent from the parents that's actually reflects the mis doe's case in in a state with a  judicial bypass regime and just reflects the two thousand and eight policy regarding judicial but a judicial bypass regime so i don't think that e mail is evidence of a policy that there would be notice or consent a consent required of the divorce  you one one last question which is on the merits so would voluntary departure is it true that with voluntary departure or not a voluntary departure the comes up in the context of removal proceedings but a voluntary departure that as i understand it is an option that's available beforehand but that's at the government's discretion yes votto there's follows not the case that and an unaccompanied minor can just unilaterally decide i'm ready to go back to the country from which i came when we go back i mean  there is no reason for that discretion not to be exercised so i think they would have to show some sort of problem with that with that with that process and there's just no pride if you keep in mind d d h s not a party here but their mission is if someone's removal alien to remove them their mission doesn't go beyond that and except in some like criminal cases but i don't there and then and it's so there's no you do so that's that's the answer terms of authority that the government does have the authority not to grant it but your position is hard to imagine scenarios in which the government and i think it's that authority internists timing is it also true that takes some time i think there are there's three types of voluntary departure and two of them take very little time the first is before proceedings have been formally started in the immigration courts there it's just a decision the h s can just agree to not pursue the proceedings the alien or agrees to remove it can move very quickly i don't know how long the consular processing takes i my understanding is in all these process es when there's an emergent situation it moves very fast main so you know looking at kind of the run of the mill case to decide how long it takes is not very indicative and certainly if there were some involuntary departure were a key part of  of of this issue legally then it then it could move very fast the second type is if the immigration proceeding has been commenced but has not been a removal order there you can have a stipulated departure again that should move very quickly i don't know that