CLOSED,STAYED,TYPE-D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-02122-TSC

GARZA v. HARGAN et al Assigned to: Judge Tanya S. Chutkan Case in other court: USCA, 17-05236
USCA, 18-05093 USCA, 17-05276 USCA, 17-05277 Cause: 28:2201 Injunction
Plaintiff
ROCHELLE GARZA As guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated TERMINATED: 09/18/2018

Date Filed: 10/13/2017 Date Terminated: 09/30/2020 Jury Demand: None Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant
represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 601-4266 Fax: (202) 457-0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW Suite 600 Washington, DC 20005 (202) 548-6604 Fax: (202) 546-0738 Email: dmach@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Michelman AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA

Plaintiff JANE ROE
Plaintiff JANE POE
Plaintiff

915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457-0800 Fax: (202) 457-0805 Email: smichelman@acludc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Fax: 212-549-2652 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JANE MOE on behalf of themselves and others similarly situated
Plaintiff J.D.

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
ERIC HARGAN Acting Secretary, Health and Human Services TERMINATED: 09/18/2018

represented by Ernesto Horacio Molina , Jr. U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation, Appellate Section 450 5th St. NW 10002 Washington, DC 20001 (202) 616-9344 Email: ernesto.h.molina@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow U.S. DEPARTMENT OF JUSTICE Civil Division, Office of Immigration Litigation P.O. Box 868 Washington, DC 20044 (202) 598-2445 Email: joseph.a.darrow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabatino Fioravante Leo UNITED STATES DEPARTMENT OF JUSTICE

Office of Immigration Litigation, Appellate Section P.O. Box 878, Ben Franklin Station Suite LSB #5222 Washington, DC 20044 (202) 514-8599 Email: sabatino.f.leo@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh U.S. DEPARTMENT OF JUSTICE P.O. Box 878 Washington, DC 20044 (202) 305-9802 Email: daniel.shieh@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas U.S. DEPARTMENT OF JUSTICE U.S. Attorney's Office - District of Columbia 555 4th Street, NW Washington, DC 20530 (202) 353-8679 Fax: (202) 616-8470 Email: alexander.haas@usdoj.gov TERMINATED: 10/26/2017
Michael Christopher Heyse U.S. DEPARTMENT OF JUSTICE P.O. BOX 878 Ben Franklin Station Washington, DC 20044 (202) 305-7002 Fax: (202) 616-4923 Email: michael.heyse@usdoj.gov ATTORNEY TO BE NOTICED
Sarah B. Fabian U.S. DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044

Defendant
STEPHEN WAGNER Acting Assistant Secretary, Administration for Children and Families, in his official and individual capacity

(202) 532-4824 Fax: (202) 616-8962 Email: sarah.b.fabian@usdoj.gov TERMINATED: 11/17/2017
Scott Grant Stewart U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 307-6482 Fax: (202) 514-8071 Email: scott.g.stewart@usdoj.gov TERMINATED: 10/26/2017
represented by Ernesto Horacio Molina , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabatino Fioravante Leo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William S. Consovoy CONSOVOY MCCARTHY PLLC 1600 Wilson Blvd Suite 700 Arlington, VA 22209 703-423-9423 Email: will@consovoymccarthy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas

(See above for address) TERMINATED: 10/26/2017
Caroline Asley Cook CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Blvd., Suite 700 Arlington, VA 22201 703-243-9423. Fax: 703-243-9423 PRO HAC VICE ATTORNEY TO BE NOTICED
Christina Greer US DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20044 202-598-8770 Email: christina.p.greer@usdoj.gov ATTORNEY TO BE NOTICED
Michael Christopher Heyse (See above for address) ATTORNEY TO BE NOTICED
Michael H. Park CONSOVOY MCCARTHY PARK PLLC 3 Columbus Circle, 15th Floor New York, NY 10019 (212) 247-8006 PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Neilson Strawbridge CONSOVOY MCCARTHY PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 617-227-0548 Email: patrick@consovoymccarthy.com

Defendant
SCOTT LLOYD Director, Office of Refugee Resettlement, in his official and individual capacity

PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 10/26/2017
represented by Ernesto Horacio Molina , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anton Darrow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sabatino Fioravante Leo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William S. Consovoy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) TERMINATED: 10/26/2017
Caroline Asley Cook (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED

Defendant ALEX M. AZAR, II Secretary of Health and Human Services
Amicus STATE OF TEXAS
Amicus STATE OF ARKANSAS
Amicus

Michael Christopher Heyse (See above for address) ATTORNEY TO BE NOTICED
Michael H. Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Neilson Strawbridge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 10/26/2017
represented by Woei-Tyng Daniel Shieh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Greer (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Keller BAKER BOTTS LLP Solicitor General Division 700 K St. NW Washington, DC 20001 202-639-7837 Email: scott.keller@bakerbotts.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

STATE OF LOUISIANA
Amicus STATE OF MICHIGAN
Amicus STATE OF NEBRASKA
Amicus STATE OF OHIO
Amicus STATE OF OKLAHOMA
Amicus STATE OF SOUTH CAROLINA
Amicus STATE OF MISSOURI
Amicus STATE OF WEST VIRGINIA

represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address)

Amicus COMMONWEALTH OF KENTUCKY
Amicus MATTHEW G. BEVIN Governor

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

10/13/2017 1

COMPLAINT and Application for TRO and PI against All Defendants ( Filing fee $ 400 receipt number 0090-5157959) filed by ROCHELLE GARZA. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Hargan, # 3 Summons for Wagner, # 4 Summons for Lloyd, # 5 Summons for Attormey General, # 6 Summons for

U.S. Attorney, # 7 Application for temporary restraining order,

# 8 EMERGENCY Motion to shorten defendants' time to

respond, # 9 Proposed order shortening defendants' time to

respond, # 10 Request for TRO hearing, # 11 Motion for preliminary injunction, # 12 Memorandum in support of application for TRO and motion for preliminary injunction, # 13

Declaration of J.D.-Redacted, # 14 Declaration of Brigitte

Amiri, # 15 Exhibit A, # 16 Exhibit B, # 17 Exhibit

C, # 18 Exhibit D, # 19 Exhibit E, # 20 Exhibit F,

# 21 Exhibit G, # 22 Exhibit H, # 23 Exhibit I, # 24

Exhibit J, # 25 Proposed temporary restraining order,

# 26 Proposed preliminary injunction, # 27 Certificate required by Local Civil Rule 65.1(a))(Spitzer, Arthur) (Entered: 10/13/2017)

10/13/2017 10/13/2017 10/14/2017
10/14/2017 10/14/2017
10/14/2017
10/16/2017

2 NOTICE of Appearance by Sarah B. Fabian on behalf of ERIC HARGAN (Fabian, Sarah) (Entered: 10/13/2017)

Case Assigned to Judge Tanya S. Chutkan. (sth) (Entered: 10/16/2017)

MOTION for Temporary Restraining Order by ROCHELLE

3

GARZA (Attachments: # 1 Request for TRO hearing, # 2

Memorandum in Support, # 3 Declaration of J.D. - Redacted, # 4 Declaration of Brigitte Amiri, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15

Proposed temporary restraining order, # 16 Certificate Pursuant to Local Civil Rule 65)(Spitzer, Arthur) (Entered: 10/14/2017)
4 Emergency MOTION for an Order Shortening defendants' Time in Which to respond to Plaintiff's Appliction for a Temporary Restraining Order by ROCHELLE GARZA (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/14/2017)
MOTION for Preliminary Injunction by ROCHELLE GARZA 5
(Attachments: # 1 Memorandum in Support of Motion for

Preliminary Injunction, # 2 Declaration of J.D. - Redacted, # 3 Declaration of Brigitte Amiri, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14

Proposed Preliminary Injunction)(Spitzer, Arthur) (Entered: 10/14/2017)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney NameBrigitte Amiri, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, 18th Floor, New York, NY 10004. Phone No. - 212-549-2500. Fax No. - 212-549-2652 Filing fee $ 100, receipt number 0090-5159509. Fee Status: Fee Paid. by ROCHELLE GARZA (Attachments: # 1 Declaration of Brigitte

Amiri, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/14/2017)
7 SUMMONS (5) Issued Electronically as to ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER, U.S. Attorney and U.S.

10/16/2017 10/17/2017
10/17/2017 10/17/2017 10/17/2017
10/17/2017 10/17/2017 10/17/2017 10/18/2017

Attorney General (Attachments: # 1 Notice and Consent)(sth) (Entered: 10/16/2017)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/16/2017. Answer due for ALL FEDERAL DEFENDANTS by 12/15/2017. (Attachments: # 1 Declaration of service)(Spitzer, Arthur) (Entered: 10/16/2017)
MINUTE ORDER granting in part and denying in part 4 Motion for Expedited Briefing. Defendants' response is due at 7:00 PM on 10/17/2017. Any reply would be due prior to 12:00 PM on 10/18/2017. The court will hold a hearing at 12:00 PM on 10/18/2017 in Courtroom 2. Signed by Judge Tanya S. Chutkan on 10/17/2017. (lctsc3) (Entered: 10/17/2017)
Set/Reset Deadlines/Hearings: Response due 7:00 p.m. on 10/17/2017. Reply due by 12:00 on 10/18/2017. Preliminary Injunction Hearing set for 10/18/2017 at 12:00 PM in Courtroom 2 before Judge Tanya S. Chutkan. (tb) (Entered: 10/17/2017)
9 NOTICE of Appearance by Alexander Kenneth Haas on behalf of ERIC HARGAN (Haas, Alexander) (Entered: 10/17/2017)

10

RESPONSE re 3 MOTION for Temporary Restraining

Order , 5 MOTION for Preliminary Injunction filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments:

# 1 Declaration Declaration of Jonathan White)(Haas, Alexander) (Entered: 10/17/2017)

11 NOTICE of Appearance by Scott G. Stewart on behalf of All Defendants (Stewart, Scott) (Entered: 10/17/2017)

NOTICE of Appearance by Scott A. Keller on behalf of TEXAS,

12

STATE OF (Keller, Scott) (Entered: 10/17/2017)

MOTION for Leave to File Brief of Texas et al. as Amici Curiae by

13

TEXAS, STATE OF (Attachments: # 1 Text of Proposed Order

Proposed Order, # 2 Exhibit Brief of Amici Curiae in Support of Defendant)(Keller, Scott) (Entered: 10/17/2017)
ENTERED IN ERROR.....REPLY to opposition to motion re 3 14
MOTION for Temporary Restraining Order , 5 MOTION

10/18/2017
10/18/2017 10/18/2017 10/18/2017 10/18/2017 10/18/2017
10/18/2017

for Preliminary Injunction filed by ROCHELLE GARZA. (Spitzer, Arthur) Modified on 10/19/2017 (znmw). (Entered: 10/18/2017)

15

REPLY to opposition to motion re 3 MOTION for Temporary

Restraining Order , 5 MOTION for Preliminary Injunction [refiled] filed by ROCHELLE GARZA. (Spitzer, Arthur) (Entered: 10/18/2017)

MINUTE ORDER: Granting 6 Motion for Leave to Appear Pro Hac Vice. Brigitte Amiri is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiff. Signed by Judge Tanya S. Chutkan on 10/18/17. (DJS) (Entered: 10/18/2017)

Minute Entry: Preliminary Injunction Hearing held on 10/18/2017 for proceedings held before Judge Tanya S. Chutkan: Motion heard and ruling to be issued by 5:00 p.m. today. (Court Reporter Pat Kaneshiro-Miller) (tb) (Entered: 10/18/2017)

16 NOTICE of Appearance by Daniel Mach on behalf of ROCHELLE GARZA (Mach, Daniel) (Entered: 10/18/2017)

17 NOTICE of Appearance by Scott Michelman on behalf of All Plaintiffs (Michelman, Scott) (Entered: 10/18/2017)

MOTION to Certify Class by ROCHELLE GARZA (Attachments:

18

# 1 Declaration of A. Spitzer in support of class cert.,

# 2 Declaration of S. Michelman in support of class cert., # 3

Declaration of B. Amiri in support of class cert., # 4 Exhibit A

to Decl. of B. Amiri, # 5 Exhibit B to Decl. of B. Amiri, # 6

Exhibit D to Decl. of B. Amiri, # 7 Text of Proposed Order)(Michelman, Scott) (Entered: 10/18/2017)
NOTICE of Filing of Additional Exhibit by ROCHELLE GARZA 19
re 18 MOTION to Certify Class (Attachments: # 1

Exhibit Ex. C. to Decl. of B. Amiri in support of class cert.

(part 1 of 6), # 2 Exhibit Ex. C. to Decl. of B. Amiri in support

of class cert. (part 2 of 6), # 3 Exhibit Ex. C. to Decl. of B.

Amiri in support of class cert. (part 3 of 6), # 4 Exhibit Ex. C. to Decl. of B. Amiri in support of class cert. (part 4 of 6), # 5

10/18/2017 10/18/2017 10/18/2017 10/19/2017 10/19/2017 10/20/2017
10/22/2017

Exhibit Ex. C. to Decl. of B. Amiri in support of class cert.
(part 5 of 6), # 6 Exhibit Ex. C. to Decl. of B. Amiri in support of class cert. (part 6 of 6))(Michelman, Scott) (Entered: 10/18/2017)

20

ORDER granting 3 Motion for TRO. Signed by Judge Tanya

S. Chutkan on 10/18/2017. (lctsc3) (Entered: 10/18/2017)

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 20 21
Order on Motion for TRO by STEPHEN WAGNER, ERIC HARGAN, SCOTT LLOYD. Fee Status: No Fee Paid. Parties have been notified. (Haas, Alexander) (Entered: 10/18/2017)

USCA Case Number 17-5236 for 21 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. (zrdj) (Entered: 10/19/2017)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 14

Reply to opposition to Motion was entered in error (incorrect/blank document) and was refiled as Docket Entry 15

Reply to opposition to Motion. (znmw) (Entered: 10/19/2017)

Transmission of the Notice of Appeal, Order Appealed

22

(Memorandum Opinion), and Docket Sheet to US Court of

Appeals. The Court of Appeals docketing fee was not paid because

the appeal was filed by the government re 21 Notice of Appeal to DC Circuit Court. (znmw) (Entered: 10/19/2017)

26 RECALLED PURSUANT TO 31

MANDATE FILED

10/24/2017.....MANDATE of USCA as to 21 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. USCA Case Number 17-5236. (Attachments: # 1 order filed October 20, 2017)(zrdj) Modified on 10/25/2017 (zrdj). (Entered: 10/24/2017)
23 NOTICE of Filing Declaration of Robert Carey by ROCHELLE GARZA (Attachments: # 1 Declaration of Robert Carey)(Spitzer, Arthur) (Entered: 10/22/2017)

10/22/2017 10/23/2017 10/23/2017 10/23/2017 10/24/2017 10/24/2017
10/24/2017 10/24/2017

24 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ROCHELLE GARZA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Marie Christine Cortez)(Spitzer, Arthur) (Entered: 10/22/2017)
25 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration Sealed Declaration of Jonathan White)(Haas, Alexander) (Entered: 10/23/2017)
MINUTE ORDER: DENYING without prejudice Motion 24 to File Document Under Seal. Plaintiff may file a redacted version of the document or explain why redaction is impossible or impracticable. SO ORDERED - by Judge Tanya S. Chutkan on 10/23/17. (tb) (Entered: 10/23/2017)
MINUTE ORDER: DENYING without prejudice Motion 25 to File Document Under Seal. Defendants may file a redacted version of the document or explain why redaction is impossible or impracticable. SO ORDERED - by Judge Tanya S. Chutkan on 10/23/17. (tb) (Entered: 10/23/2017)

27

Emergency MOTION to Amend/Correct 20 Order on Motion

for TRO by ROCHELLE GARZA (Attachments: # 1 Proposed

Amended Temporary Restraining Order)(Spitzer, Arthur) (Entered:

10/24/2017)

ERRATA attaching documents that should have been attached by 28
ROCHELLE GARZA 27 Emergency MOTION to

Amend/Correct 20 Order on Motion for TRO filed by ROCHELLE GARZA. (Attachments: # 1 Court of Appeals En Banc Order, # 2 Court of Appeals Mandate)(Spitzer, Arthur) (Entered: 10/24/2017)

29

ORDER granting 27 Motion to Amend/Correct TRO. Signed

by Judge Tanya S. Chutkan on 10/24/17. (lctsc3) (Entered:

10/24/2017)

MINUTE ORDER: The court will shortly enter its Findings of Fact to accompany the Amended Temporary Restraining Order 29

10/24/2017 30
10/24/2017 31
10/24/2017
10/25/2017 32
10/25/2017 33
10/26/2017 34
10/26/2017 35
10/27/2017 36

entered on 10/24/17. Signed by Judge Tanya S. Chutkan on 10/24/17. (DJS) (Entered: 10/24/2017)
ORDER: Findings of Fact in Support of Amended Temporary
Restraining Order 29 . Signed by Judge Tanya S. Chutkan on 10/24/17. (lctsc3) (Entered: 10/24/2017)
MANDATE of USCA as to 21 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. USCA Case Number 17-5032. (Attachments: # 1
judgment filed October 24, 2017)(zrdj) Modified on 10/26/2017 (zrdj). Modified date of judgment on 10/26/2017 (znmw). (Entered: 10/25/2017)
MANDATE RECALLED pursuant to USCA 31 MANDATE re 26 USCA Mandate dated 10/20/2017. USCA electronically notified. (zrdj) (Entered: 10/25/2017)
NOTICE of Appearance by Brigitte Amiri on behalf of ROCHELLE GARZA (Amiri, Brigitte) (Main Document 32 replaced on 10/26/2017) (znmw). (Entered: 10/25/2017)
Unopposed MOTION for Leave for J.D. to Proceed under Pseudonym by ROCHELLE GARZA (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/25/2017)
NOTICE OF SUBSTITUTION OF COUNSEL by Joseph Anton Darrow on behalf of ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER Substituting for attorney Alexander K. Haas and Scott G. Stewart (Darrow, Joseph) (Entered: 10/26/2017)
MOTION for Extension of Time to File Response/Reply as to 5
MOTION for Preliminary Injunction , 18 MOTION to Certify Class by ERIC HARGAN, SCOTT LLOYD, STEPHEN
WAGNER (Attachments: # 1 Text of Proposed Order)(Darrow, Joseph) (Entered: 10/26/2017)
ERRATA Notice by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Darrow, Joseph) (Entered: 10/27/2017)

10/30/2017
10/30/2017 10/30/2017
10/31/2017 10/31/2017 11/01/2017 11/01/2017 11/01/2017

37

Memorandum in opposition to re 35 MOTION for Extension

of Time to File Response/Reply as to 5 MOTION for

Preliminary Injunction , 18 MOTION to Certify Class filed by ROCHELLE GARZA. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/30/2017)
Cross MOTION to Extend Paragraphs 3 and 4 of Amended 38
Temporary Restraining Order re 29 Order on Motion to Amend/Correct by ROCHELLE GARZA (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/30/2017)

39

ORDER granting in part and denying in part 35 Motion for

Extension of Time to File Response/Reply ; granting 38

Plaintiffs' Cross-Motion for Extension of the Amended Temporary Restraining Order. Defendants' Response to Plaintiffs' Motion for Class Certification is due on November 20, 2017. Plaintiffs' reply, if any, is due on November 27, 2017. The requirements of paragraphs 3 and 4 of the Amended Temporary Restraining Order entered on October 24, 2017 are hereby extended until further order of the court.. Signed by Judge Tanya S. Chutkan on 10/30/2017. (lctsc3) (Entered: 10/30/2017)

Set/Reset Deadlines: Response due by 11/20/2017. Reply due by 11/27/2017. (tb) (Entered: 10/31/2017)

REDACTED DOCUMENT- Declaration of Jonathan White in

40

support of Defendants' Response to Plaintiffs' Motion for a TRO

and Preliminary Injunction by ERIC HARGAN, SCOTT LLOYD,

STEPHEN WAGNER. (Darrow, Joseph) (Entered: 10/31/2017)

NOTICE of Filing Redacted Declaration of Marie Christine 41
Cortez by ROCHELLE GARZA (Attachments: # 1 Redacted Declaration of Marie Christine Cortez)(Spitzer, Arthur) (Entered: 11/01/2017)

MOTION for Leave to File Declaration of Marie Christine Cortez

42

Under Seal, RENEWED, by ROCHELLE GARZA (Attachments:

# 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/01/2017)

43 NOTICE of Appearance by Woei-Tyng Daniel Shieh on behalf of All Defendants (Shieh, Woei-Tyng) (Entered: 11/01/2017)

11/03/2017
11/06/2017 11/07/2017
11/09/2017 11/09/2017 11/09/2017
11/13/2017 11/17/2017 11/20/2017

44 MOTION for Leave to File Opposition to Motion for Preliminary Class-wide Relief, MOTION to Stay Proceedings Concerning Preliminary Class-wide Relief Pending Supreme Court Review by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Exhibit A - Petition for Writ of Certiorari, # 2 Text of Proposed Order)(Darrow, Joseph) (Entered: 11/03/2017)

45

MOTION for Reconsideration re 39 Order on Motion for

Extension of Time to File Response/Reply,,, Order on Motion for

Miscellaneous Relief,, by ERIC HARGAN, SCOTT LLOYD,

STEPHEN WAGNER (Shieh, Woei-Tyng) (Entered: 11/06/2017)

46 Memorandum in opposition to re 44 MOTION for Leave to File Opposition to Motion for Preliminary Class-wide Relief MOTION to Stay Proceedings Concerning Preliminary Class-wide Relief Pending Supreme Court Review filed by ROCHELLE GARZA. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/07/2017)

47 ENTERED IN ERROR.....NOTICE of Appearance by Sabatino Fioravante Leo on behalf of ERIC HARGAN (Leo, Sabatino) Modified on 11/13/2017 (znmw). (Entered: 11/09/2017)

48 NOTICE of Appearance by Sabatino Fioravante Leo on behalf of All Defendants (Leo, Sabatino) (Entered: 11/09/2017)

REPLY to opposition to motion re 44 MOTION for Leave to

49

File Opposition to Motion for Preliminary Class-wide

Relief MOTION to Stay Proceedings Concerning Preliminary

Class-wide Relief Pending Supreme Court Review filed by ERIC

HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Leo,

Sabatino) (Entered: 11/09/2017)

NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 47 Notice of Appearance was entered in error as a duplicate of Docket Entry 48 Notice of Appearance. (znmw) (Entered: 11/13/2017)

50 NOTICE OF WITHDRAWAL OF APPEARANCE as to ERIC HARGAN. Attorney Sarah B. Fabian terminated. (Fabian, Sarah) (Entered: 11/17/2017)

51

ORDER granting 42 Renewed Motion for Leave to File

Document Under Seal. Signed by Judge Tanya S. Chutkan on

11/20/2017. (lctsc3) Modified on 11/21/2017 (DJS). (Entered:

11/20/2017)

11/20/2017
11/20/2017 11/20/2017 11/27/2017
11/27/2017
11/28/2017 12/08/2017

52

Memorandum in opposition to re 45 MOTION for

Reconsideration re 39 Order on Motion for Extension of Time to File Response/Reply,,, Order on Motion for Miscellaneous Relief,, filed by ROCHELLE GARZA. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/20/2017)

53

RESPONSE re 18 MOTION to Certify Class filed by ERIC

HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments:

# 1 Declaration Declaration of J. White)(Leo, Sabatino) (Entered:

11/20/2017)

54 SEALED DOCUMENT (Declaration of Marie Christine Cortez) filed by ROCHELLE GARZA. (This document is SEALED and only available to authorized persons.)(znmw) (Entered: 11/21/2017)

55 REPLY to opposition to motion re 45

MOTION for

Reconsideration re 39 Order on Motion for Extension of Time to File Response/Reply,,, Order on Motion for Miscellaneous Relief,, filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Shieh, Woei-Tyng) (Entered: 11/27/2017)

56

REPLY to opposition to motion re 18 MOTION to Certify

Class filed by ROCHELLE GARZA. (Attachments: # 1

Declaration Brigitte Amiri, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Amiri, Brigitte) (Entered: 11/27/2017)
57 NOTICE of Appearance by William S. Consovoy on behalf of SCOTT LLOYD, STEPHEN WAGNER (Consovoy, William) (Entered: 11/28/2017)
58 MOTION for Leave to Appear Pro Hac Vice :Attorney NamePatrick Strawbridge, :Firm- Consovoy McCarthy Park PLLC, :Address- Ten Post Office Square, 8th Floor South PMB #706, Boston, MA 02109. Phone No. - (617) 227-0548. Fax No. - (617) 227-0548 Filing fee $ 100, receipt number 0090-5239054. Fee Status: Fee Paid. by SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 12/08/2017)

12/08/2017 12/08/2017 12/11/2017 12/15/2017 12/15/2017 12/15/2017 12/15/2017

59 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMichael Park, :Firm- Consovoy McCarthy Park PLLC, :Address- 3 Columbus Circle, 15th Floor, New York, NY 10019. Phone No. (212) 247-8006. Fax No. - (212) 247-8006 Filing fee $ 100, receipt number 0090-5239096. Fee Status: Fee Paid. by SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 12/08/2017)

60 MOTION for Leave to Appear Pro Hac Vice :Attorney NameCaroline Cook, :Firm- Consovoy McCarthy Park PLLC, :Address3033 Wilson Blvd., Suite 700, Arlington, VA, 22201. Phone No. 703-243-9423. Fax No. - 703-243-9423 Filing fee $ 100, receipt number 0090-5239120. Fee Status: Fee Paid. by SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Consovoy, William) (Entered: 12/08/2017)

MINUTE ORDER: Granting 58 59 60 Motions for Leave to Appear Pro Hac Vice. Attorneys Patrick Neilson Strawbridge, Michael H. Park and Caroline Ashley Cook are hereby admitted pro hac vice to appear in this matter on behalf of Defendants Stephen Wagner and Scott Lloyd in their individual capacities. Signed by Judge Tanya S. Chutkan on 12/11/17. (DJS) (Entered: 12/11/2017)

61 Consent MOTION to Amend/Correct 1

Complaint,,,, by

ROCHELLE GARZA (Attachments: # 1 Proposed Amended

Complaint, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/15/2017)

Consent MOTION for Leave to Proceed under Pseudonyms by

62

ROCHELLE GARZA (Attachments: # 1 Text of Proposed

Order)(Spitzer, Arthur) (Entered: 12/15/2017)

MOTION for Temporary Restraining Order by ROCHELLE 63
GARZA (Attachments: # 1 Memorandum in Support, # 2

Declaration of Jane Roe, # 3 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/15/2017)
MINUTE ORDER: Granting 61 Consent Motion to File Amended Complaint. Signed by Judge Tanya S. Chutkan on 12/15/17. (DJS) (Entered: 12/15/2017)

12/15/2017 12/15/2017
12/15/2017 12/16/2017
12/17/2017 12/17/2017 12/17/2017 12/17/2017 12/17/2017

MINUTE ORDER: Granting 62 Consent Motion for Leave to Proceed under Pseudonyms. Signed by Judge Tanya S. Chutkan on 12/15/17. (DJS) (Entered: 12/15/2017)
MINUTE ORDER: Defendants shall file a Response to Plaintiffs'

Motion 63 for a Temporary Restraining Order by 5:00 p.m. on Sunday 12/17/17. To the extent Plaintiffs wish to file a Reply, they may do so by Monday 12/18/17 at 9:00 a.m. A motion hearing is hereby set for Monday 12/18/17. The court will issue an order shortly setting a time for the hearing. Signed by Judge Tanya S. Chutkan on 12/15/17.(DJS) (Entered: 12/15/2017)

AMENDED COMPLAINT against ERIC HARGAN, SCOTT

83

LLOYD, STEPHEN WAGNER filed by ROCHELLE GARZA,

JANE POE, JANE ROE.(td) (Entered: 12/19/2017)

64 NOTICE of Filing Declaration of Jane Poe by ROCHELLE

GARZA re 63 MOTION for Temporary Restraining

Order (Attachments: # 1 Declaration of Jane Poe)(Amiri, Brigitte) (Entered: 12/16/2017)

65

SUPPLEMENTAL MEMORANDUM to re 18 MOTION to

Certify Class filed by ROCHELLE GARZA. (Attachments:

# 1 Text of Proposed Order as Amended)(Michelman, Scott)

(Entered: 12/17/2017)

66 RESPONSE re 63 MOTION for Temporary Restraining Order filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Affidavit)(Shieh, Woei-Tyng) (Entered: 12/17/2017)

67 RESPONSE re 63 MOTION for Temporary Restraining Order filed by SCOTT LLOYD, STEPHEN WAGNER. (Consovoy, William) (Entered: 12/17/2017)

ENTERED IN ERROR. . . . .MOTION for Leave to File Brief of

68

Amici Curiae by STATE OF TEXAS (Keller, Scott) Modified on

12/19/2017 (td). (Entered: 12/17/2017)

MINUTE ORDER: TRO Hearing set for 10:30 am Monday December 18, 2017 in Courtroom 9. Signed by Judge Tanya S. Chutkan on 12/17/17. (DJS) (Entered: 12/17/2017)

12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017 12/18/2017
12/18/2017 12/18/2017

69

REPLY to opposition to motion re 63 MOTION for

Temporary Restraining Order filed by ROCHELLE GARZA.

(Amiri, Brigitte) (Entered: 12/18/2017)

Set/Reset Hearings: Motion Hearing set for 12/18/2017 at 10:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 12/18/2017)

70 NOTICE of Appearance by Ernesto Horacio Molina, Jr on behalf of All Defendants (Molina, Ernesto) (Entered: 12/18/2017)

71 NOTICE of Filing of Amended Proposed Order by ROCHELLE

GARZA re 63 MOTION for Temporary Restraining Order (Attachments: # 1 Text of Proposed Order)(Michelman, Scott) (Entered: 12/18/2017)
72 SEALED MOTION filed by ERIC HARGAN, SCOTT LLOYD. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 12/18/2017)
Minute Entry: Oral argument on motions held on 12/18/2017 before Judge Tanya S. Chutkan; heard and taken under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 12/18/2017)

73

ORDER granting 63 Motion for TRO. The execution of the

foregoing Order shall be stayed for 24 hours from the date and time

of entry to preserve the opportunity to seek emergency relief from

the D.C. Circuit. Failure to comply with the terms of this Order may

result in a finding of contempt. (See Order for further details).

Signed by Judge Tanya S. Chutkan on 12/18/2017. (lctsc3)

(Entered: 12/18/2017)

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 73 74
Order on Motion for TRO, by STEPHEN WAGNER, ERIC HARGAN, SCOTT LLOYD. Fee Status: No Fee Paid. Parties have been notified. (Leo, Sabatino) (Entered: 12/18/2017)

75 TRANSCRIPT OF 12/18/17 TRO MOTION HEARING before Judge Tanya S. Chutkan held on December 18, 2017. Page Numbers: 1-31. Date of Issuance: December 18, 2017. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting Transcript Order Form at www.dcd.uscourts.gov under Request Transcript tab. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90

12/18/2017
12/18/2017 12/18/2017 12/18/2017 12/19/2017

days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 1/8/2018. Redacted Transcript Deadline set for 1/18/2018. Release of Transcript Restriction set for 3/18/2018.(Wayne, Bryan) (Entered: 12/18/2017)
76 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 74
Notice of Appeal to DC Circuit Court. (adc) (Entered: 12/18/2017)
77 MOTION for Leave to File Redacted Version of ORR Decision Document on the Public Record by ROCHELLE GARZA (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/18/2017)
78 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ROCHELLE GARZA (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Proposed redacted document to be filed on the public record)(Spitzer, Arthur) (Entered: 12/18/2017)

USCA Case Number 17-5276 for 74 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. (zrdj) (Entered: 12/19/2017)

Emergency MOTION to Lift Stay of TRO as to JANE POE by

79

ROCHELLE GARZA (Attachments: # 1 Exhibit Appellants

Emergency Motion for Stay Pending Appeal, # 2 Exhibit Defs

Supreme Court Application for a Stay Pending Appeal, # 3

Exhibit D.C. Circuit Order)(Amiri, Brigitte) (Entered: 12/19/2017)

12/19/2017 12/19/2017 12/19/2017 12/19/2017
12/19/2017 12/19/2017 12/19/2017

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 73 80
Order on Motion for TRO, by STEPHEN WAGNER, SCOTT LLOYD. Filing fee $ 505, receipt number 0090-5254034. Fee Status: Fee Paid. Parties have been notified. (Consovoy, William) (Entered: 12/19/2017)
81 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 80
Notice of Appeal to DC Circuit Court. (zsb) (Entered: 12/19/2017)
MINUTE ORDER: In light of the government's Notice of
Appeal 74 filed with respect to Plaintiff Jane Roe only,
Plaintiffs' Motion to Lift Stay 79 as to Plaintiff Jane Poe is GRANTED. Signed by Judge Tanya S. Chutkan on 12/9/17. (DJS) (Entered: 12/19/2017)
82 ERRATA -- Notice of filing of CORRECTED motion for leave to file redacted version of ORR decision document on the public record by ROCHELLE GARZA 77 MOTION for Leave to File Redacted Version of ORR Decision Document on the Public Record filed by ROCHELLE GARZA. (Attachments: # 1
CORRECTED Motion for Leave to File Redacted Version of ORR Decision on the Public Record)(Spitzer, Arthur) (Entered: 12/19/2017)
MINUTE ORDER: Granting 72 Defendants' Motion to File ORR Decision Document Under Seal. Signed by Judge Tanya S. Chutkan on 12/19/17. (DJS) (Entered: 12/19/2017)
USCA Case Number 17-5277 for 80 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, STEPHEN WAGNER. (zrdj) (Entered: 12/19/2017)
NOTICE OF ERROR re 68 Motion for Leave to File; emailed to scott.keller@oag.texas.gov, cc'd 21 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Motion for Leave to File must be the main document and the Memo in Support is filed in the same pdf as the motion. (ztd, ) (Entered: 12/19/2017)

12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/20/2017
12/20/2017 12/21/2017 12/21/2017

NOTICE OF CORRECTED DOCKET ENTRY: re 68

MOTION for Leave to File Brief of Amici Curiae was entered in error and counsel was instructed to refile said pleading. (td) (Entered: 12/19/2017)

MINUTE ORDER: By 5:00 pm the Defendants shall file a redacted version of the Sealed ORR Decision 72 . Signed by Judge Tanya S. Chutkan on 12/19/17. (DJS) (Entered: 12/19/2017)

NOTICE OF FILING REDACTED DOCUMENT to Order by

84

ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER (The

original PDF Document contained privacy information and was

restricted pursuant to the E-Government Act.) (Shieh, Woei-Tyng)

(Entered: 12/19/2017)

RESPONSE re 77 MOTION for Leave to File Redacted Version of

85

ORR Decision Document on the Public Record -- PLAINTIFFS

RESPONSE TO DEFENDANTS RESPONSE TO COURT ORDER -

- filed by ROCHELLE GARZA. (Spitzer, Arthur) (Entered:

12/19/2017)

86 SEALED DOCUMENT filed by ERIC HARGAN, SCOTT LLOYD. re Order on Sealed Motion. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 12/20/2017)

MINUTE ORDER: The Government's request for additional time

(ECF No. 84 ) is hereby GRANTED. Given that this request was made 24 hours ago, the Government shall file any additional briefing to supplement its claim of privilege by noon on December 21, 2017. Plaintiffs shall file their reply, if any, by 4:00 pm on that same day. All filings are limited to five pages in length. Signed by Judge Tanya S. Chutkan on 12/20/17. (DJS) (Entered: 12/20/2017)

93 MANDATE of USCA as to 74 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER ; USCA Case Number 17-5276. (Attachments: # 1 USCA Order)(td) (Entered: 12/26/2017)

Set/Reset Deadlines: Brief due by 12/21/2017. Reply due by 12/21/2017. (tb) (Entered: 12/21/2017)

RESPONSE TO ORDER OF THE COURT re Order, filed by ERIC

87

HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments:

# 1 Exhibit Redacted ORR Decision)(Shieh, Woei-Tyng) (Entered:

12/21/2017)

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12/22/2017 12/22/2017 12/22/2017 12/28/2017

RESPONSE re 72 SEALED MOTION filed by ERIC HARGAN,

88

SCOTT LLOYD. (This document is SEALED and only available to

authorized persons.), 77 MOTION for Leave to File Redacted

Version of ORR Decision Document on the Public Record filed by

ROCHELLE GARZA. (Spitzer, Arthur) (Entered: 12/21/2017)

89 SEALED DOCUMENT filed by ROCHELLE GARZA re 87

Response to Order of the Court, 72 SEALED MOTION filed by ERIC HARGAN, SCOTT LLOYD. (This document is SEALED

and only available to authorized persons.), 88 Response to

motion, 84 NOTICE OF FILING REDACTED DOCUMENT, 77 MOTION for Leave to File Redacted Version of

ORR Decision Document on the Public Record, 85 Response to Document (This document is SEALED and only available to authorized persons.) (Attachments: # 1 New Proposed Redacted Document)(Spitzer, Arthur) (Entered: 12/21/2017)
90 MOTION for an Order Requiring Notice To, or Regarding, Additional Class Members; and for an Order Shortening

Defendants Time in Which to Respond re 65 Supplemental

Memorandum, 18 MOTION to Certify Class by ROCHELLE GARZA, JANE POE, JANE ROE (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/22/2017)

ORDER granting in part and denying in part 77 Plaintiffs' Motion

91

for Leave to File Redacted Version of ORR Decision Document on

the Public Record. Plaintiffs are ordered to file on the public docket

(ECF No. 89 -1), which is a version of the document that includes

additional redactions of the privileged sections. (See order for

details).. Signed by Judge Tanya S. Chutkan on 12/22/17. (DJS)

(Entered: 12/22/2017)

92 NOTICE of Filing redacted ORR document pursuant to Order ECF 91 by ROCHELLE GARZA, JANE POE, JANE ROE re 91

Order on Motion for Leave to File, (Attachments: # 1 Redacted ORR decision document)(Spitzer, Arthur) (Entered: 12/22/2017)
94 Emergency MOTION for Order Extending TRO for Jane Roe and Jane Poe by ROCHELLE GARZA, JANE POE, JANE ROE

12/29/2017 12/30/2017 12/31/2017 01/02/2018 01/02/2018
01/04/2018 01/05/2018 01/08/2018

(Attachments: # 1 Text of Proposed Order Proposed Order)(Amiri, Brigitte) (Entered: 12/28/2017)

95 RESPONSE re 94 Emergency MOTION for Order Extending TRO for Jane Roe and Jane Poe filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Darrow, Joseph) (Entered: 12/29/2017)

96 REPLY to opposition to motion re 94 Emergency MOTION for Order Extending TRO for Jane Roe and Jane Poe filed by ROCHELLE GARZA, JANE POE, JANE ROE. (Amiri, Brigitte) (Entered: 12/30/2017)

ORDER granting 94 Emergency Motion for Order Extending TRO

97

for Jane Roe and Jane Poe. See order for details. Signed by Judge

Tanya S. Chutkan on 12/31/2017. (lctsc3). (Entered: 12/31/2017)

NOTICE OF ERROR re 95 Response to motion; emailed to joseph.a.darrow@usdoj.gov, cc'd 22 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. In future, ECF login must match attorney signature on document; Do not refile. (znmw, ) (Entered: 01/02/2018)

RESPONSE re 90 MOTION for an Order Requiring Notice To, or

98

Regarding, Additional Class Members; and for an Order Shortening

Defendants Time in Which to Respond re 65 Supplemental

Memorandum, 18 MOTION to Certify Class filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Darrow, Joseph) (Entered: 01/02/2018)
Joint MOTION for Extension of Time to File Answer re 83 99
Amended Complaint and to File Second Amended Complaint by ROCHELLE GARZA, JANE POE, JANE ROE (Attachments: # 1 Text of Proposed Order Proposed Order)(Amiri, Brigitte) (Entered: 01/04/2018)
100 ORDER granting 99 Motion for Extension of Time to Answer for All Defendants. Defendants' responses due 21 days after Plaintiffs file their Second Amended Complaint. Signed by Judge Tanya S. Chutkan on 1/5/2018. (lctsc3) Modified on 1/6/2018 (DJS). (Entered: 01/05/2018)
MINUTE ORDER: Finding as moot 44 Motion for Leave to File; finding as moot 44 Motion to Stay. Signed by Judge Tanya S. Chutkan on 1/8/18. (DJS) (Entered: 01/08/2018)

01/08/2018 01/08/2018
01/08/2018 101
01/08/2018 102
01/09/2018 103
01/11/2018 104
01/11/2018 105

MINUTE ORDER: Finding as moot 78 Sealed Motion for Leave to File Document Under Seal. Signed by Judge Tanya S. Chutkan on 1/8/18. (DJS) (Entered: 01/08/2018)
MINUTE ORDER: Granting 68 nunc pro tunc Motion for
Leave to File amicus brief; granting 13 nunc pro tunc Motion for Leave to File amicus brief. This order applies solely to the referenced motions: the movants may file briefs relating to future matters only after obtaining court approval. Signed by Judge Tanya S. Chutkan on 1/8/18. (DJS) (Entered: 01/08/2018)
AMICUS BRIEF by STATE OF TEXAS, STATE OF ARKANSAS, STATE OF LOUISIANA, STATE OF MICHIGAN, STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA. (td) Modified to add filers on 1/9/2018 (znmw). (Entered: 01/09/2018)
AMICUS BRIEF by STATE OF ARKANSAS, STATE OF LOUISIANA, STATE OF MICHIGAN, STATE OF NEBRASKA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF TEXAS, STATE OF MISSOURI, STATE OF WEST VIRGINIA, COMMONWEALTH OF KENTUCKY, MATTHEW G. BEVIN. (td) (Entered: 01/09/2018)
REPLY re 90 MOTION for an Order Requiring Notice To, or Regarding, Additional Class Members; and for an Order Shortening
Defendants Time in Which to Respond re 65 Supplemental
Memorandum, 18 MOTION to Certify Class filed by ROCHELLE GARZA, JANE POE, JANE ROE. (Amiri, Brigitte) Modified event title on 1/10/2018 (znmw). (Entered: 01/09/2018)
AMENDED COMPLAINT against All Defendants filed by ROCHELLE GARZA, JANE POE, JANE ROE, JANE MOE.(Amiri, Brigitte) (Entered: 01/11/2018)
Emergency MOTION for Temporary Restraining Order for Jane Moe by ROCHELLE GARZA, JANE POE, JANE ROE (Attachments: # 1 Memorandum in Support of Motion for TRO, # 2
Exhibit Declaration of Jane Moe, # 3 Text of Proposed Order)(Amiri, Brigitte) (Entered: 01/11/2018)

01/11/2018 106
01/11/2018 107
01/11/2018
01/12/2018 108
01/12/2018 109
01/12/2018 110
01/12/2018 111

MOTION Leave to Proceed under Pseudonym by JANE MORE (Attachments: # 1 Text of Proposed Order)(Amiri, Brigitte) Modified filer on 1/12/2018 (znmw). (Entered: 01/11/2018)
SUPPLEMENTAL MEMORANDUM to re 90 MOTION for an Order Requiring Notice To, or Regarding, Additional Class Members; and for an Order Shortening Defendants Time in Which
to Respond re 65 Supplemental Memorandum, 18
MOTION to Certify Class filed by ROCHELLE GARZA, JANE POE, JANE ROE. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/11/2018)
MINUTE ORDER: Defendants shall file a Response to Plaintiffs'
Motion for a Temporary Restraining Order (ECF No. 105 ) by 5:00 p.m. on Friday 1/12/2018. To the extent that Defendants are in possession of any documentation of ORR decisions made with respect to Plaintiff Jane Moe, Defendants shall file a copy of such documentation along with their response. Should Plaintiffs choose to file a Reply, they may do so by 5:00 p.m. on Saturday 1/13/2018. Signed by Judge Tanya S. Chutkan on 1/11/2018. (lctsc3) (Entered: 01/11/2018)
RESPONSE re 105 Emergency MOTION for Temporary Restraining Order for Jane Moe filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Declaration)(Shieh, Woei-Tyng) (Entered: 01/12/2018)
MOTION for Leave to File Brief of Amici Curiae by STATE OF TEXAS (Attachments: # 1 Brief of Amici Curiae Texas et al., # 2 Text of Proposed Order)(Keller, Scott) (Entered: 01/12/2018)
NOTICE of Supplemental Declaration by ERIC HARGAN,
SCOTT LLOYD, STEPHEN WAGNER re 108 Response to motion (Attachments: # 1 Declaration Jonathan White Supplemental)(Shieh, Woei-Tyng) (Entered: 01/12/2018)
REPLY to opposition to motion re 105 Emergency MOTION for Temporary Restraining Order for Jane Moe filed by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE. (Amiri, Brigitte) (Entered: 01/12/2018)

01/13/2018 112
01/13/2018 113
01/14/2018 114
01/17/2018
01/18/2018 115
02/01/2018 116
02/01/2018 117
02/15/2018 118
02/16/2018 119

NOTICE by ERIC HARGAN, SCOTT LLOYD, STEPHEN

WAGNER re 110 Notice (Other), 108 Response to motion (Leo, Sabatino) (Entered: 01/13/2018)
NOTICE by ERIC HARGAN, SCOTT LLOYD, STEPHEN

WAGNER re 112 Notice (Other), 108 Response to motion (Attachments: # 1 Affidavit)(Leo, Sabatino) (Entered: 01/13/2018)
NOTICE by ERIC HARGAN, SCOTT LLOYD, STEPHEN

WAGNER re 112 Notice (Other), 108 Response to

motion, 113 01/14/2018)

Notice (Other) (Leo, Sabatino) (Entered:

MINUTE ORDER: Finding as moot 109 Motion for Leave to File Amicus Brief. Signed by Judge Tanya S. Chutkan on 1/7/18. (DJS) (Entered: 01/17/2018)
NOTICE by ERIC HARGAN, SCOTT LLOYD, STEPHEN
WAGNER re 53 Response to motion (Attachments: # 1 Declaration)(Leo, Sabatino) (Entered: 01/18/2018)
MOTION to Dismiss Second Amended Complaint Pursuant to Rule 12(b)(1) & Rule 12(b)(6), MOTION to Dismiss for Lack of Jurisdiction Second Amended Complaint by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER (Leo, Sabatino) (Entered: 02/01/2018)

SUPPLEMENTAL MEMORANDUM to re 18 MOTION to Certify Class filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Shieh, Woei-Tyng) (Entered: 02/01/2018)

MOTION to Amend/Correct 104 Amended Complaint by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE (Attachments: # 1 Proposed Amended Complaint, # 2 Text of Proposed Order)(Amiri, Brigitte) (Entered: 02/15/2018)

RESPONSE re 118 MOTION to Amend/Correct 104 Amended Complaint filed by ERIC HARGAN, SCOTT

02/21/2018 120
03/02/2018 121
03/09/2018 122

LLOYD, STEPHEN WAGNER. (Leo, Sabatino) (Entered: 02/16/2018)
REPLY to opposition to motion re 118 MOTION to
Amend/Correct 104 Amended Complaint filed by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE. (Amiri, Brigitte) (Entered: 02/21/2018)
Renewed MOTION to Certify Class , MOTION for Preliminary Injunction by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE (Attachments: # 1 Declaration of Brigitte Amiri in Support of Plaintiffs' Renewed Motion for Class Certification & Preliminary Injunction, # 2 Exhibit A of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 3 Exhibit B of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 4 Exhibit C of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 5 Exhibit D of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 6 Exhibit E of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 7 Exhibit F of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 8 Exhibit G of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 9 Exhibit H of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 10 Exhibit I of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 11 Exhibit J of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 12 Exhibit K of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 13 Exhibit L of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 14 Exhibit Mof Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 15 Exhibit N of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 16 Exhibit O of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 17 Exhibit P of Brigitte Amiri in Support of Plaintiffs' Renewed Motion, # 18 Text of Proposed Order Grantinig Plaintiffs' Motion for Provisional Class Certification, # 19 Text of Proposed Order Granting Plaintiffs' Motion for Class Certification, # 20 Text of Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction)(Amiri, Brigitte) Modified on 3/5/2018 (znmw). (Entered: 03/02/2018)
NOTICE OF FILING REDACTED DOCUMENT to 121
Supplemental MOTION to Certify Class Supplemental MOTION for Preliminary Injunction by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE (The original PDF Document contained privacy information and was restricted pursuant to the EGovernment Act.) (Attachments: # 1 Declaration of Brigitte Amiri

03/16/2018 03/16/2018 03/23/2018 03/30/2018

in Support of Plaintiffs' Renewed Motion for Class Certification & Preliminary Injunction (ECF No. 121), # 2 Exhibit A to Declaration of B. Amiri, # 3 Exhibit E to Declaration of B. Amiri, # 4 Exhibit F to Declaration of B. Amiri, # 5 Exhibit G to Declaration of B. Amiri, # 6 Exhibit H to Declaration of B. Amiri, # 7 Exhibit P to Declaration of B. Amiri)(Amiri, Brigitte) (Entered: 03/09/2018)

NOTICE of Appearance by Michael Christopher Heyse on behalf

123

of ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER

(Heyse, Michael) (Entered: 03/16/2018)

124 RESPONSE re 121 Supplemental MOTION to Certify Class Supplemental MOTION for Preliminary Injunction filed by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Heyse, Michael) (Entered: 03/16/2018)

125

REPLY to opposition to motion re 121 Supplemental

MOTION to Certify Class Supplemental MOTION for Preliminary

Injunction filed by ROCHELLE GARZA, JANE MOE, JANE

POE, JANE ROE. (Amiri, Brigitte) (Entered: 03/23/2018)

MEMORANDUM AND OPINION re Plaintiffs' Motion for Class 126
Certification 18 and Plaintiffs' Motion for a Preliminary

03/30/2018 127

Injunction 5 . Signed by Judge Tanya S. Chutkan on 3/30/18. (DJS) (Entered: 03/30/2018)
ORDER granting 5 Plaintiffs' Motion for Preliminary

04/03/2018 128
04/04/2018 129

Injunction; granting Plaintiffs' 18 Motion to Certify Class. Signed by Judge Tanya S. Chutkan on 3/30/18. (DJS) (Entered: 03/30/2018)
MOTION to Stay re 127 Order on Motion for Preliminary Injunction, Order on Motion to Certify Class by ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Declaration)(Shieh, Woei-Tyng) (Entered: 04/03/2018)
NOTICE of Filing Deposition Transcripts by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE re 121

Supplemental MOTION to Certify Class Supplemental MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A Redacted Scott Lloyd Deposition Transcript, # 2 Exhibit B -

04/05/2018 130
04/06/2018 131
04/09/2018 132
04/09/2018
04/10/2018 133
04/10/2018 134
04/13/2018 135

Redacted Jonathan White Deposition Transcript)(Amiri, Brigitte) (Entered: 04/04/2018)
Memorandum in opposition to re 128 MOTION to Stay re 127
Order on Motion for Preliminary Injunction, Order on Motion to Certify Class filed by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE. (Amiri, Brigitte) (Entered: 04/05/2018)
NOTICE of Filing Proposed Amended Class Certification and Preliminary Injunction Order by ROCHELLE GARZA, JANE
MOE, JANE POE, JANE ROE re 127 Order on Motion for Preliminary Injunction, Order on Motion to Certify Class (Attachments: # 1 PROPOSED AMENDED CLASS CERTIFICATION AND PRELIMINARY INJUNCTION ORDER)(Spitzer, Arthur) (Entered: 04/06/2018)
NOTICE OF APPEAL TO DC CIRCUIT COURT as to 126
Memorandum & Opinion, 127 Order on Motion for Preliminary Injunction, Order on Motion to Certify Class by ERIC HARGAN, STEPHEN WAGNER, SCOTT LLOYD. Fee Status: No Fee Paid. Parties have been notified. (Heyse, Michael) (Entered: 04/09/2018)
USCA Case Number 18-5093 for 132 Notice of Appeal to DC Circuit Court, filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. (zrdj) (Entered: 04/21/2018)
Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because
the appeal was filed by the government re 132 Notice of Appeal to DC Circuit Court,. (td) (Entered: 04/10/2018)
MOTION Notice to Class by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE (Attachments: # 1 Exhibit A - Notice, # 2 Text of Proposed Order)(Amiri, Brigitte) (Entered: 04/10/2018)
ORDER granting Plaintiffs' Motion for Notice to Class 134 . See Order for details. Signed by Judge Tanya S. Chutkan on 4/13/18. (DJS) (Entered: 04/13/2018)

04/16/2018 136
04/25/2018 137
05/18/2018
05/18/2018

AMENDED CLASS CERTIFICATION and PRELIMINARY
INJUNCTION ORDER (See ECF No. 127 ). (See order for details). Signed by Judge Tanya S. Chutkan on 4/16/18. (DJS) (Entered: 04/16/2018)
ORDER denying 128 Defendants' Motion to Stay. See Order for details. Signed by Judge Tanya S. Chutkan on 4/25/2018. (lctsc3). (Entered: 04/25/2018)
MINUTE ORDER: Finding as moot 45 Motion for Reconsideration . Signed by Judge Tanya S. Chutkan on 5/18/18. (DJS) Modified on 5/21/2018 (tb). (Entered: 05/18/2018)
MINUTE ORDER finding as moot 105 Motion for TRO for as

05/18/2018 06/04/2018 06/19/2018 07/06/2018

to Jane Moe. See 114 . Signed by Judge Tanya S. Chutkan on 5/18/18. (DJS) (Entered: 05/18/2018)

MINUTE ORDER: Granting 106 MOTION Leave to Proceed under Pseudonym by JANE MORE. Signed by Judge Tanya S. Chutkan on 5/18/18. (DJS) (Entered: 05/18/2018)

138

ORDER of USCA as to 132 Notice of Appeal to DC Circuit

Court, filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN

WAGNER ; USCA Case Number 18-5093. (ztd) (Entered:

06/05/2018)

139 STIPULATION re 135 Order on Motion for Miscellaneous Relief by ROCHELLE GARZA, JANE MOE, JANE POE, JANE ROE. (Amiri, Brigitte) (Entered: 06/19/2018)

140 MANDATE RECALLED pursuant to USCA Order re 21

07/25/2018 141

Notice of Appeal to DC Circuit Court, 31 USCA Mandate, dated October 24, 2017 ; USCA electronically notified. (ztd) (ztd). (Entered: 07/09/2018)
MANDATE of USCA as to 21 Notice of Appeal to DC Circuit Court filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER. USCA Case Number 17-5236. (Attachments: # 1 USCA Order)(zrdj) (Entered: 07/25/2018)

08/01/2018 142
09/18/2018
09/18/2018 143
09/25/2018
03/15/2019
08/06/2019 147
08/08/2019 144

ORDER: In accordance with the judgment of the Supreme Court on June 4, 2018, and the D.C. Circuit's order of July 25, 2018, the individual claim for injunctive relief asserted by minor J.D. and addressed in the D.C. Circuit's October 24, 2017 order is hereby DISMISSED AS MOOT. See order for details. Signed by Judge Tanya S. Chutkan on 8/1/2018. (lctsc3). (Entered: 08/01/2018)
MINUTE ORDER: Granting 118 Motion to Amend/Correct the complaint. Signed by Judge Tanya S. Chutkan on 9/18/18. (DJS) (Entered: 09/18/2018)
Third AMENDED COMPLAINT against SCOTT LLOYD, STEPHEN WAGNER, ALEX M. AZAR, II filed by JANE POE, JANE MOE, JANE ROE, J.D..(ztd) (Entered: 09/21/2018)
MINUTE ORDER: Denying as as moot, Defendants' motion to
dismiss 116 in light of the pending appeal and the court's 9/18/18 Minute Order allowing Plaintiffs to amend their complaint. Upon resolution of the appeal, the Defendants may file a renewed motion to dismiss, as appropriate. Signed by Judge Tanya S. Chutkan on 9/25/18. (DJS) (Entered: 09/25/2018)
MINUTE ORDER: In light of the appeal in this case pending before the Circuit Court, the Clerk of the Court is hereby directed to ADMINSTRATIVELY CLOSE this case. Upon resolution of the appeal (#18-5093) the parties may file a motion to return this case to the court's active docket. Any such motion shall contain a proposed order for moving forward with this case. Signed by Judge Tanya S. Chutkan on 3/15/19. (DJS) (Entered: 03/15/2019)
MANDATE of USCA as to 132 Notice of Appeal to DC Circuit Court, filed by SCOTT LLOYD, ERIC HARGAN, STEPHEN WAGNER ; USCA Case Number 18-5093. (Attachments: # 1 USCA Judgment)(zrdj) (Entered: 08/09/2019)
MOTION for Preliminary Injunction by J.D., JANE MOE, JANE
POE, JANE ROE (Attachments: # 1 Memorandum in Support
of Motion for Preliminary Injunction, # 2 Declaration of Lindsey Kaley, # 3 Declaration of J. Shoshanna Ehrlich,, # 4 Declaration of Rebecca Garcia Rangel, # 5 Text of Proposed Order Proposed Preliminary Injunction)(Amiri, Brigitte) (Entered: 08/08/2019)

08/08/2019 145
08/09/2019 146
08/09/2019

MOTION to Reopen Case by J.D., JANE MOE, JANE POE, JANE ROE (Attachments: # 1 Text of Proposed Order Re-Opening Case)(Amiri, Brigitte) (Entered: 08/08/2019)
RESPONSE re 145 MOTION to Reopen Case filed by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Text of Proposed Order)(Shieh, Woei-Tyng) (Entered: 08/09/2019)
MINUTE ORDER: Plaintiffs' Motion to Re-Open Case 145 is granted. The Clerk shall restore this case to the court's active docket. By August 12, 2019, the parties shall meet and confer and then file a Joint Report that addresses the following issues: 1) a proposed briefing schedule for Plaintiffs' Motion for a Preliminary

08/12/2019 08/12/2019 08/12/2019

Injunction 144 ; 2) a statement concerning whether the parties anticipate factual disputes between the affiants; 3) a statement concerning whether the parties believe an evidentiary hearing, see LCvR 65.1(d), will be necessary to resolve Plaintiffs' Motion for a Preliminary Injunction, and, if so, how the parties propose proceeding at such a hearing; and 4) a statement from the government whether it is willing to voluntarily cease utilizing the challenged forced disclosure policy until the court decides Plaintiffs' Motion for a Preliminary Injunction. The parties may also address any other issues they believe will be helpful to the court. Any disagreements should be noted in the Joint Report. If the parties cannot agree to a briefing schedule, the government's opposition will be due by August 15, 2019, see LCvR 65.1(c) ("The opposition shall be served and filed within seven days after service of the application for preliminary injunction, and shall be accompanied by all affidavits on which the defendant intends to rely."), and Plaintiffs' reply will be due by August 20, 2019. Signed by Judge Tanya S. Chutkan on 8/9/2019. (lctsc3) (Entered: 08/09/2019)

NOTICE of Appearance by Christina Greer on behalf of All

148

Defendants (Greer, Christina) (Entered: 08/12/2019)

Joint STATUS REPORT and Stipulation of the Parties by J.D.,

149

JANE MOE, JANE POE, JANE ROE. (Attachments: # 1 Text of

Proposed Order)(Amiri, Brigitte) (Entered: 08/12/2019)

150 STIPULATION by JANE MOE, JANE POE, JANE ROE. (ztd);

(see docket entry no. 149 to view.) (Entered: 08/13/2019)

08/13/2019
08/14/2019 08/14/2019 08/27/2019
151 08/27/2019

MINUTE ORDER: The court accepts the Joint Status Report and
Stipulation of the Parties 149 . Defendants' opposition to
Plaintiffs' Motion for Preliminary Injunction 144 is due August 30, 2019. Plaintiffs' reply in further support of their Motion for Preliminary Injunction is due September 13, 2019. However, the court believes that the parties will have a better understanding of issues 2 and 3 -- i.e., potential factual disputes between affiants and whether an evidentiary hearing is needed -- after Defendants submit their opposition. Therefore, the parties are ordered to meet and confer and file a status report on September 4, 2019 as to factual disputes by affiants, and whether an evidentiary hearing is needed, and, if so, how the parties propose proceeding at such a hearing. A subsequent status report is due on September 18, 2019. Signed by Judge Tanya S. Chutkan on 8/13/19. (lctsc3) (Entered: 08/13/2019)
Set/Reset Deadlines: Response due by 8/15/2019. Reply due by 8/20/2019. (tb) (Entered: 08/14/2019)
Set/Reset Deadlines: Status report on September 4, 2019 as to factual disputes by affiants, and whether an evidentiary hearing is needed due by 9/4/2019. Response due by 8/30/2019 Reply due by 9/13/2019. Subsequent status report due by 9/18/2019. (tb) (Entered: 08/14/2019)
Unopposed MOTION for Extension of Time to File
Response/Reply as to 144 MOTION for Preliminary Injunction by ALEX M. AZAR, II, SCOTT LLOYD, STEPHEN WAGNER (Attachments: # 1 Text of Proposed Order)(Greer, Christina) (Entered: 08/27/2019)
MINUTE ORDER: Upon consideration of the Government's Unopposed Motion for Extension, and in recognition of Defendants' agreement to continue to abide by Section 2 of this court's April 16, 2018 Amended Class Certification and Preliminary Injunction
Order, 136 , until 45 days after completion of the briefing of
Plaintiffs' Motion for Preliminary Injunction, 144 , it is hereby ORDERED that Defendants' opposition to Plaintiffs' Motion for
Preliminary Injunction, 144 , is due September 30, 2019. Plaintiffs' reply in further support of their Motion for Preliminary Injunction is due October 30, 2019; and it is further ORDERED that the parties shall meet and confer and file status reports on October 13, 2019, and November 4, 2019, as to factual disputes by

08/28/2019
09/30/2019 152
10/02/2019 153
10/03/2019 11/15/2019
154
12/18/2019 155
01/10/2020 156
01/13/2020 157
01/15/2020 02/07/2020
158

affiants, and whether an evidentiary hearing is needed, and if so, how the parties propose proceeding at such a hearing. Signed by Judge Tanya S. Chutkan on 8/27/2019. (lctsc3) (Entered: 08/27/2019)
Set/Reset Deadlines: Status Report as to factual disputes by affiants and whether hearing is needed due by 11/4/2019. Response due by 9/30/2019 Reply due by 10/30/2019. Status Report due by 10/13/2019. (tb) (Entered: 08/28/2019)
STIPULATION re Stay of the Parties by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Text of Proposed Order)(Greer, Christina) Modified event and text on 10/1/2019 (ztd). (Entered: 09/30/2019)
ORDER granting 152 Joint Stipulation for Stay of Proceedings. Case Stayed until 1/13/20. See Order for more details. Signed by Judge Tanya S. Chutkan on 10/2/2019. (lctsc3) Modified on 10/17/2019 (DJS). (Entered: 10/02/2019)
Set/Reset Deadlines: Attorney Meet and Confer Conference due by 11/14/2019 and 12/20/2019. (tb) (Entered: 10/03/2019)
STATUS REPORT by ALEX M. AZAR, II, ERIC HARGAN. (Shieh, Woei-Tyng) Modified text on 11/15/2019 (ztd). (Entered: 11/15/2019)
STIPULATION re 153 Order on Motion to Stay by ALEX M. AZAR, II. (Shieh, Woei-Tyng) (Entered: 12/18/2019)
STIPULATION for Stay of Proceedings by ALEX M. AZAR, II. (Attachments: # 1 Text of Proposed Order)(Shieh, Woei-Tyng) (Entered: 01/10/2020)
ORDER: On consideration of the parties' Joint Stipulation 156
, the court hereby stays these proceedings until March 9, 2020. See order for details. Signed by Judge Tanya S. Chutkan on 1/13/2020. (lcsd) (Entered: 01/13/2020)
Set/Reset Deadlines: Attorney Meet and Confer Conference due by 2/7/2020. (tb) (Entered: 01/15/2020)
Joint STATUS REPORT by ALEX M. AZAR, II, SCOTT LLOYD, STEPHEN WAGNER. (Greer, Christina) (Entered: 02/07/2020)

02/19/2020
02/20/2020 03/09/2020
159 03/10/2020
04/08/2020 160
04/13/2020 161
04/16/2020

MINUTE ORDER: Having considered the parties' joint status
report 158 , it is hereby ordered that the parties shall file another joint status report by March 10, 2020 and, if necessary, a proposal for moving forward with this litigation. The report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 2/19/20. (DJS) (Entered: 02/19/2020)
Set/Reset Deadlines: Joint Status Report due by 3/10/2020. (tb) (Entered: 02/20/2020)
STIPULATION for stay of proceedings by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Text of Proposed Order)(Greer, Christina) Modified on 3/9/2020 (ztd). (Entered: 03/09/2020)
MINUTE ORDER: Upon consideration of the parties' JOINT
STIPULATION, 159 and in recognition of Defendants' agreement to continue to abide by Section 2 of this Court's April 16, 2018 Amended Class Certification and Preliminary Injunction
Order 136 , and not to enforce the current or any revised policy referenced in the JOINT STIPULATION until 45 days aftercompletion of the briefing of Plaintiffs' Motion for Preliminary Injunction, [ 144], it ishereby ORDERED that these proceedings are stayed until April 8, 2020. Within five days after Plaintiffs receive the policy, the parties will meet and confer and file a joint proposal as to how motion practice should proceed. The joint proposal shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 3/10/2020. (DJS) (Entered: 03/10/2020)
STATUS REPORT by ALEX M. AZAR, II, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Appendix Revised Medical Services Requiring Heightened ORR Involvement Policy)(Shieh, Woei-Tyng) (Entered: 04/08/2020)
STIPULATION for stay of proceedings by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD, STEPHEN WAGNER. (Attachments: # 1 Text of Proposed Order)(Greer, Christina) (Entered: 04/13/2020)
MINUTE ORDER: Having considered parties Joint Stipulation 161
and in recognition of Defendants' agreement to continue to abide by Section 2 of this Court's April 16, 2018 Amended Class
Certification and Preliminary Injunction Order, 136 , and not

04/16/2020 05/11/2020
162 05/11/2020
05/12/2020 06/02/2020
163

to enforce the current or any revised policy referenced in the Joint Stipulation until 45 days after completion of the briefing of
Plaintiffs' Motion for Preliminary Injunction 144 , it is hereby ORDERED that these proceedings will be STAYED pending further order of the court. By May 13, 2020, the parties shall file a joint status report. To the extent the report contains a proposed plan for moving forward with this litigation or contains a proposed lift of the stay, the report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 4/16/2020. (DJS) (Entered: 04/16/2020)
Set/Reset Deadlines: Joint Status Report due by 5/13/2020. (tb) (Entered: 04/16/2020)
STIPULATION by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD. (Attachments: # 1 Text of Proposed Order)(Shieh, WoeiTyng) (Entered: 05/11/2020)
MINUTE ORDER: Having considered the parties' joint status
report 162 and in recognition of Defendants' agreement to continue to abide by Section 2 of this Court's April 16, 2018 Amended Class Certification and Preliminary Injunction Order,
ECF No. 136 , and not to enforce the current or any revised policy referenced in the JOINT STIPULATION until 45 days after completion of the briefing of Plaintiffs' Motion for Preliminary
Injunction, ECF No. 144 , it is hereby ORDERED that these proceedings will be stayed UNTIL FURTHER ORDER OF THE COURT, the parties shall file a joint status report by 6/3/2020 and every 30 days thereafter. To the extent the report contains a proposed plan for moving forward with this litigation or contains a proposed lift of the stay, the report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 5/11/2020. (DJS) (Entered: 05/11/2020)
Set/Reset Deadlines: Joint Status Report due by 6/3/2020. (tb) (Entered: 05/12/2020)
STIPULATED MOTION for Stay by ALEX M. AZAR, II, ERIC HARGAN, SCOTT LLOYD. (Attachments: # 1 Text of Proposed Order)(Shieh, Woei-Tyng) Modified on 6/3/2020 (ztd). (Entered: 06/02/2020)

06/24/2020 07/09/2020 08/04/2020 09/09/2020 09/29/2020
09/30/2020

STIPULATED MOTION to Stay by ERIC HARGAN, SCOTT

164

LLOYD. (Attachments: # 1 Text of Proposed Order)(Shieh, Woei-

Tyng) Modified on 6/24/2020 (ztd). (Entered: 06/24/2020)

STIPULATION by JANE MOE, JANE POE, JANE ROE.

165

(Attachments: # 1 Text of Proposed Order)(Amiri, Brigitte)

(Entered: 07/09/2020)

STIPULATION of the Parties by ROCHELLE GARZA, J.D.,

166

JANE MOE, JANE POE, JANE ROE. (Attachments: # 1 Text of

Proposed Order)(Amiri, Brigitte) (Entered: 08/04/2020)

STIPULATION by ALEX M. AZAR, II. (Attachments: # 1 Text of

167

Proposed Order)(Shieh, Woei-Tyng) (Entered: 09/09/2020)

168 STIPULATION of Voluntary Dismissal by J.D., JANE MOE, JANE POE, JANE ROE. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Text of Proposed Order Proposed Order)(Amiri, Brigitte) (Entered: 09/29/2020)

MINUTE ORDER: Having considered the parties' Joint Stipulation of Dismissal 168 , this action is hereby dismissed without prejudice. Signed by Judge Tanya S. Chutkan on 9/30/2020. (DJS) (Entered: 09/30/2020)

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 Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

c/o ACLU

)

125 Broad Street, 18th Fl.

)

New York, NY 10004,

)

)

Plaintiff,

)

)

v.

)

)

ERIC HARGAN, Acting Secretary of Health )

and Human Services

)

U.S. Department of Health & Human

)

Services

)

200 Independence Avenue, S.W.

)

Washington, D.C. 20201;

)

)

STEPHEN WAGNER, Acting Assistant

)

Secretary for Administration for Children and )

Families, in his official and individual

)

capacity

)

330 C Street, S.W.

)

Washington, D.C. 20201; and

)

)

SCOTT LLOYD, Director of Office of

)

Refugee Resettlement, in his official and

)

individual capacity

)

330 C Street, S.W.

)

Washington, D.C. 20201,

)

)

Defendants.

)

)

No. 17-cv- _____

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES (Interference with minor’s constitutional right to obtain an abortion)

Plaintiff Rochelle Garza, court-appointed guardian ad litem to minor J.D., on behalf a class of similarly situated pregnant unaccompanied immigrant minors in the legal custody of the federal government, for her complaint in the above-captioned matter, alleges as follows:

1

Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 2 of 17
PRELIMINARY STATEMENT 1. There are currently thousands of unaccompanied immigrant minors (also known as unaccompanied children, or “UCs”) in the legal custody of the federal government. These young people are extremely vulnerable: Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted either in their home countries, during their long journey to the United States, or after their arrival; some have also been trafficked for labor or prostitution in the United States or some other country; and many have been separated from their families. 2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion. And as is true with everyone in the United States, the Constitution prohibits the government from imposing an “undue burden” on the right to obtain an abortion. 3. Defendants have recently revised nationwide policies that allow them to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion in violation of their Fifth Amendment rights. Under these nationwide policies, Defendants also force unaccompanied minors who request abortion to visit a pre-approved anti-abortion crisis pregnancy center, which requires the minor to divulge the most intimate details of her life to an entity hostile to their abortion decision, in violation of her First and Fifth Amendment rights. Defendants also force minors to notify parents or other family members of their request for abortion and/or the termination of their pregnancy, or notify family members themselves, in violation of the First and Fifth Amendments. 4. Recently, an unaccompanied immigrant minor in the legal custody of the federal government, J.D., learned she was pregnant and told the shelter in Texas where she lives that she would like to have an abortion. Because Texas requires parental consent or a judicial waiver of that requirement, J.D. (for “Jane Doe;” a motion to refer to her by pseudonymous initials will be forthcoming) went to court and, with the assistance of an attorney ad litem and a guardian ad
2

Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 3 of 17
litem, received judicial permission to consent to the abortion on her own. Defendants have, however, taken the position that J.D. is prohibited from accessing an abortion: Defendants will not transport her for the abortion, nor will they allow anyone else to do so. Defendants are essentially holding J.D. hostage to prevent her from getting an abortion in blatant violation of J.D.’s constitutional rights.
5. Defendants have also forced J.D. to visit a religious, anti-abortion crisis pregnancy center, and, over J.D.’s objections, told J.D.’s mother that J.D. was pregnant. To vindicate her constitutional rights to terminate her pregnancy and to avoid compelled speech, her court-appointed guardian ad litem, Rochelle Garza seeks an immediate TRO to grant J.D. access to judicially approved abortion, and on behalf of the class of similarly situated unaccompanied immigrant minors, a preliminary injunction to prevent Defendants from obstructing, interfering with, or blocking other individuals’ access to abortion.
6. While abortion is a very safe procedure, each week of delay increases the risk associated with it.
7. Absent emergency injunctive relief, Defendants’ actions will have the effect of forcing J.D. to continue her pregnancy and have a baby against her will.
JURISDICTION AND VENUE 8. This action arises under the First and Fifth Amendments to the United States Constitution and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. 9. Plaintiff’s claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable powers of this Court. 10. Plaintiff J.D. is entitled to damages based on civil rights violations committed by federal officials contrary to the First and Fifth Amendments to the United States Constitution pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
3

Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 4 of 17
11. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412.
12. Venue is proper in this district under 28 U.S.C. § 1391(e). PARTIES
13. Plaintiff Rochelle Garza is the court-appointed guardian ad litem for J.D., a minor who came to the United States without her parents from her home country. J.D. was detained by the federal government and placed in a federally funded shelter in Texas. J.D. is years old, pregnant, and told the staff at the shelter where she is currently housed that she wanted an abortion. J.D. faced extreme resistance from Defendants. After Plaintiff’s counsel contacted Defendants’ counsel, J.D. was allowed to pursue a judicial bypass in lieu of securing parental consent for the abortion as required by Texas law. With the assistance of attorney and guardian ad litems, J.D. secured a court order permitting her to have an abortion without parental consent. Nevertheless, Defendants have now taken the position that they will not allow J.D. to access abortion.
14. J.D. was forced to cancel multiple appointments for state-mandated counseling and the abortion due to Defendants’ obstruction, which has pushed J.D. later into pregnancy; although abortion is very safe, each week of delay increases the risks. Abortion is approximately 14 times safer than childbirth in terms of morbidity. Absent a TRO from this Court, J.D. will be forced to carry to term against her will.
15. Defendants also forced J.D. to visit an anti-abortion crisis pregnancy, and over J.D.’s objection, Defendants told J.D.’s mother about her pregnancy.
16. Defendants’ actions have caused, and continue to cause, J.D. physical, mental, and emotional pain and suffering.
17. J.D. will move this Court to be referred to in this litigation by the initials “J.D.” for “Jane Doe” to protect her privacy. She fears retaliation because she has requested an abortion, and she does not want her family to know she is seeking an abortion.
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 5 of 17
18. J.D. sues on her own behalf and as the class representative of other similarly situated young women.
19. Defendant Eric Hargan is the Acting Secretary of the United States Department of Health and Human Services (“HHS”) and is responsible for the administration and oversight of the Department. Defendant Hargan has authority over the Administration for Children and Families, a subdivision of HHS. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Hargan is violating the First and Fifth Amendments.
20. Defendant Steven Wagner is the Acting Assistant Secretary for Administration for Children and Families. Defendant Wagner has authority over the Office of Refugee Resettlement (“ORR”), a subdivision of Administration for Children and Families. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Wagner is violating the First and Fifth Amendments. Defendant Wagner is sued in his individual capacity.
21. Defendant Scott Lloyd is the Director of ORR. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Lloyd is violating the First and Fifth Amendments. Defendant Lloyd is sued in his individual capacity.
FACTS GIVING RISE TO THIS ACTION The Unaccompanied Children (“UC”) Program 22. ORR has responsibility for the “care and custody of all unaccompanied [] children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1). Unaccompanied immigrant minors are under 18 years old, have no legal immigration status, and either have no parent or legal guardian in the United States, or there is no parent or legal guardian in the United States able to provide care and physical custody. 6 U.S.C. § 279(g)(2). 23. By statute, any federal department or agency that determines that it has an unaccompanied immigrant minor in its custody must transfer the minor to ORR within 72 hours
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 6 of 17
of making that determination. Id. § 1232(b)(3). The federal government reports that in Fiscal Year 2016, 59,692 unaccompanied immigrant minors were referred to ORR.
24. The federal government and all of its programs are required to ensure that the best interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland Security Act requires ORR to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. § 279(b)(1)(B).
25. In addition, Section 235 of the Trafficking Victims Protection Act directs HHS to ensure that unaccompanied immigrant minors are “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
26. Most unaccompanied immigrant minors who are referred to ORR are eventually released from custody to parents or sponsors who live in the United States. Such minors are often held in short-term facilities or shelters while they await release to their parents or sponsors. A significant number of unaccompanied immigrant minors are not released to parents or sponsors, and spend longer periods of time in custody. For some minors, ORR cannot identify an individual who can serve as a viable sponsor. Young people who are expected to be in the government’s custody for an extended period or those who have special needs are sometimes transferred to group homes or a foster family. For others, ORR may determine that the minor should be placed in a more restrictive custodial setting. Young people who are flight risks, for example, are held in jail-like facilities with limited, if any, freedom. Unaccompanied Immigrant Minors Are Legally Entitled to Receive Access to Reproductive
Health Care 27. Unaccompanied immigrant minors have an acute need for reproductive health care, which is both time-sensitive and is necessary over the course of their time in federal custody. For example, a high number of these young women are victims of sexual assault. Some of these women will need access to emergency contraception, and some will need access to abortion. Any female aged 10 or older must undergo a pregnancy test within 48 hours of
6

Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 7 of 17
admission to an ORR-funded facility. This is the point at which many young women first learn they are pregnant. Many unaccompanied minors need pregnancy prevention services and/or access to abortion during their short or long periods in ORR custody.
28. The federal government is legally obligated to ensure that all programs that provide care to these young people comply with the minimum requirements detailed in the Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997) (“Flores agreement”). The Flores agreement is a nationwide consent decree that requires the government to provide or arrange for, among other things, “appropriate routine medical . . . care,” including specifically “family planning services[] and emergency health care services.”
29. Additionally, in response to its obligations under the Prison Rape Elimination Act and the Violence Against Women Reauthorization Act of 2013, ORR issued a regulation requiring all ORR-funded care provider facilities to, among other things, provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare. The regulation states, in relevant part, that grantees providing care to unaccompanied immigrant minors who have experienced sexual abuse while in federal custody must ensure “unimpeded access to emergency medical treatment, crisis intervention services, emergency contraception, and sexually transmitted infections prophylaxis.” 45 C.F.R. § 411.92(a). The regulation further provides that grantees must ensure that a young person subject to sexual abuse is offered a pregnancy test, and “[i]f pregnancy results from an instance of sexual abuse, [the] care provider facility must ensure that the victim receives timely and comprehensive information about all lawful pregnancy-related medical services.” Id. § 411.93(d). Grantees were required to comply with this regulation by June 24, 2015.
30. Upon information and belief, unaccompanied immigrant minors face significant barriers to obtaining services not provided by the government and/or its grantees. For example, even if a teen can leave the shelter, she still may not be able to obtain access to abortion or contraceptives without assistance because she likely speaks little or no English; she may have no support system, other than that provided by the federal program; she may have no means of
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 8 of 17
transportation to the doctor’s office; and she may have little or no financial resources. If she is not informed that contraceptives and abortions are available in the United States, she may not even know that these options exist, given that many of these young people come from countries where abortion is illegal.
Defendants’ Interference With, Obstruction, or Prohibition On Unaccompanied Immigrant Minors’ Access to Abortion
31. Defendants are wielding an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion. In March 2017, ORR revised its policies to prohibit all federally funded shelters from taking “any action that facilitates” abortion access for unaccompanied minors in their care without “direction and approval from the Director of ORR.” This includes scheduling appointments with medical providers, ensuring access to non-directive options counseling, ensuring access to court to seek a judicial bypass in lieu of parental consent, and providing access to the abortion itself.
32. In an email to all ORR staff, then-Acting Director of ORR Ken Tota summarized the policy: “Grantees are prohibited from taking any actions in [requests for abortion] without . . . signed authorization from the Director of ORR.”
33. Defendants have exercised their unconstitutional veto power to deny J.D. access to abortion. After Plaintiff’s counsel’s intervention, Defendants permitted J.D. to seek a judicial bypass in lieu of parental consent required by Texas law. J.D. secured that court order with the assistance of an attorney ad litem and a guardian ad litem, Plaintiff Garza. J.D. had an appointment scheduled with a health center for options counseling (the first step in the process of obtaining an abortion under Texas law), but Defendants told the ad litems, Plaintiff’s counsel, and the shelter that Defendants prohibited J.D. to be transported by her ad litems to the health
8

Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 9 of 17
center. Defendants also made clear that J.D. would be prohibited from obtaining the abortion itself.
34. The judicial bypass order obtained for J.D. is still valid. Plaintiff Garza is ready and able to transport J.D. to all appointments necessary for the abortion, including the statemandated options counseling sessions and the medical procedure itself.
35. Upon information and belief, Defendants have instructed the shelter in which J.D. resides to prohibit J.D. from leaving the facility to access abortion, and has told the shelter that if they allow her access, they will revoke the shelter’s government grant. But for that instruction, the shelter is willing to allow Plaintiff Garza to transport J.D. to the abortion facility.
36. Upon information and belief, Stephen Wagner and/or Scott Lloyd personally authorized ORR to block J.D.’s access to abortion.
37. Defendants have also interfered with abortion access for other minors. In fact, the Director of ORR, Scott Lloyd, has taken the position that “[g]rantees should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
38. Defendants’ actions toward J.D. are consistent with their policy, which has been enforced against other young women as well.
39. For example, in March 2017, another unaccompanied minor at a federally funded shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving counseling, she started the medical abortion regimen for terminating a pregnancy. This regimen begins with a dose of mifepristone, followed by a dose of misoprostol within 48 hours later. After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency room of a local hospital in order to determine the health status of [her] and her unborn child.”
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 10 of 17
The Acting Director of ORR, Ken Tota, directed ORR as follows: “[i]f steps can be taken to preserve the life of . . . her unborn child, those steps should be taken.” Eventually, after the intervention of other advocates, ORR allowed the minor to complete the medication abortion and take the second dose of pills.
40. Furthermore, Defendant ORR Director, Scott Lloyd, has personally contacted one or more unaccompanied immigrant minors who was pregnant and seeking abortion, and discussed with them their decision to have an abortion. Upon information and belief, Defendant Lloyd is trying to use his position of power to coerce minors to carry their pregnancies to term.
41. ORR has also created a nationwide list of “Trusted Providers in HHS Cities,” which is predominately comprised of anti-abortion crisis pregnancy centers.
42. Crisis pregnancy centers (“CPCs”) are categorically opposed to abortion, and generally do not provide information about pregnancy options in a neutral way. Many are also religiously affiliated, and proselytize to women.
43. Defendants forced J.D. to visit one of these centers for “counseling,” forcing her to share her most private personal and medical information to an entity that is hostile to her decision to have an abortion.
44. Defendants have also required other minors to be counseled by crisis pregnancy centers, both before and after the abortion, including at the explicit direction of Defendant ORR Director Scott Lloyd.
45. Defendants have also unconstitutionally forced unaccompanied immigrant minors to tell their parents and/or immigration sponsors about their abortion decision, or Defendants themselves have told minors’ family members or sponsors about the minors’ pregnancy and/or abortion decision, against the express wishes of the minor, both before and after the abortion.
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 11 of 17
46. Defendants told J.D.’s mother about J.D.’s pregnancy – over J.D.’s objections – and are trying to force J.D. to also tell her mother she is pregnant and seeking an abortion. In another minor’s case, Defendant Lloyd explicitly required “the grantee or the federal field staff [to] notify her parents of the termination,” even after she had obtained a judicial bypass to be allowed to access abortion without her parents’ involvement or knowledge.
CLASS ALLEGATIONS 47. Pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), Plaintiff Rochelle Garza brings this action as a class on her behalf of J.D., and on behalf of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit. 48. The class is so numerous that joinder is impracticable. In any given year, there are hundreds of pregnant unaccompanied minors in defendants’ custody. Joinder is inherently impractical because the number of unnamed, future class members who will be pregnant while in ORR custody is unknown and unknowable, especially given the transient nature of the unaccompanied minors population and the temporal limitations of pregnancy. The young people affected by ORR’s abortion restriction policy are geographically dispersed across the country. Proposed class members are highly unlikely to file individual suits on their own behalf given the practical, legal, linguistic, monetary, and fear-based barriers that prevent their ability to access independent counsel to challenge ORR’s abortion restrictions. 49. The claims of the Plaintiff Class members share common issues of law, including but not limited to whether: i) ORR’s policy of exercising a veto power over a UC’s abortion access; ii) HHS’s policy of requiring a forced visit to an anti-abortion crisis pregnancy center;
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 12 of 17
and iii) disclosing – or forcing the minor to disclose - to parents or immigration sponsor her abortion decision violate the Constitution.
50. The claims of the Plaintiff Class members share common issues of fact, including but not limited to the implementation of Defendants’ policy and practice of obstructing or preventing of access to abortion in the various ways detailed above.
51. The claims of J.D. are typical of the claims of members of the Plaintiff Class. 52. The named Plaintiff will fairly and adequately protect the interests of the Plaintiff Class. The named Plaintiff has no interest that is now or may be potentially antagonistic to the interests of the Plaintiff Class. The attorneys representing the named Plaintiff are experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel. 53. Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(2). 54. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).
CAUSES OF ACTION FIRST CLAIM FOR RELIEF FIFTH AMENDMENT RIGHT TO PRIVACY AND LIBERTY (PLAINTIFF J.D. AND CLASS AGAINST DEFENDANTS)
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 13 of 17
55. Defendants violate unaccompanied immigrant minors’ right to privacy guaranteed by the Fifth Amendment by wielding a veto power over their abortion decisions, and obstructing, interfering with, or blocking access to abortion, including by forcing minors to visit crisis pregnancy centers and preventing them from going to medical facilities where they can obtain legal abortions.
56. Defendants violate the Fifth Amendment rights of unaccompanied minors by revealing, or forcing the minors to reveal, information about their pregnancy and abortions to their parents or other family members, including immigration sponsors, both before and after the abortion.
SECOND CLAIM FOR RELIEF FREEDOM OF SPEECH
(PLAINTIFF J.D. AND CLASS AGAINST DEFENDANTS)
57. By compelling unaccompanied immigrant minors to discuss their decisions to have abortions and the circumstances surrounding those decisions with crisis pregnancy centers, and with their parents or immigration sponsors, Defendants violate the unaccompanied immigrant minors’ rights against compelled speech guaranteed by the First Amendment.
THIRD CLAIM FOR RELIEF INFORMATIONAL PRIVACY (PLAINTIFF J.D. AND CLASS AGAINST DEFENDANTS)
58. By requiring unaccompanied immigrant minors to disclosure their identities, their pregnancies, and their decisions to seek or have an abortion, to a crisis pregnancy center, parents, and/or immigration sponsors, Defendants violate the minors’ rights to informational privacy guaranteed by the Fifth Amendment.
FOURTH CLAIM FOR RELIEF FIRST AMENDMENT – ESTABLISHMENT CLAUSE
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(PLAINTIFF J.D. AND CLASS AGAINST DEFENDANTS) 59. Defendants violate the Establishment Clause by requiring unaccompanied immigrant minors to obtain counseling at crisis pregnancy centers that are often religiously affiliated, and that proselytize the unaccompanied immigrant minors who are forced to go there. 60. Defendants’ actions alleged herein endorse and impose upon the class members a particular set of religious beliefs. 61. Defendants’ actions alleged herein have the predominant purpose of advancing a particular set of religious beliefs. 62. Defendants’ actions alleged herein have the predominant effect of advancing a particular set of religious beliefs. 63. Defendants’ actions alleged herein are religiously coercive.
FIFTH CLAIM FOR RELIEF FIFTH AMENDMENT AND BIVENS (PLAINTIFF J.D. AGAINST DEFENDANTS WAGNER AND LLOYD) 64. Defendants Wagner and/or Lloyd acted intentionally and unlawfully in violating Plaintiff J.D.’s clearly established rights under the Fifth Amendment by vetoing her abortion decision and blocking her ability to obtain an abortion, and otherwise obstructing, interfering with access to abortion, including forcing J.D. to visit a crisis pregnancy center, telling J.D.’s mother about her pregnancy, and attempting to force J.D. to discuss her pregnancy and abortion decision with her mother. These defendants therefore caused J.D. to suffer injuries that can be compensated with money damages. 65. Defendants Wagner and Lloyd acted with the intention of violating J.D.’s Fifth Amendment rights, or with reckless indifference or callous disregard for J.D.’s Fifth Amendment rights, thus entitling her to punitive damages.
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 15 of 17

66. These violations are redressable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
SIXTH CLAIM FOR RELIEF FIRST AMENDMENT AND BIVENS (PLAINTIFF J.D. AGAINST DEFENDANTS WAGNER AND LLOYD) 67. Defendants Wagner and/or Lloyd acted intentionally and unlawfully in violating J.D.’s clearly established rights under the First Amendment to refrain from compelled speech by forcing J.D. to visit a crisis pregnancy center and discuss her medical decisions. 68. Defendants Wagner and Lloyd acted with reckless indifference or callous disregard for J.D.’s First Amendment rights, thus entitling her to punitive damages. 69. These violations are redressable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in her favor

and: 1.

Certify this action as a class action under Federal Rule of Civil Procedure 23.

2. Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth

above, violate the Establishment and Free Speech Clauses of the First Amendment to the United

States Constitution, and the Fifth Amendment right to privacy, liberty, and informational

privacy;

3. Enter a Temporary Restraining Order preventing Defendants from obstructing

J.D.’s access to abortion;

4. Enter a preliminary injunction as to the Plaintiff Class;

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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 16 of 17

5. Enter a permanent injunction preventing Defendants from wielding a veto power over an unaccompanied minors’ abortion decision, including interfering, obstructing, or blocking her abortion;
6. Enter a permanent injunction preventing Defendants from forcing unaccompanied immigrant minors from visiting crisis pregnancy centers as a condition of having an abortion or after an abortion;
7. Enter a permanent injunction preventing Defendants from revealing, or forcing unaccompanied immigrant minors to reveal, to the minors’ parents or immigration sponsors information about the minors’ abortion decisions, either prior to or after the abortion decisions;
8. Enter a permanent injunction preventing Defendants from retaliating against unaccompanied immigrant minors for seeking or obtaining abortions;
9. Award compensatory and punitive damages to J.D. against Defendants Wagner and Lloyd in an amount to be determined at trial;
10. Award costs and fees for this action, including attorneys’ fees; 11. Award such further relief as this Court deems appropriate.

October 13, 2017

Respectfully Submitted,
/s Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation
of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805
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Case 1:17-cv-02122-TSC Document 1 Filed 10/13/17 Page 17 of 17
aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Motion for admission for pro hac vice forthcoming
Attorneys for Plaintiff
17

 
 Case 1:17-cv-02122-TSC Document 3 Filed 10/14/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

) No. 17-cv-

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

APPLICATION FOR A TEMPORARY RESTRAINING ORDER Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., hereby applies for the issuance of an order temporarily restraining Defendants (along with their respective successors in office, officers, agents, servants, employees, attorneys and anyone acting in concert with them) from, inter alia, interfering with or obstructing J.D.’s access to abortion; forcing, coercing, or requiring J.D. to obtain “counseling” from an anti-abortion entity, including a crisis pregnancy center or “pregnancy resource center” either before or after the abortion; forcing, coercing, or requiring J.D. to notify anyone of her abortion decision, either before or after the abortion; disclosing J.D.’s abortion decision themselves, either before or after the abortion, to her family or immigration sponsor; coercing or attempting to “persuade” J.D. to carry her pregnancy to term; or retaliating against J.D. based on her decision to have an abortion. This motion is based on the memorandum of points and authorities submitted herewith, all declarations, pleadings and filings filed in this action, and such oral arguments and evidence as may be presented at a hearing on the motion. The grounds for this application are that Defendants’ actions and policies violate J.D.’s rights under the First and Fifth Amendments to the Constitution of the United States, insofar as

Case 1:17-cv-02122-TSC Document 3 Filed 10/14/17 Page 2 of 3
these actions and policies unlawfully violate J.D.’s rights to privacy, liberty and informational
privacy, and rights against compelled speech; that J.D. will suffer irreparable injury if the
Defendants are not enjoined; that Defendants will not be injured if a temporary restraining order
issues; and that the public interest favors the issuance of a temporary restraining order.
October 13, 2017
Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Jennifer L. Chou* Mishan R. Wroe* American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org
2

Case 1:17-cv-02122-TSC Document 3 Filed 10/14/17 Page 3 of 3 mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admission for pro hac vice forthcoming Attorneys for Plaintiff
3

 
 Case 1:17-cv-02122-TSC Document 4 Filed 10/14/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-

EMERGENCY MOTION TO SHORTEN DEFENDANTS’ TIME IN WHICH TO RESPOND TO PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER

Pursuant to Fed. R. Civ. P. 6(c)(1)(C) and 83(b), Plaintiff moves for the entry of an order

requiring Defendants to respond on or before Monday, October 16, 2017 to Plaintiff’s

application for a temporary restraining order, filed simultaneously with this motion.

Plaintiff’s motion should be granted because the facility at which Plaintiff J.D. is

scheduled to obtain her abortion, but which she is currently barred from being transported to as a

result of the Defendants’ actions challenged in this lawsuit, only provides abortion care on

Thursdays, Fridays and Saturdays. Pursuant to state-mandated requirements that (1) J.D. wait 24

hours between obtaining compulsory pre-abortion counseling and undergoing the abortion

procedure, and (2) that the same physician perform both the counseling and the procedure itself,

J.D. must be able to go for her counseling on Thursday, October 19 to be able to obtain an

abortion on Friday, October 20 and/or Saturday, October 21. Accordingly, unless J.D. obtains the

relief she seeks that will enable her to see a provider in this window, J.D. will be pushed a week

Case 1:17-cv-02122-TSC Document 4 Filed 10/14/17 Page 2 of 3

further into her pregnancy, delaying her ability to access the care to which she is entitled, at an ever-increasing risk to her physical and mental health and well-being.
In order to resolve this matter before Wednesday, October 18, 2017 – the date on which a temporary restraining order must be issued if Plaintiff J.D. is to obtain the relief she seeks next week – Plaintiff has requested a hearing on or before the morning of Wednesday, October 18, 2017, which would require an expedited response from Defendants. If the application for a temporary restraining order is not ruled upon by Wednesday, October 18, 2017, Plaintiff J.D. will suffer irreparable injury as a result of the violation of her Fifth Amendment rights.
For the reasons stated above, Defendants should be directed to respond by Monday October 16, 2017 to Plaintiff’s application for a temporary restraining order. A proposed order is filed herewith.

October 13, 2017

Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652
2

Case 1:17-cv-02122-TSC Document 4 Filed 10/14/17 Page 3 of 3
bamiri@aclu.org mburrows@aclu.org Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Jennifer L. Chou* Mishan R. Wroe* American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admission for pro hac vice forthcoming Attorneys for Plaintiff
3

 
 Case 1:17-cv-02122-TSC Document 5 Filed 10/14/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

) No. 17-cv-

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

MOTION FOR A PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, hereby applies for the issuance of a preliminary injunction enjoining Defendants (along with their respective successors in office, officers, agents, servants, employees, attorneys and anyone acting in concert with them) from, inter alia, interfering with or obstructing J.D.’s and Plaintiff Class members’ access to abortion; forcing, coercing, or requiring J.D. and Plaintiff Class members to obtain “counseling” from an anti-abortion entity, including a crisis pregnancy center or “pregnancy resource center” either before or after the abortion; forcing, coercing, or requiring J.D. and Plaintiff Class members to notify anyone of their abortion decision, either before or after the abortion; disclosing J.D.’s and Plaintiff Class members’ abortion decision themselves, either before or after the abortion, to the minor’s family or immigration sponsor; coercing or attempting to “persuade” J.D. and Plaintiff Class Members to carry their pregnancies to term; or retaliating against J.D. and Plaintiff Class Members based on their decision to have an abortion. Plaintiff’s counsel has consulted with Defendants’ counsel, who does not consent to the relief requested.

Case 1:17-cv-02122-TSC Document 5 Filed 10/14/17 Page 2 of 3
This motion is based on the memorandum of points and authorities submitted herewith,
all declarations, pleadings and filings filed in this action, and such oral arguments and evidence
as may be presented at the hearing on the motion.
The grounds for this application are that Defendants’ actions and policies violate J.D.’s
and the Plaintiff Class members’ rights under the First and Fifth Amendments to the Constitution
of the United States, insofar as these actions and policies unlawfully violate J.D.’s and the
Plaintiff Class members’ rights to privacy, liberty and informational privacy, and rights against
compelled speech; that J.D. and Plaintiff Class members will suffer irreparable injury if the
Defendants are not enjoined; that Defendants will not be injured if a temporary restraining order
and/or injunction issues; and that the public interest favors the issuance of a temporary
restraining order and/or injunction.
October 13, 2017
Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation
2

Case 1:17-cv-02122-TSC Document 5 Filed 10/14/17 Page 3 of 3
915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Jennifer L. Chou* Mishan R. Wroe* American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admission for pro hac vice forthcoming Attorneys for Plaintiff
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Case 1:17-cv-02122-TSC Document 5-1 Filed 10/14/17 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of J.D. )

and others similarly situated,

) Civil No. 17-cv-

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

PLAINTIFF’S MEMORANDUM IN SUPPORT OF HER APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY
INJUNCTION PRELIMINARY STATEMENT Rochelle Garza, as court-appointed guardian ad litem for J.D., seeks a temporary restraining order to prohibit the federal government from continuing to block J.D. from getting an abortion, and a preliminary injunction to prohibit the federal government from interfering with the Plaintiff Class’s ability to obtain abortions, if they decide to do so.1 J.D. is a 17-year-old unaccompanied immigrant minor who is currently in the federal government’s legal custody, living in a government-funded shelter in Texas. J.D. is 17 years old, pregnant and has decided to have an abortion. Because Texas law requires parental consent or a judicial waiver of that requirement before a minor may obtain an abortion, J.D., with the assistance of a court-appointed attorney ad litem and a guardian ad litem, went to court and obtained judicial authorization to consent on her own to the care. Defendants are nevertheless
1 “J.D.” stands for “Jane Doe,” and Plaintiff’s motion to proceed using pseudonymous initials will be forthcoming.

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refusing to transport, or allow anyone else to transport, J.D. to the health center to obtain counseling or the abortion procedure itself. They are holding her hostage to ensure that she does not have an abortion, but rather continues the pregnancy, and has a baby, against her will. Defendants’ actions are blatantly unconstitutional. Entirely shutting off a person’s access to abortion services is the greatest conceivable “undue burden” on a person’s constitutional right to an abortion — it prohibits her from exercising her rights at all.
J.D. seeks immediate, emergency injunctive relief to prevent Defendants from continuing to obstruct her access to abortion and to allow her out of the shelter to get the care she seeks. Defendants’ actions have already delayed J.D. from getting her abortion for several weeks. Because of requirements imposed by Texas law, the next time J.D. would be able to see the abortion provider for the state-mandated counseling (which must occur at least 24 hours prior to the abortion), and to obtain the abortion is on October 19, 20, and/or 21. If she does not get the abortion during that window she will be delayed at least an additional week. Thus, absent an immediate temporary restraining order, J.D. will be pushed further into her pregnancy, which increases the health risks associated with the procedure, and at some point will be forced to carry to term against her will.
Unfortunately, J.D. is not the only unaccompanied minor subject to Defendants’ unconstitutional actions. Indeed, Defendants’ actions stem from newly adopted policies that apply to unaccompanied immigrant minors nationwide and that purport to grant Defendants unfettered veto power over a minor’s abortion decision, and that erect other unconstitutional barriers in the path of minors seeking abortion access. Therefore, Plaintiff also seeks a preliminary injunction to prohibit Defendants from obstructing or interfering with abortion access for a class of similarly situated pregnant unaccompanied immigrant minors.
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FACTUAL BACKGROUND Unaccompanied immigrant minors come to the United States without their parents, often fleeing violence or abuse. By statutory definition, unaccompanied immigrant minors are under 18 years old, have no legal immigration status, and either have no parent or legal guardian in the United States, or have no parent or legal guardian in the United States who is able to provide care and physical custody. See 6 U.S.C. § 279(g)(2). After their initial apprehension, the Office of Refugee Resettlement (ORR) bears responsibility for the “care and custody of all unaccompanied [] children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1). The federal government and all of its programs are required to ensure that the best interests of the unaccompanied immigrant minor are protected. See 6 U.S.C. § 279(b)(1)(B); 8 U.S.C. § 1232(c)(2)(A). Protecting the minors’ best interests includes ensuring access to health care, including reproductive health care. Indeed, the federal government is legally obligated to ensure that all programs that provide care to these young people comply with the minimum requirements detailed in the Settlement Agreement in Flores v. Reno, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997) (“Flores agreement”). The Flores agreement is a nationwide consent decree that requires the government to provide or arrange for, among other things, “appropriate routine medical . . . care,” including specifically “family planning services[] and emergency health care services.” 2 Additionally, an ORR regulation requires all ORR-funded care provider facilities to, among
2 Federal prisoners and those detained by Immigration Customs and Enforcement (ICE) also have a legal right to access abortion. 28 C.F.R. § 551.23 (a federal inmate may decide whether to have an abortion, and if she does, “the Clinical Director shall arrange for an abortion to take place”); ICE Guidelines, Detention Standard 4.4, Medical Care (if an ICE detainee requests abortion, ICE “shall arrange for transportation at no cost” to the detainee), available at https://www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf.
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other things, provide unaccompanied immigrant minors who are victims of sexual assault while in federal custody with access to reproductive healthcare. 45 C.F.R. § 411.92(a) et seq. Unaccompanied immigrant minors have an acute need for reproductive health care, in part because a high number of these young women are victims of sexual assault, immediately before, during and after their journeys to the United States.
Nevertheless, Defendants have implemented a newly revised policy that allows them to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion. In March 2017, ORR announced that all federally funded shelters are prohibited from taking “any action that facilitates” abortion access for unaccompanied minors in their care without “direction and approval from the Director of ORR.” Ex. 1, Decl. of Brigitte Amiri in Supp. of Pls’ Mot. for TRO/PI (“Amiri Decl.”), Ex. A. This includes arranging for pregnancy options counseling, ensuring access to court to seek a judicial bypass in lieu of parental consent, and providing access to the abortion itself. See, e.g., id., Ex. B. For example, one email from the then-Acting ORR Director summarized that: “Grantees should not conduct [abortion] procedures, or take any steps that facilitate future [abortion] procedures such as scheduling appointments, transportation, or other arrangements without signed written authorization from the ORR Director.” Id., Ex. B (emphasis added). In fact, it is the current ORR Director’s position that “[g]rantees should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.” Id., Ex. C.
Defendants are currently implementing this unconstitutional policy to deny J.D. access to abortion. J.D. is 17 years old, and came to the United States from her home country without her parents. Ex. 2, Declaration of J.D. (“Doe Decl.”) ¶¶ 2–3. She was apprehended and placed into federal custody. Id. ¶ 4. She is currently in a shelter in Texas. Id. She is pregnant, and decided
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to have an abortion. Id. ¶ 5. Instead of arranging for J.D.’s requested medical care, Defendants forced J.D. to visit a religious, anti-abortion crisis pregnancy center where she was required to undergo an ultrasound for no medical purpose, made to reveal intimate details about herself, and subjected to the center’s attempts to dissuade her from having an abortion. Id. ¶ 13. Despite her ordeal, J.D. continued to be resolute in her decision to have an abortion. With the assistance of court-appointed guardian and attorney ad litems, J.D. obtained a judicial bypass of the state’s parental consent requirement and therefore now has the legal right to consent to the procedure. Id. ¶ 6-7.
Thereafter, J.D. had an appointment scheduled with a health center for counseling, but ORR refused to transport, or allow J.D. to be transported by anyone, to the health center. Id. ¶¶ 9–11. Defendants also made clear that J.D. would be prohibited from obtaining the abortion itself. Since that time, Defendants have continued to prevent J.D. from accessing abortion, and have told her mother about her pregnancy over J.D.’s objection. Id. ¶ 15. ORR has ordered the shelter to place J.D. under close supervision at the shelter, and has prohibited the shelter from allowing J.D. to leave the facility for the purpose of accessing abortion counseling or an abortion.
Defendants’ actions have already caused J.D. to delay her abortion by several weeks. Defendants first obstructed her access to the judicial bypass process. After Plaintiff’s counsel called Defendants’ lawyers and she was permitted to seek the bypass, Defendants forced her to miss her original appointment scheduled for September 28, 2017. Faced with this unconstitutional obstruction, J.D. sought to obtain emergency relief on October 5, 2017, by joining as a named plaintiff in American Civil Liberties Union of Northern California v. Burwell, No. 3:16-cv-03539-LB, (N.D. Cal), a case arising from other ORR practices that interfere with
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unaccompanied immigrant minors’ ability to obtain reproductive health care, proceeding against the same Defendants in the District Court for the Northern District of California. Amiri Decl. at ¶ 6. On October 11, 2017, after expedited briefing, Magistrate Judge Beeler issued an order denying Plaintiffs leave to amend the complaint to add J.D., finding that venue and joinder would be improper. In that ruling, however, the court noted that had it granted leave to amend it would have granted the TRO and ordered the requested relief, as the government has “no justification for restricting J.D.’s access.” See American Civil Liberties Union of Northern California v. Burwell., No. 3:16-cv-03539-LB, (N.D. Cal), October 11, 2017 Order Denying Motions for Leave to Amend and a TRO (attached as Ex. J to Amiri Decl.).3
J.D. is not alone. Defendants have interfered with other minors’ access to abortion. For example, in March 2017, an unaccompanied minor at a federally funded shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving the state-mandated counseling, she decided to have a medication abortion. This regimen begins with a dose of mifepristone, which stops the pregnancy from growing, followed by a dose of misoprostol, which expels the pregnancy, within 48 hours. After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency room of a local hospital in order to determine the health status of [her] and her unborn child.” Amiri Decl., Ex. A. The then-Acting Director of ORR, Ken Tota, directed ORR as follows: “[i]f steps can be taken to preserve the life of . . . her unborn child, those steps should be taken.” Id. Eventually, ORR allowed the minor to complete the medication abortion and take the second dose of pills. 3 J.D., with the assistance of her guardian and attorney ad litems, also has initiated a confidential and sealed state court proceeding, under state law, against the shelter for abuse and neglect for failure to ensure that her medical care needs are met. Although the case raises no federal question and involves no federal defendant, the Department of Justice is now representing the shelter, has removed the state case to federal court, and is seeking its dismissal.
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Indeed, high-level officials at ORR in Washington, D.C., have taken the extraordinary step of becoming personally involved with individual minors’ pregnancy and abortion decisions. For example, Scott Lloyd has personally contacted unaccompanied immigrant minors who were pregnant and seeking abortion, and discussed with them their decision to have an abortion. Id., Exs. D, E. This raises serious concerns that Defendant Lloyd is using his position of power to coerce young women to carry their pregnancies to term.
J.D.’s experience, and the experience of other minors described above, is a direct result of policies put in place by ORR. In addition to the policy allowing them to prohibit young women in their care from accessing abortion, ORR has also adopted a policy requiring young women who indicate that they are considering abortion to meet with anti-abortion staff at an HHSapproved site. These sites, contained on a nationwide list of “Trusted Providers in HHS Cities,” are predominately anti-abortion crisis pregnancy centers (“CPCs”). Id., Ex. F. CPCs are categorically opposed to abortion, and generally do not provide information about pregnancy options in a neutral way. In fact, many provide factually inaccurate information about pregnancy and/or abortion. Many are also religiously affiliated, and proselytize to women.4 In addition to Plaintiff J.D., ORR requires other minors seeking abortions to be “counseled” by these CPCs, including some at the explicit direction of ORR Director Scott Lloyd. See id. Ex. G; see also id. Ex. E.
As a matter of practice, ORR is also unconstitutionally forcing unaccompanied immigrant minors to tell their parents and/or immigration sponsors of their pregnancy and abortion decision, or ORR is itself telling minors’ parents and/or sponsors about the minors’ pregnancy and 4 See Minority Staff of the H. Comm. on Gov’t Reform, False and Misleading Health Information Provided By Federally Funded Pregnancy Resource Centers, 109th Cong. 1 (2006), available at http:// www.chsourcebook.com/articles/waxman2.pdf.
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Case 1:17-cv-02122-TSC Document 5-1 Filed 10/14/17 Page 8 of 18
abortion decision, against the express wishes of the minors. For example, Defendants contacted J.D.’s mother in her home country about J.D.’s pregnancy, over J.D.’s objections. Defendants are also trying to force J.D. to tell her mother that she is considering an abortion, despite the fact that J.D. has suffered abuse at the hands of her parents. In the case of another minor, Defendant Lloyd, in an email, directed that “the grantee or the federal field staff must notify her parents of the termination,” even after the minor had obtained a judicial bypass to prevent her parents learning of her decision to terminate her pregnancy. Id., Exs. H, I. J.D. is concerned about her privacy, and does not want any other family members to know of her abortion decision.
ARGUMENT To obtain a preliminary injunction, a plaintiff must establish (1) “that [s]he is likely to succeed on the merits,” (2) “that [s]he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [her] favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Courts in this Circuit have traditionally applied these factors on a “sliding scale,” where a stronger showing on some factors can compensate for a weaker showing others. See, e.g., Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). It has been suggested, but not decided, that a likelihood of success on the merits may be required. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (citing Winter, 555 U.S. at 20-22). Under either approach, Plaintiff makes the necessary showing here. Standards for issuing a temporary restraining order and a preliminary injunction are “the same” and can therefore be analyzed together. Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016).
I. Plaintiff J.D. Is Likely to Succeed on the Merits of Her Claims. A. Defendants’ Conduct Violates Plaintiff’s Fifth Amendment Rights.
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1. Defendants Cannot Block J.D.’s Access to Abortion. In 1992, the Supreme Court in Planned Parenthood v. Casey reaffirmed what it characterized as the “central holding” of Roe v. Wade, namely that the government may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. 505 U.S. 833, 871 (1992). In Casey, the Supreme Court adopted the “undue burden” standard for assessing state laws or regulations that restrict abortion. The Court explained: A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends. Id. at 877. Subsequent Supreme Court decisions reaffirm this principle, most recently in the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016). There is no question that Defendants are violating J.D.’s Fifth Amendment rights by preventing J.D. from obtaining an abortion. Indeed, Defendants are not only refusing to transport her, but are preventing anyone else from transporting her, to the health care facility to obtain an abortion. J.D. has secured private funding for the abortion itself, and her guardian and attorney ad litems stand ready to transport her, and, absent a prohibition from ORR, the shelter would allow her to go. Defendants are essentially holding her hostage to prevent her from exercising her fundamental constitutional right to abortion. The constitutional violation could
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not be more blatant or straightforward: Defendants cannot ban abortion for J.D., or any unaccompanied minor.5
The fact that J.D. is a minor in no way mitigates the constitutional violation here. As the Supreme Court has explained, “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S 52, 74 (1976) (quoted with approval in Bellotti v. Baird, 443 U.S. 622, 634, n.12 (1979)). Thus, even in the context of a minors’ parents, the Court has held that “the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy.” Bellotti, 443 U.S. at 643 (internal quotations and citation omitted); see also Casey, 505 U.S. at 899. Accordingly, although the Court has upheld laws requiring parental consent, it has only done so if there is an alternative confidential mechanism for the minor to obtain authorization for the procedure, such as the judicial bypass process in Texas. Id. And, indeed, J.D. obtained authorization from a Texas court to consent on her own to the abortion. But under ORR’s new policy, ORR has nonetheless vetoed J.D.’s abortion decision. Defendants’ actions, and policy, are a blatant violation of the Fifth Amendment.
5 J.D.’s constitutional rights are not diminished because of her immigration status. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187–88 (D.D.C. 2015) (“[T]he Supreme Court has made clear that ‘once an alien enters the country, the legal circumstances changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.’”) (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
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2. Defendants Cannot Tell Minors’ Parents About Their Abortion Decisions. Moreover, Defendants are also violating the Fifth Amendment by forcing minors to tell their parents or sponsors about their abortion decision, or telling the parents or sponsors themselves. In the context of analyzing the constitutionality of parental consent laws, the Supreme Court has been clear that the minor must have an avenue to obtain an abortion, without consultation or notification to her parents. Bellotti, 443 U.S at 647. As one court put it, if Bellotti means anything, “it surely means that States seeking to regulate minors’ access to abortion must offer a credible bypass procedure, independent of parents or legal guardians.” Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th Cir. 1997); see also Bellotti, 443 U.S. at 647 (holding that if a state requires parental involvement in a minor’s abortion decision the state must provide an procedure through which “every minor must have the opportunity—if she so desires—to go directly to court without first consulting or notifying her parents”). Indeed, “[c]onfidentiality during and after the [judicial bypass] proceeding” is paramount, Indiana Planned Parenthood Affiliates Ass’n v. Pearson, 716 F.2d 1127 (7th Cir. 1983), for the myriad reasons that minors decide not to tell their parents of their abortion decision, including fear of “abuse at the hands of one or more of their parents,” Planned Parenthood of Ind. and Ky., Inc. v. Comm’r, Indiana State Dep’t of Health, No. 1:17-cv-01636SEBDML, 2017 WL 2797757, at *13 (S.D. Ind. June 28, 2017). Once a minor has been granted a judicial bypass, the government ceases to have any legitimate interest in notifying the minor’s parents. As courts have explained, “[w]hen the minor is mature enough to make her own decisions independent of her parents, the State has no more interest in notifying her parents than it would in notifying the parents of an adult woman — namely, none.” Planned Parenthood v. Wasden, 376 F. Supp. 2d 1012, 1020 (D. Idaho 2005)
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(preliminarily enjoining law that allowed for notice to a parent after a minor obtained an emergency abortion); see also Planned Parenthood v. Miller, 63 F.3d 1452, (8th Cir. 1995) (holding that “[b]y showing that they are capable of mature, informed consideration, such minors establish that the State has no legitimate reason for imposing a restriction on their liberty interests that it could not impose on adult women”). Similarly, in cases where a judicial bypass court finds that it is in the best interest of the minor to proceed without telling her parents, “the State has no further reasons for requiring such notice.” Id. at 1460. For all of these reasons, Plaintiff is likely to succeed on the merits of her Fifth Amendment claim.
B. Defendants’ Policies and Conduct Violates Minors’ Free Speech Rights. By compelling a young woman to disclose her decision to have an abortion and discuss the circumstances surrounding that decision—one of the most intimate and personal decisions a person can make—to a third party who is opposed to her decision, Defendants’ policy violates the First Amendment prohibition on government-compelled speech. See Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Daugaard, 799 F. Supp. 2d 1048, 1054–58 (D.S.D. 2011) (preliminarily enjoining under the First Amendment a law requiring patients seeking abortion to first be counseled by a crisis pregnancy center). The First Amendment protects both “[t]he right to speak and the right to refrain from speaking.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). Moreover, the Supreme Court has repeatedly emphasized that “this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (citing cases); accord Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006) (“compelled statements of fact . . . like
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compelled statements of opinion, are subject to First Amendment scrutiny”); Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 797–98 (1988) (law that compels “statements of ‘fact’” subject to same First Amendment scrutiny as law compelling statements of belief). These cases make clear that, subject to limited exceptions not applicable here, laws that compel speech are subject to strict scrutiny. See Riley, 487 U.S. at 798; Wooley, 430 U.S. at 715–16; Gralike v. Cook, 191 F.3d 911, 919–21 (8th Cir. 1999), aff’d, 531 U.S. 510 (2001). As such, a law that compels this kind of private speech can be upheld only if it is narrowly tailored to achieve a compelling state interest.
Defendants’ policy forces minors to be counseled by a CPC, either before and/or after the abortion. J.D. has already been forced to go to a religiously affiliated CPC, where she was forced to look at a sonogram of her fetus, see J.D. Dec ¶ 13, and she does not want to go to one again. Defendants’ policy unquestionably compels speech. Indeed, under Defendants’ policy, minors seeking an abortion must discuss their abortion decision, one of “the most intimate and personal choices a person may make in a lifetime, [a] choice[] [that is] central to personal dignity and autonomy,” Casey, 505 U.S. at 851, with an entity that is hostile to the minors’ abortion decision. Compelling speech in such a manner is unconstitutional unless the Act (1) serves a compelling state interest, and (2) is narrowly drawn to achieve that end. See, e.g., Riley, 487 U.S. at 800; United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). Defendants’ policy fails both prongs of this demanding standard.
Defendants’ policy does not further any compelling interest. Even assuming, arguendo, that it did, Defendants’ policy is not “narrowly tailored.” Most obviously, Defendants’ policy is neither “necessary” nor the least restrictive means, i.e., the means that least infringes on the woman’s First Amendment rights, to further the government’s purported interest in fetal life or
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the woman’s health by ensuring informed and voluntary decision making. The most obvious alternative to Defendants’ policy is both the most sensible and the one universally employed across the country and across virtually all medical circumstances: relying on the patient’s chosen medical providers to ensure that her decision is informed and voluntary. Planned Parenthood of Minnesota, 799 F. Supp. 2d at 1057; see also Casey, 505 U.S. at 884 (“the doctor-patient relation here is entitled to the same solicitude it receives in other contexts”); Doe v. Bolton, 410 U.S. 179, 199–200 (1973). The fact that the Supreme Court has generally upheld laws that require a patient to obtain counseling from the abortion provider prior to obtaining an abortion, see, e.g., Casey, 505 U.S. at 881-84, is irrelevant. Here, J.D. was forced to go to a non-medical, ideological, religiously affiliated anti-abortion entity and discuss her abortion decision. Thus, the Defendants alleged interest can be met without compelling minors to speak to a CPC. Accordingly, Plaintiff is likely to succeed on her First Amendment claim.
C. Plaintiff Will Suffer Irreparable Injury Unless Defendants are Enjoined. Plaintiff J.D. will suffer immediate and irreparable harm if this Court does not require Defendants to provide her with immediate access to medical services to terminate her pregnancy. The right to choose to terminate a pregnancy is, by its nature, of limited duration. A woman who is blocked or seriously delayed in her effort to obtain abortion cannot later exercise her choice even if the impediment to doing so is later removed. That denial of a woman’s right to choose to terminate her pregnancy constitutes irreparable injury was made clear in Roe, 410 U.S. at 153: The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of
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bringing a child into a family already unable, psychologically and otherwise, to care for it. Here, Plaintiff J.D. faces irreparable harm if she is not granted the relief that she seeks and she is forced to carry the pregnancy to term against her will. Other similarly situated young women likewise face irreparable harm from ORR’s policies, which place them in the same position.
Irreparable harm here is caused not only by the denial of access to abortion but by any delay caused by Defendants as well. J.D.’s request for an abortion has already been delayed by Defendants’ conduct. Plaintiff is being exposed to increased medical risks by the delay caused by Defendants; although abortion is very safe, each week the pregnancy progresses, the risks to the woman increase. See Williams v. Zbaraz, 442 U.S. 1309, 1314–15 (1979) (Stevens, J., sitting as Circuit Justice) (increased risk of “maternal morbidity and mortality” supports claim of irreparable injury). “[T]ime is likely to be of the essence in an abortion decision.” H.L. v. Matheson, 450 U.S. 398, 412 (1981). Similar delays imposed on similarly situated young women will cause the same irreparable harm to them.
Plaintiff J.D., and others similarly situated, will also be irreparably harmed if they are forced to tell (or if Defendants tell) family members or immigration sponsors that they are seeking or have obtained an abortion. There are myriad reasons why some minors do not want to tell their parents, or immigration sponsors, including fear of abuse and rejection. See, e.g., Planned Parenthood of Ind. & Ky., 2017 WL 2797757, at *13.
Plaintiff J.D. and the Plaintiff Class will also be irreparably harmed by being forced to be “counseled” by a CPC, in violation of their First Amendment free speech rights. “[A] woman who chooses to undergo an abortion [and who is forced into counseling at a CPC] will experience a high degree of degradation because she will be forced to disclose to her decision to someone who is fundamentally opposed to it.” Planned Parenthood of Minnesota, 799 F. Supp.
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2d at 1063. In addition, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
D. The Balance of Harm Strongly Favors Plaintiff. As discussed, supra, Plaintiff J.D., and others similarly situated, will suffer irreparable harm in the absence of relief from this Court. In contrast, the injunction would impose no measurable harm on Defendants. Defendants have no legal right to prevent young women from accessing abortion care, to force them to go anti-abortion counseling, or to inform their parents or sponsors of the pregnancy or desired abortion against their wishes. J.D. has secured funding for the abortion, and transportation to the abortion provider, and thus there is not even any financial cost to Defendants to allowing J.D. to seek the care that she seeks and is constitutionally entitled to obtained. E. A TRO/Preliminary Injunction Serves the Public Interest.
The public interest is served when constitutional rights are protected. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting Abdah v. Bush, No. 04-cv-1254, 2005 WL 711814 at *6 (D.D.C. Mar. 29, 2005)); accord Lamprecht v. F.C.C., 958 F.2d 382, 390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently conflict with the public interest”); see also Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017); Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely, upholding constitutional rights serves the public interest.”); Planned Parenthood Ass’n of City of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (“the public is certainly interested in the prevention of enforcement of ordinances which may be unconstitutional”); Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) (“the public interest …
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requires obedience to the Constitution”). In the instant case, there is no conceivable way the public interest will be adversely affected by Plaintiff J.D.’s ability to terminate her pregnancy, the most private and intimate of decisions. Thus, there is no harm done to the public interest.
CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that this Court issue a temporary restraining order prohibiting the Defendants from continuing to interfere with her right to obtain an abortion, and a preliminary injunction prohibiting the Defendants from continuing to interfere with the reproductive health rights of the Plaintiff Class.

DATED: October 13, 2017

Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Jennifer L. Chou* Mishan R. Wroe*
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American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admission for pro hac vice forthcoming Attorneys for Plaintiff
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 Case 1:17-cv-02122-TSC Document 18 Filed 10/18/17 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D.,on behalf of herself and others similarly situated,
Plaintiff, v. ERIC D. HARGAN, et al.,
Defendants.

) ) ) ) No. 17-cv-02122-TSC ) ) ) ) ) ) )

PLAINITFF’S MOTION FOR CLASS CERTIFICATION1
SUMMARY OF ARGUMENT AND CLASS DEFINITION
Plaintiff hereby moves for class certification pursuant to Fed. R. Civ. P. 23(c)(1) and
Local Rule 23.1(b). Plaintiff J.D. brings this action on behalf of herself and others similarly
situated to prevent Defendants—the Office of Refugee Resettlement (ORR) and the Department
of Health and Human Services (DHHS), by and through their employees (“Defendants”)—from
obstructing, hindering, blocking or otherwise interfering with unaccompanied immigrant minors’
(UCs’) access to abortion. Plaintiff respectfully moves this Court to certify a class so that J.D.
and others similarly situated may be allowed to exercise their constitutional rights and receive
the pregnancy-related care they need without unconstitutional obstructions, interference or
barriers. Specifically, Plaintiff seeks to certify a class of all pregnant UCs who are or will be in the legal custody of the federal government (“Proposed Class”).2
1 Pursuant to Local Rule 7(m), Plaintiff’s counsel emailed Defendants’ counsel on October 16, 2017, providing notice of Plaintiff’s intent to file the present motion and inquiring as to whether Defendants would consent to the relief requested in this motion. Two days have now elapsed and Defendants still have not responded to Plaintiff’s email. Having satisfied the Rule’s requirements to undertake a “good-faith effort to determine whether there is any opposition to the relief sought” before filing, Plaintiff hereby files this motion. 2 All references to Plaintiff’s “motion to certify a class” throughout this brief and in any accompanying materials filed in connection with this brief include Plaintiff’s request, in the alternative, that the Court provisionally certify the Proposed Class for purposes of preliminary injunctive relief should the Court believe that provisional class certification is more appropriate

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The Proposed Class satisfies the requirements of Fed. R. Civ. P. 23(a) because a class of all pregnant UCs who are or will be in the legal custody of the federal government is a class that is so numerous that joinder is impracticable. The actions of Defendants have led to the denial of pregnancy related care to UCs and raise questions of fact and law common to the class. J.D.’s constitutional claims are typical of those claims held by members of the Proposed Class, and J.D., as well as her attorneys in this case, will adequately and fairly represent the interests of the class. Finally, the Proposed Class satisfies the requirements of Rule 23(b)(2) because the Defendants are acting in a manner generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.
BACKGROUND Plaintiff incorporates by reference the facts submitted in support of her Application for a TRO and Motion for a Preliminary Injunction (ECF Doc. Nos. 3, 5).
ARGUMENT Federal Rule of Civil Procedure 23 governs class actions in federal court, and a plaintiff whose suit meets that Rule’s requirements has a “categorical” right “to pursue his claim as a class action.” Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). The “suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also must fit into one of the three categories described in subdivision (b).” Id. (citing Fed. R. Civ. P. 23(b)). As set forth below, all four of the Rule 23(a) requirements are satisfied here, and the action also satisfies Rule
at that stage. See, e.g., R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 179-80 (D.D.C. 2015) (“In granting such provisional certification, the Court must still satisfy itself that the requirements of Rule 23 have been met. Its analysis is tempered, however, by the understanding that such certifications may be altered or amended before the decision on the merits.) (internal citations and quotations omitted). See also Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 178 (D.D.C. 1999) (relying on Fed. R. Civ. P. 23(c)(1) to grant provisional class certification subject to later possible amendment).
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23(b) because “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
I. THIS ACTION SATISFIES THE CLASS CERTIFICATION REQUIREMENTS OF FED. R. CIV. P. 23(a). A. The Proposed Class Members Are So Numerous That Joinder Is Impracticable. Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). “Demonstrating impracticability of joinder does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.” DL v. D.C., 302 F.R.D. 1, 11 (D.D.C. 2013), aff'd, 860 F.3d 713 (D.C. Cir. 2017) (citation omitted). “There is no specific threshold that must be surpassed in order to satisfy the numerosity requirement; rather, the determination requires examination of the specific facts of each case and imposes no absolute limitations.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (citation omitted); see also Thorpe v. D.C., 303 F.R.D. 120, 144 (D.D.C. 2014) (“There is no specified or minimum number of plaintiffs needed to maintain a class action.”) (citation omitted). Moreover, a “plaintiff need not provide the exact number of potential class members to satisfy the requirement, so long as there is a reasonable basis for the estimate provided.” Lightfoot v. D.C., 246 F.R.D. 326, 335 (D.D.C. 2007).
The Proposed Class is sufficiently numerous. Plaintiff seeks relief on behalf of all pregnant UCs who are or will be in the legal custody of the federal government. All pregnant UCs are affected by Defendants’ revised policy that grants ORR a veto power over a minor’s abortion decision, erects numerous hurdles to a minor’s ability to obtain unbiased counseling about pregnancy options and prompt pregnancy dating, regardless of whether they will ultimately decide to terminate or carry to term their pregnancy, and imposes significant hurdles
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for minors who decide to have an abortion. Government documents suggest there are hundreds of pregnant UCs in federal government custody each year. According to documents received through discovery in another case, between August 2015 and March 2017, there were over a thousand UCs in ORR custody who were pregnant. Ex. 1, Decl. of Brigitte Amiri in Supp. of Pl’s. Mot. for Class Certification (“Amiri Dec.”) ¶ 5, Ex. C. On March 6, 2017 alone, there were 38 pregnant young people in 18 programs across ORR’s national network of shelter facilities. Id. ¶ 6, Ex. D.
Joinder is also inherently impractical because of the unnamed, unknown future class members who will be pregnant while in the legal custody and care of ORR. DL, 302 F.R.D. at 11 (“[F]uture members make joinder inherently impracticable because there is no way to know who they will be and the inherently transitory nature of the class members makes their joinder in a single, non-class suit impossible, since only a portion of the class will have standing to bring their claims at any one time.”) (internal citation omitted); see also Ali v. Ashcroft, 213 F.R.D. 390, 408-09 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005) (“where the class includes unnamed, unknown future members, joinder of such unknown individuals is impracticable and the numerosity requirement is therefore met, regardless of class size”). While this precise number is unknowable, general knowledge and common sense indicate that it is large. In 2014, there were approximately 726 pregnant UCs in ORR custody; in 2015, there were 450; and in 2016, 682. Amiri Dec. ¶ 4, Ex. B; ¶ 5, Ex. C. The Court can reasonably assume that this number will continue to be substantial. Moreover, both the inherently temporal nature of pregnancy and transitory nature of the UC population adds to the impracticability of joining future class members. See J.D. v. Nagin, 255 F.R.D. 406, 414 (E.D. La. 2009) (“The mere fact that the population of the [juvenile detention
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facility] is constantly revolving during the pendency of litigation renders any joinder impractical.”).
Additional factors commonly considered by courts when evaluating numerosity compel the conclusion that class treatment is appropriate. These factors include: “(1) “judicial economy arising from avoidance of a multiplicity of actions”; (2) “geographic dispersion of class members”; (3) “size of individual claims”; (4) “financial resources of class members”; and (5) “the ability of claimants to institute individual suits.” Coleman through Bunn v. D.C., 306 F.R.D. 68, 80 (D.D.C. 2015) (citation omitted). While each of these factors weighs sharply in favor of class certification, factors (2), (4), and (5) are particularly pertinent here. Proposed Class members are scattered across the entire nation. Plaintiff seeks relief on behalf of a Proposed Class of pregnant young people who, being completely new to this country and entirely dependent upon the federal government and its network of grantees, largely lack the knowledge, skills and resources needed to understand—let alone assert—their statutory and constitutional rights on their own. DL, 302 F.R.D. at 11 (certifying class of a school district’s “youngest and most vulnerable pupils, many of whom are indigent and unable to obtain legal services”); see also Coleman, 306 F.R.D. at 80 (certifying a class of individuals who had lost their residential property in foreclosure proceedings prompted by imposition of property tax liens and tax sales, noting that the members were “by definition, uniquely vulnerable”); Leyva v. Buley, 125 F.R.D. 512, 515 (E.D. Wash. 1989) (certifying class of migrant workers and citing class members’ lack of sophistication, limited knowledge of the legal system, limited or non-existent English skills, and fear of retaliation). Moreover, ORR’s willingness to transfer UCs to different sites complicates Proposed Class members’ ability to identify and secure legal representation and obstructs their ability to understand their legal rights and proceed individually. As a result, any
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doubt as to whether Rule 23(a)(1) is met should be resolved in favor of class treatment. Coleman, 306 F.R.D. at 80 (finding numerosity satisfied, in part, because “the vulnerability of many members of the class renders their claims uniquely unsuited for individual prosecution.”).
B. The Class Presents Common Questions of Law and Fact. Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). At bottom, “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). “What matters to class certification ... is not the raising of common ‘questions’— even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 2551–2556. “[P]laintiffs must bridge the gap between individual claims of harm and the existence of a class of persons who have suffered the same injury as that individual.” Id. at 2553 (citation omitted). “[W]here plaintiffs allege widespread wrongdoing by a defendant ... a uniform policy or practice that affects all class members’ bridges the gap.” DL, 302 F.R.D. at 12 (quoting DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013)); see also Thorpe, 303 F.R.D. at 145–46. “As the D.C. Circuit recently explained, commonality is satisfied where there is a uniform policy or practice that affects all class members.” R.I.L-R, 80 F. Supp. 3d at 181; see also DL, 713 F.3d at 128. Such suits “by their very nature often present common questions satisfying Rule 23(a)(2).” 7A Wright, Miller & Kane, Federal Practice & Procedure § 1763 (3d ed. 2005). Proposed Class members here suffer the same injury as a result of Defendants’ new policies—the deprivation of their legally protected right to aspects of pregnancy-related care, including abortion, without interference by Defendants. The claims brought by Plaintiff J.D. on behalf of the Proposed Class raise common questions of both law and fact, including:
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 Whether ORR has policies and practices that interfere, obstruct or prevent pregnant UCs from accessing certain pregnancy-related care, including preventing access to the abortion itself, preventing access to unbiased counseling, preventing access to certain medical examinations, and forcing minors to obtain “counseling” from antiabortion crisis pregnancy centers, which forces them to discuss their most intimate decisions.
 Whether ORR can constitutionally force UCs to tell their parents or sponsors, or tell UCs’ parents and sponsors themselves, about the minors’ pregnancy and/or abortion decision, against the minors’ express wishes—even where they have sought and/or obtained a judicial bypass to ensure that their parents and/or sponsors do not learn of their decision.
 Whether these policies violate the UCs’ Fifth Amendment due process rights.  Whether these policies violate the UCs’ First Amendment rights. Any one of these common issues, standing alone, is enough to satisfy Rule 23(a)(2)’s permissive standard. “[F]actual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.” Bynum v. D.C., 214 F.R.D. 27, 33 (D.D.C. 2003). “Even a single common question will do” to support a commonality finding. Wal-Mart Stores, 131 S. Ct. at 2556; see also Vista Healthplan, Inc. v. Warner Holdings Co. III, 246 F.R.D. 349, 357 (D.D.C. 2007) (“The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.”).
C. The Claims of the Named Plaintiff Are Typical of the Claims of the Members of the Proposed Class.
Rule 23(a)(3) requires that the claims or defenses of the class representatives be typical of the claims or defenses of the class members. “The typicality requirement is concerned with whether the named plaintiffs are appropriate representatives of the class whose claims they wish
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to litigate.” Wal-Mart Stores, 131 S. Ct. at 2550. “A class representative satisfies the typicality requirement if the representative’s claims are based on the same legal theory as the claims of the other class members and her injuries arise from the same course of conduct that gives rise to the other class members’ claims.” Coleman, 306 F.R.D. at 83 (internal citation omitted). Under the rule’s permissive standards, “[f]actual variations between the claims of class representatives and the claims of other class members claims do not negate typicality.” Bynum, 214 F.R.D. at 34 “Rather, if the named plaintiffs’ claims are based on the same legal theory as the claims of the other class members, it will suffice to show that the named plaintiffs’ injuries arise from the same course of conduct that gives rise to the other class members’ claims.” Id. at 35.
Here, Plaintiff J.D.’s legal claims are typical of the Proposed Class. Like other members of the Proposed Class, J.D.’s right to access comprehensive and unbiased pregnancy care in a timely fashion is at stake. She, like other members of the Proposed Class, is pregnant and needs prompt medical care that includes full, prompt, and unbiased options counseling. J.D., like other Proposed Class members who have decided to have an abortion or are considering abortion, or want to learn about the option of abortion from a neutral health care provider, suffer the same injury of constitutional deprivation of rights and harmful delay in accessing medical care as a result of the government’s revised policy. Additionally, J.D., like other Proposed Class members, has privacy rights that are implicated. For example, the Defendants informed J.D.’s mother of her pregnancy despite J.D.’s decision to not inform her mother and despite a court order granting J.D. a judicial bypass. She, like other Proposed Class members, is subject to an unconstitutional veto power over her decision, was denied prompt unbiased options counseling, has been forced to divulge extremely intimate personal information against her will to her to anti-abortion crisis pregnancy center staff, is subject to enormous practical barriers to accessing the care she needs,
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and she may even be forced to carry her pregnancy to term against her will. J.D., like the members of the Proposed Class, has suffered violations of her rights to privacy and free speech as a result of Defendants’ policies, and the relief J.D. seeks is relief that could remedy each class members’ injury. J.D. and the Proposed Class are united in their interest and injury, and raise common legal claims. Thus, the typicality requirement is easily met.
D. The Named Plaintiff Will Adequately Protect the Interests of the Proposed Class and Counsel are Qualified to Litigate this Action. 1. Named Plaintiff
The named Plaintiff will fairly and adequately protect the interests of the Proposed Class because she seeks relief on behalf of the class as a whole and has no interest antagonistic to other members of the class. Their mutual goal is to seek a declaration that Defendants’ challenged policies and practices of denying unaccompanied minors access to pregnancy-related care (including full options counseling and termination) and erecting substantial, common barriers to abortion access are unconstitutional, and to enjoin further constitutional violations. The interest of the class representative is not antagonistic to those of the Proposed Class members, but in fact coincides perfectly with them. See Amiri Dec. ¶ 2, Ex. A.
2. Counsel Plaintiff’s counsel is also adequate for the purposes of Rule 23. Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Two criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 41 (D.D.C. 2017) (quoting Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997)). Both requirements are plainly satisfied here. There are no conflicts of interest between Proposed Class members or counsel. Moreover, the interests of the Proposed Class have been vigorously represented in similar
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litigation in the Northern District of California. Plaintiff is represented by counsel from the American Civil Liberties Union (“ACLU”) Foundation, the ACLU Foundation of the District of Columbia, the ACLU Foundation of Northern California, and the ACLU Foundation of Southern California. These organizations and the individual attorneys on this case have expertise in class actions and constitutional impact litigation. They have participated in numerous cases in federal court defending reproductive freedom and challenging policies and practices within the federal immigration system. There can be no doubt that Plaintiff’s counsel are competent and will adequately represent the class with zeal. II. THIS ACTION SATISFIES THE REQUIREMENT OF RULE 23(b)(2) OF THE
FEDERAL RULES OF CIVIL PROCEDURE. In addition to satisfying the four requirements of Rule 23(a), Plaintiff also must meet one of the requirements of Rule 23(b) for a class action to be certified. Courts in this District have interpreted Rule 23(b)(2) to impose two requirements: “(1) that defendant’s actions or refusal to act are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37; Disability Rights Water Council of Greater Washington v. Washington Metropolitan Area Transit Auth., 239 F.R.D. 9, 28 (D.D.C. 2006). To satisfy Rule 23(b)(2), “it is enough to show that a defendant has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (internal citation omitted). “Rule 23(b)(2) was intended for civil rights cases.” In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015). Certification of a class under Rule 23(b)(2) does not require every single class member to have been injured or aggrieved in the same way by a defendant’s conduct. Rather, a class may properly be certified under Rule 23(b)(2) if the opposing party’s “[a]ction or inaction is directed to a class … even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2) Advisory Committee’s Note (1966). Thus, it is sufficient if the defendant has adopted or engaged in a pattern of activity that is central to the claims of all class members irrespective of
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their individual circumstances and the disparate effects of the conduct. Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994).
Civil rights class actions such as this one are the paradigmatic Rule 23(b)(2) suits, “for they seek classwide structural relief that would clearly redound equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915 (1979); see also Johnson v. Gen. Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979); Elliot v. Weinberger, 564 F.2d 1219, 1229 (9th Cir. 1977) (action to enjoin allegedly unconstitutional government conduct is “the classic type of action envisioned by the drafters of Rule 23 to be brought under subdivision (b)(2)”), aff’d in pertinent part sub nom. Califano v. Yamasaki, 442 U.S. 682, 701 (1979).
A. Defendants Have Acted or Refused to Act on Grounds That Apply Generally to the Class.
Certification of the Proposed Class under Rule 23(b)(2) is appropriate in this case because the Defendants’ policy and practices impact all Proposed Class members. Defendants have adopted a policy that restricts or delays pregnant immigrant minors’ access to fully informed and unbiased options counseling, grants Defendants a veto power over the minors’ decisions about abortion, and erects a substantial barrier to access to abortion. See Pls.’ Mot. for TRO/Preliminary Injunction (ECF Doc. No. 3).
The Proposed Class requests uniform relief in the form of an injunction prohibiting Defendants from denying unaccompanied minors access to constitutionally protected reproductive health care services. Because a single injunction would afford this relief to all members of the Proposed Class, certification under Rule 23(b)(2) is appropriate. See Taylor, 241 F.R.D. at 47 (finding declaratory and injunctive relief proper as to class where defendant “is alleged to have acted or refused to act on grounds generally applicable to all class members and that injunctive relief would be applicable to the entire class.”)
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B. Judicial Economy and the Transitory Nature of the Class Support Class Certification.
Further, certification of the Proposed Class is appropriate because the injunctive and declaratory relief it seeks is necessary to avoid mootness and facilitate enforcement of judgments. See WILLIAM B. RUBENSTEIN, 1 NEWBERG ON CLASS ACTIONS § 2:13 (5th Ed. 2013). Given the temporary nature of pregnancy and the transitory nature of the UC population, absent certification of the Proposed Class, enforcing any judgment entered by the Court will be difficult. Moreover, other unaccompanied minors who meet the class definition or who may do so in the future are certainly entitled to the same rights as J.D. under federal law. Class-wide final injunctive and declaratory relief is therefore appropriate to avoid mootness and to facilitate enforcement of any judgment this Court may enter. See Roe v. Wade, 410 U.S. 113, 125 (1973) (recognizing the short temporal nature of pregnancy naturally causes mootness problems and is a quintessential situation capable of repetition but evading review).
Judicial economy also favors certification. Indeed, even assuming arguendo that all of the putative class members could either be joined to this action or litigate each of their cases as individuals, doing so would constitute a tremendous waste of judicial resources. Matyasovszky v. Hous. Auth. of the City of Bridgeport, 226 F.R.D. 35, 40 (D. Conn. 2005) (“when making a determination of joinder impracticability, relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersions of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members”) (citing Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993)).
Accordingly, all the requirements of Rule 23 are met, and the Court should therefore certify the Proposed Class so that all similarly situated unaccompanied minors may benefit from the injunctive relief sought.
CONCLUSION Plaintiff respectfully requests that the Court grant this motion and enter the attached order
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defining and certifying the class as set forth above so that Plaintiff J.D. and others similarly situated may receive constitutionally protected access to pregnancy care services.

October 18, 2017

Respectfully submitted,
/s Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of

13

Case 1:17-cv-02122-TSC Document 18 Filed 10/18/17 Page 14 of 14 Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admission for pro hac vice forthcoming Attorneys for Plaintiff
14

 
 Case 1:17-cv-02122-TSC Document 20 Filed 10/18/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

TEMPORARY RESTRAINING ORDER Upon consideration of Plaintiff’s application for a temporary restraining order, and any opposition, reply, and further pleadings and arguments; It appears to the Court that: (1) Plaintiff is likely to succeed on the merits of her action; (2) if Defendants are not immediately restrained from preventing her transportation to an abortion facility or otherwise interfering with or obstructing her access to an abortion—including by further forcing her to disclose her abortion decision against her will or disclosing her decision themselves, forcing her to obtain pre- and/or post-abortion counseling from an anti-abortion entity, and/or retaliating against her for her abortion decision—Plaintiff J.D. will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled; (3) the Defendants will not be harmed if such an order is issued; and (4) the public interest favors the entry of such an order. It is, therefore, ORDERED that Plaintiff’s application for a temporary restraining order is hereby GRANTED, and that Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their

Page 1 of 2

Case 1:17-cv-02122-TSC Document 20 Filed 10/18/17 Page 2 of 2
respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are, for fourteen days from the date shown below, hereby:
1. Required to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay to the abortion provider closest to J.D.’s shelter in order to obtain the counseling required by state law on October 19, 2017, and to obtain the abortion procedure on October 20, 2017 and/or October 21, 2017, as dictated by the abortion providers’ availability and any medical requirements. If transportation to the nearest abortion provider requires J.D. to travel past a border patrol checkpoint, Defendants are restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so;
2. Temporarily restrained from interfering with or obstructing J.D.’s access to abortion counseling or an abortion;
3. Temporarily restrained from further forcing J.D. to reveal her abortion decision to anyone, or revealing it to anyone themselves;
4. Temporarily restrained from retaliating against J.D. based on her decision to have an abortion;
5. Temporarily restrained from retaliating or threatening to retaliate against the contractor that operates the shelter where J.D. currently resides for any actions it has taken or may take in facilitating J.D.’s ability to access abortion counseling and an abortion.
It is further ORDERED that Plaintiff shall not be required to furnish security for costs. Failure to comply with the terms of this Order may result in a finding of contempt. Date: October 18, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge Page 2 of 2

 
 No. 17-5236
In the United States Court of Appeals for the District of Columbia Circuit

Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of J.D. and others similarly situated,
Plaintiff-Appellee,
v.
Eric Hargan, Acting Secretary of Health and Human Services, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the District of Columbia
BRIEF FOR THE STATES OF TEXAS, ARKANSAS, LOUISIANA, MICHIGAN, MISSOURI, NEBRASKA, OHIO, OKLAHOMA, AND SOUTH CAROLINA AS AMICI CURIAE IN SUPPORT OF APPELLANTS AND A STAY PENDING APPEAL

Ken Paxton Attorney General of Texas
Jeffery C. Mateer First Assistant Attorney General
Office of the Attorney General P.O. Box 12548 (Mail Code 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov Tel.: (512) 936-1700 Fax: (512) 474-2697

Scott A. Keller Solicitor General
Kyle Hawkins Assistant Solicitor General
David J. Hacker Special Counsel for Civil Litigation

IDENTITY OF PARTIES AND COUNSEL The identity of the parties and their counsel are correctly identified in the parties’ briefs. Counsel for amici curiae are listed on the cover of this brief.
i

Table of Contents Page
Identity of Parties and Counsel ................................................................................i Table of Contents ...................................................................................................ii Index of Authorities ...............................................................................................iii Interest of Amici Curiae.......................................................................................... 1 Introduction ............................................................................................................ 2 Argument................................................................................................................ 3
I. Unlawfully-Present Aliens with No Ties to the United States Have No Constitutional Right to an Abortion on Demand.....................3
II. The District Court’s TRO Harms the Public Interest. ........................ 11 Conclusion............................................................................................................ 13 Certificate of Service............................................................................................. 14 Certificate of Compliance ..................................................................................... 14
ii

Index of Authorities
Page(s) Cases: Am. Civil Liberties Union of Northern California v. Burwell,
No. 3:16-cv-03539-LB (N.D. Cal.)............................................................ 8, 9, 10
Arbelaez v. Newcomb, 1 F. App’x 1 (D.C. Cir. 2001).............................................................................5
Arizona v. United States, 567 U.S. 387 (2012).......................................................................................1, 11
Bellotti v. Baird, 443 U.S. 622 (1979)........................................................................................ 7, 8
Causeway Med. Suite v. Ieyoub, 109 F.3d 1096 (1997) ..........................................................................................8
In re Doe, 501 S.W.3d 313 (Tex. App.—Houston [14th Dist.] 2016) ..................................8
Gonzales v. Carhart, 550 U.S. 124 (2007) ........................................................................................... 1
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) .......................................................................... 4, 5
Landon v. Plasencia, 459 U.S. 21 (1982).......................................................................................... 5–6
McDonald v. City of Chicago, 561 U.S. 742 (2010)..........................................................................................10
Meachum v. Fano, 427 U.S. 215 (1976) ............................................................................................3
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) .............................................................................................7
iii

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)............................................................................................7
Plyler v. Doe, 457 U.S. 202 (1982) ...........................................................................................4
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ............................................................................3
Texas v. United States, 106 F.3d 661 (5th Cir. 1997) ............................................................................. 11
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam) ...................................................................5
United States v. Carpio–Leon, 701 F.3d 974 (4th Cir. 2012).............................................................................10
United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (per curiam) ................................................. 10–11
United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) .................. 4, 11
United States v. Portillo–Munoz, 643 F.3d 437 (5th Cir. 2011) ............................................................................. 10
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ................................................................................1, 2, 4, 5
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)........................................................................................7
Zadvydas v. Davis, 533 U.S. 678 (2001)........................................................................................4, 5
Constitutional Provisions and Rules
U.S. Const. amend. V .............................................................................................3
45 C.F.R. § 411.92(a) ..............................................................................................8
iv

Interest of Amici Curiae Amici curiae are the States of Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina. The States have “a legitimate and substantial interest in preserving and promoting fetal life,” as well as an “interest in promoting respect for human life at all stages in the pregnancy.” Gonzales v. Carhart, 550 U.S. 124, 145, 163 (2007). The States further have an interest in cooperating with the federal government to establish a consistent and correct understanding of the rights of aliens unlawfully present in the United States, as the States “bear[] many of the consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397 (2012). In this case, the district court has entered a TRO effectively declaring that the U.S. Constitution confers on unlawfully-present aliens the absolute right to an abortion on demand even when they have no ties to this country other than the fact of their arrest while attempting to cross the border unlawfully. As far as amici can ascertain, no court has ever before issued such a sweeping order—and with good reason. Under the district court’s reasoning, there will be no meaningful limit on the constitutional rights an unlawfully-present alien can invoke simply by attempting to enter this country. Such relief also contradicts longstanding Supreme Court precedent that full Fifth Amendment rights vest only in those aliens who “have come within the territory of the
1

United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (emphasis added).
Amici thus urge the Court to stay and reverse the district court’s order.1
Introduction The TRO and injunction Plaintiff seeks are unprecedented. Until now, no federal court has ever declared that unlawfully-present aliens with no ties to this country have a constitutional right to abortion on demand. The district court broke new ground, and this Court should stay this order and ultimately reverse. It should hold that Doe is not entitled to a TRO because she cannot prevail on the merits: The Constitution does not confer on Jane Doe the right to an abortion. Furthermore, granting a TRO and preliminary injunction would harm the public interest. Plaintiff argues that the public is better off if Doe can get an abortion. The amici States strongly disagree. Doe openly concedes that she has “no legal immigration status.” Dkt. 3-2 at 3.2 The district court’s order effectively creates a right to abortion for anyone on Earth who entered the United States illegally, no matter how briefly. If Doe has a right to an abortion, it is difficult to imagine what other constitutional protections she would not have by extension. This perverse incentive will burden the public at large as
1 Neither amici nor counsel received any monetary contributions intended to fund preparing or submitting this brief. No party’s counsel authored this brief in whole or in part.
2 Docket numbers refer to filings in this case before the district court.
2

well as the governmental entities that will be tasked with honoring these newfound rights.
ARGUMENT I. Unlawfully-Present Aliens with No Ties to the United States
Have No Constitutional Right to an Abortion on Demand. The Court should stay and reverse the district court’s order because the right Plaintiff asserts does not exist. She therefore cannot show a likelihood of success on the merits, and so the district court necessarily erred in granting a TRO. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (Winter is properly read “at least to suggest if not to hold” that the plaintiff’s “likelihood of success is an independent, freestanding requirement for a preliminary injunction,” which is not weighed against the other factors) (quotation marks omitted)). 1. The “initial inquiry” in assessing any due process claim is whether the Constitution protects the right the plaintiff asserts. See Meachum v. Fano, 427 U.S. 215, 223–24 (1976). Only after confirming that the right at issue exists should a court move on to whether the government has violated that right. Thus, in this case, the Court should begin with a threshold question: do the Fifth Amendment’s substantive due process guarantees apply to unlawfully-
3

present aliens with no connection to this country who were apprehended while attempting to cross the border? The answer is no.3
The Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. While the Supreme Court has held that unlawfully-present aliens are “persons” protected by the Fifth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982), the full scope of the Fifth Amendment’s protections that apply to citizens do not cover everyone who merely attempts to enter this country. As the Supreme Court clarified in United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990), Plyler’s Fifth Amendment analysis “establish[es] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271 (emphasis added).
The Supreme Court reiterated in 2001 that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). But Zadvydas said nothing to alter or undermine Verdugo-Urquidez’s pronouncement that to invoke the full scope of Fifth
3 The district court’s order granting the TRO overlooks this analysis entirely. At no point does the order address the threshold question of whether the Fifth Amendment’s substantive due process guarantees apply to Doe.
4

Amendment rights, an unlawfully-present alien must demonstrate “substantial connections.” See Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (applying “significant voluntary connection” test from Verdugo-Urquidez); United States v. Meza-Rodriguez, 798 F.3d 664, 670 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (same). Indeed, Zadvydas expressly limited its analysis to “aliens who were admitted to the United States but subsequently ordered removed.” 533 U.S. at 682 (emphasis added). By contrast, “[a]liens who have not yet gained initial admission to this country would present a very different question.” Id.
This Court has recognized and applied this framework. Citing VerdugoUrquidez’s “substantial connection” rule, the Court has held that “foreign nationals without a substantial connection to the United States” lack standing to raise constitutional challenges. Arbelaez v. Newcomb, 1 F. App’x 1, 1 (D.C. Cir. 2001) (per curiam) (citing Verdugo-Urquidez, 494 U.S. at 271). This Court has not explained exactly what constitutes a “substantial connection” under Verdugo-Urquidez, but one sister circuit has held that studying for four years at Stanford University was sufficient to establish a “‘significant voluntary connection’ with the United States.” Ibrahim, 669 F.3d at 997. The Ninth Circuit has left unresolved the question whether certain lawfully admitted aliens—such as “tourists, business visitors, and all student visa holders”— could avail themselves of the Fifth Amendment’s protections. Id.
5

Summed up, an unlawfully-present alien must at a minimum demonstrate a “previous significant voluntary connection with the United States” sufficient to prove a “substantial connection with our country” in order to assert the full scope of Fifth Amendment rights. Verdugo-Urquidez, 494 U.S. at 271; Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (staying injunction of immigration order for aliens “who lack any bona fide relationship with a person or entity in the United States”); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (alien’s “constitutional status changes” only after he “gains admission to our country and begins to develop the ties that go with permanent residence”).
2. The Complaint (Dkt. 1) never alleges any facts that would establish that Doe has significant ties to this country. To the contrary, the paragraphs that state facts pertinent to Doe establish no connection to the United States at all:
• Paragraphs 4 and 5 summarize Doe’s current situation but offer no allegations establishing a connection to the United States other than her current unlawful presence.
• Paragraph 13 alleges: “J.D. was detained by the federal government and placed in a federally funded shelter in Texas. J.D. is years [sic] old, pregnant, and told the staff at the shelter where she is currently housed that she wanted an abortion.” This paragraph admits that Doe entered the United States unlawfully but offers no allegations establishing a connection to the United States.
6

• Paragraphs 14 and 15 discuss Doe’s recent efforts to obtain an abortion during her time in custody.
• Paragraphs 33, 34, 35, 36, and 43 allege that the defendants have restricted Doe’s ability to receive an abortion in the United States.
In short, there are 69 paragraphs in the Complaint, and not one of them attempts to meet the Plaintiff’s burden under Verdugo-Urquidez.
Moreover, the declaration that Doe submitted in support of her motion for a temporary restraining order confirms that she has no substantial ties to this country because Doe explicitly admits that she was “detained upon arrival.” Dkt. 3-3 ¶ 4. Doe repeats that she “came to the United States from [her] home country without [her] parents,” and that she is 17 years old. Id. ¶¶ 2, 3. But she never offers any fact establishing a connection to this country. See id. ¶¶ 5-18.
3. Not only are Plaintiff’s factual assertions inadequate, but she further offers no case or authority establishing the right she asked the district court to recognize.
Plaintiff relies on Roe, Casey, and Whole Woman’s Health v. Hellerstedt for the proposition that “the government may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Dkt. 32 at 9 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (plurality op.); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)). But those cases never say or imply that the substantive due process right to an
7

abortion recognized by the Supreme Court extends to unlawfully-present aliens—especially not those who, like Doe, have no ties to this country and were merely apprehended at the border.
Plaintiff relies further on Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976), and Bellotti v. Baird, 443 U.S. 622, 633 n.12 (1979), for the proposition that the principles of Roe and Casey extend to minors. Dkt. 3-2 at 10-11. Those cases, too, did not involve unlawfully-present aliens. Plus, those cases simply confer on minors the right to bypass parentalconsent requirements by initiating a judicial proceeding to establish that an abortion is in their best interests. See Bellotti, 443 U.S. at 651. As Plaintiff admits, “if Bellotti means anything, ‘it surely means that States seeking to regulate minors’ access to abortion must offer a credible bypass procedure, independent of parents or legal guardians.” Dkt. 3-2 at 11 (quoting Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1112 (1997)). But Doe concedes that she already has received a judicial bypass in Texas state court. See Dkt. 3-3 ¶ 6. That ends the relevance of Bellotti and Planned Parenthood of Central Missouri.4
Lacking case support, Plaintiff turns to 45 C.F.R. § 411.92(a) for the proposition that unlawfully-present, unaccompanied minors such as Doe are entitled to reproductive care. Dkt. 1 ¶ 29. But she mischaracterizes § 411.92(a),
4 A judicial bypass order does not confer on a minor the right to obtain an abortion. See In re Doe, 501 S.W.3d 313, 315-16 (Tex. App.—Houston [14th Dist.] 2016). It simply relieves Doe’s abortion provider of any duty to consult her parents.
8

which merely requires certain medical services, including emergency contraception, to minors who are “victims of sexual abuse.” Doe has not alleged that she is the victim of sexual abuse. See Dkt 3-3.
4. Before the district court, Plaintiff wrongly cited the recent order in American Civil Liberties Union of Northern California v. Burwell, No. 3:16-cv03539-LB, (N.D. Cal.) (Dkt. 102)—a case involving this same Jane Doe—to support her motion for a TRO. That court held that the preexisting plaintiff in that case could not permissibly amend its complaint to add Doe and her claims to that lawsuit, an Establishment Clause case that had been pending for over a year. However, that court went on to note that Doe would be entitled to a TRO if she had brought her claims in a different lawsuit in a proper venue. Id. at 2. This Court should disregard that dicta because it is incorrect.
The Northern District of California never even asked—much less analyzed—the threshold question this case presents of whether unlawfully-present aliens with no ties to this country have a Fifth Amendment right to an abortion on demand while unlawfully present in the United States. Instead, the court put the cart before the horse and stated that the federal government has “no justification” for refusing to allow Doe to receive an abortion. Id. But the question of the government’s justification matters only if the right Doe presses exists—and in this case, it does not, as set out above. Had the Northern District of California properly begun with that threshold analysis, instead of assuming without discussion that Doe has a right to an abortion, it would have been forced to reach the opposite conclusion.
9

At any rate, even on its own terms, the Northern District of California’s analysis is incorrect. That court accused the federal government of “actively preventing a woman from getting an abortion.” Id. Plaintiff echoes that point, arguing that the government is “prohibit[ing] her from exercising her rights at all.” Dkt. 3-2 at 2. But both the Plaintiff and the Northern District of California mischaracterize this case. Doe concedes that her presence in this country is unlawful. Dkt. 3-2 at 3 (Doe has “no legal immigration status”). The federal government has explained that Doe is free to voluntarily depart this country. Her “continued custodial status is due mainly to her decision not to file for voluntary departure.” Am. Civil Liberties Union of N. Cal., No. 3:16-cv03539-LB (Dkt. 94 at 6-7). Neither Plaintiff nor the Northern District of California has offered any citation or explanation to support their view that the government blocks access to abortion even when it tells an unlawfully-present alien that she is free to leave.
5. If the district court’s TRO stands, it will have far-reaching and dire consequences throughout constitutional law and undermine settled precedents.
If on the facts of this case Doe has a Fifth Amendment right to an abortion, it is hard to imagine why she could be denied any other constitutional rights— such as the Second Amendment right to keep and bear arms. See McDonald v. City of Chicago, 561 U.S. 742, 778 (2010) (the “right to keep and bear arms” lies among the “fundamental rights necessary to our system of ordered lib-
10

erty”). Yet courts have consistently rejected the notion that unlawfully-present aliens with no substantial connections to this country are protected by the Second Amendment. See United States v. Portillo–Munoz, 643 F.3d 437, 442 (5th Cir. 2011) (“the phrase ‘the people’ in the Second Amendment of the Constitution does not include aliens illegally in the United States”); United States v. Carpio–Leon, 701 F.3d 974, 979 (4th Cir. 2012) (“illegal aliens do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection”); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam) (“the protections of the Second Amendment do not extend to aliens illegally present in this country”); cf. Meza-Rodriguez, 798 F.3d at 669-672 (unlawfully-present alien has Second Amendment rights only because he arrived in the U.S. at a young age and lived here for 20 years).
To hold that Doe has a constitutional right to an abortion in this case would undermine these and others cases holding that individuals in Doe’s circumstances possess only narrow constitutional protections. II. The District Court’s TRO Harms the Public Interest.
If allowed to stand, the TRO will harm the public interest. As the Supreme Court has recognized, the States already “bear[] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397. See Texas v. United States, 106 F.3d 661, 664 (5th Cir. 1997) (Texas’ “educational, medical, and criminal
11

justice expenditures on undocumented aliens” are over a billion dollars annually).
The district court’s order effectively announces that anyone on Earth has any number of constitutional rights simply by being apprehended while trying to cross the United States border. That dramatic expansion of rights available to unlawfully-present aliens with no substantial connection to this country will incentivize even more unlawful entries and further consume public resources at the State and local level.
12

Conclusion For the foregoing reasons, amici urge the Court to stay and reverse the district court’s order granting Plaintiff’s motion for a temporary restraining order.

Respectfully submitted.

Leslie Rutledge Attorney General of Arkansas

Ken Paxton Attorney General of Texas

Jeff Landry Attorney General of Louisiana

Jeffery C. Mateer First Assistant Attorney General

Bill Schuette Attorney General of Michigan
Josh Hawley Attorney General of Missouri
Doug Peterson Attorney General of Nebraska
Michael DeWine Attorney General of Ohio
Mike Hunter Attorney General of Oklahoma
Alan Wilson Attorney General of
South Carolina

/s/ Scott A. Keller Scott A. Keller Solicitor General
KYLE HAWKINS Assistant Solicitor General
David J. Hacker Special Counsel for Civil Litigation
Office of the Attorney General P.O. Box 12548, Mail Code 059 Austin, Texas 78711-2548 (512) 936-1700 scott.keller@oag.texas.gov

13

Certificate of Service I hereby certify that on October 19, 2017 the foregoing document was served via electronic filing on all counsel of record in this case.
/s/ Scott A. Keller Scott A. Keller Solicitor General CERTIFICATE OF COMPLIANCE This brief complies with: (1) the type-volume limitation of Federal Rule of Appellate Procedure 32(g)(1) because it contains 2,790 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii); and (2) the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface (14-point Equity) using Microsoft Word (the same program used to calculate the word count). /s/ Scott A. Keller Scott A. Keller
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 [Oral Argument on Emergency Motion to Stay held October 20, 2017]

No. 17-5236 _____________________

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D.,

Plaintiff-Appellee,

v.

ERIC HARGAN, Acting Secretary of Health and Human Services, et al.,

Defendants-Appellants. _____________________

Appeal from the United States District Court for the District of Columbia (No. 17-cv-02122-TSC)
______________________

EMERGENCY PETITION FOR REHEARING EN BANC TO VACATE THE PANEL’S ORDER AND DENY DEFENDANTS-APPELLANTS’ MOTION FOR
AN EMERGENCY STAY

Brigitte Amiri Meagan Burrows Jennifer Dalven AMERICAN CIVIL LIBERTIES UNION
FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. 212-549-2633 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org

Arthur B. Spitzer Scott Michelman AMERICAN CIVIL LIBERTIES UNION
OF THE DISTRICT OF COLUMBIA
4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 smichelman@acludc.org aspitzer@acludc.org

October 22, 2017

Attorneys for Plaintiff-Appellee [Additional counsel listed below]

CERTIFICATE AS TO PARTIES, AMICI AND RULING UNDER REVIEW Pursuant to this Court’s Circuit Rule 28(a)(1)(A), the undersigned counsel
hereby certifies as follows: Plaintiff-Appellee is Rochelle Garza, the court-appointed guardian ad litem
for J.D., a pregnant unaccompanied minor in the legal custody of the federal government, suing on her own behalf and as the class representative of other similarly situated young women.
The defendants are Eric Hargan, the Acting Secretary of HHS (sued in his official capacity); Steven Wagner, the Acting Assistant Secretary for the Administration for Children and Families (sued in his official and personal capacities); and Scott Lloyd, the Director of the Office of Refugee Resettlement (sued in his official and personal capacities). Only the three official capacity defendants are appellants on this appeal.
No party intervened in the District Court. The States of Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina have sought leave to participate as amici. The ruling under review in this case is the October 20, 2017 Per Curiam Order entered after oral argument by a majority of a Circuit panel consisting of Circuit Judges Henderson, Kavanaugh, and Millett, which dissolved the administrative stay and vacated the District Court’s temporary restraining order
ii

entered on October 18, 2017, directing the District Court to allow the Appellants until Tuesday, October 31, 2017, at 5:00 p.m. Eastern Time to secure a sponsor for J.D. and for J.D. to be released to a sponsor. The Order further instructs that, should a sponsor not be secured and J.D. not be released to the sponsor by that time, the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the Government or J.D. may, if they choose, immediately appeal. The District Court’s order is reported at 2017 WL 4707287. Date: October 22, 2017
/s Arthur B. Spitzer Arthur B. Spitzer Attorney for Plaintiff-Appellee
iii

TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, AMICI AND RULING UNDER
REVIEW ............................................................................................................. ii TABLE OF AUTHORITIES ..................................................................................v BACKGROUND ......................................................................................................2 ARGUMENT ............................................................................................................6
I. THE PANEL’S OPINION CONFLICTS WITH WELL-SETTLED SUPREME COURT PRECEDENT ............................................................6
II. THIS CASE RAISES QUESTIONS OF EXCEPTIONAL IMPORTANCE ............................................................................................12
CONCLUSION .......................................................................................................13 CERTIFICATE OF COMPLIANCE ..................................................................16 CERTIFICATE OF SERVICE ............................................................................17 COPY OF PANEL OPINION………………………………………….Appendix COPY OF MILLETT, J. DISSENT…………………...………………..Appendix DECLARATION OF ROBERT CAREY…………………………..…..Appendix
iv

TABLE OF AUTHORITIES
Cases Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)............................11 Cooper v. Aaron, 358 U.S. 1 (1958) ........................................................................13 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) .........................................3 Garza v. Hargan, No. 17-CV-02122 (TSC), 2017 WL 4707287 (D.D.C. Oct 18,
2017) .................................................................................................................3, 10 Harris v. McRae, 448 U.S. 297 (1979) ....................................................................10 Maher v. Roe, 432 U.S. 464 (1977) .........................................................................10 Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938).........................................12 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987)........7 Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992) .....1 Planned Parenthood v. Casey, 505 U.S. 833 (1992)...........................................6, 13 Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008).........................................................7 Roe v. Wade, 410 U.S. 113 (1973).................................................................. 1, 6, 13 Shapiro v. Thompson, 394 U.S. 618 (1969).............................................................11 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)....................... 1, 6, 8 Statutes 6 U.S.C. § 279 ........................................................................................................4, 8 8 U.S.C. § 1101(a)(27)(J) ........................................................................................12 8 U.S.C. § 1232 ......................................................................................................4, 8
v

8 U.S.C. § 1255(a) ...................................................................................................12 Other Authorities ICE Guidelines, Detention Standard 4.4, Medical Care (if an ICE detainee requests
abortion, ICE “shall arrange for transportation at no cost” to the detainee), 307, available at https://www.ice.gov/doclib/detentionstandards/2011/medical_care_women.pdf ...........................................................10 Linda A. Bartlett et al., Risk Factors For Legal Induced Abortion-Related Mortality In the United States, 103:4 Obstetrics & Gynecology 729 (Apr. 2004) 5 Texas Family Code § 33.003(i)(1)-(2).......................................................................2 Rules Federal Rules of Appellate Procedure 35(b)..............................................................1 Federal Rules of Appellate Procedure 35(b)(1)(A) ...................................................1 Federal Rules of Appellate Procedure 35(b)(1)(B)....................................................1 Regulations 28 C.F.R. § 551.23 ...................................................................................................11 8 C.F.R. § 204.11 .....................................................................................................13
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RULE 35 STATEMENT Pursuant to Fed. R. App. P. 35(b), Appellee Garza hereby seeks emergency en banc rehearing of the panel’s Order of October 20, 2017, which vacated paragraphs 1 and 2 of the district court’s October 18, 2017 temporary restraining order. That order prohibited the federal government from blocking J.D., an unaccompanied immigrant minor in a government-funded shelter in Texas, from having an abortion. “[T]he panel decision conflicts with a decision of the United States Supreme Court,” Fed. R. App. P. 35(b)(1)(A), and “the proceeding involves one or more questions of exceptional importance.” Fed. R. App. P. 35(b)(1)(B). As discussed below, and in Judge Millett’s dissent from the panel’s order, the panel’s ruling “defies controlling Supreme Court precedent.” Garza v. Hargan, No. 17-5236, Doc. 1700712, at 2 (D.C. Cir. Oct. 20, 2017) (Millett, J., dissenting) (“Millett Dissent”). Specifically, the panel majority’s decision allowing the federal government to continue to block J.D. from accessing abortion violates decades of well-settled Supreme Court precedent that holds that the government may not impose an undue burden on—or, as in this extraordinary case, completely block—a woman’s ability to obtain an abortion. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Moreover, this case involves a question of exceptional importance, namely, whether the
1

government may “sacrifice[] J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.” Millett Dissent at 2.
While this litigation proceeds, a seventeen-year-old pregnant woman waits to hear whether she will be able to have the abortion she desires or whether instead the government will be allowed to force her to continue the pregnancy and have a baby against her will. Our government has held her in this unlawful position for almost a month; this Court should not allow this injustice to continue any longer. For these reasons, Plaintiff requests that this Court swiftly grant rehearing en banc, vacate the panel’s order and deny Defendants’ motion for a stay pending appeal.
BACKGROUND J.D. is a seventeen-year-old, unaccompanied immigrant minor who is currently in the federal government’s legal custody, and lives in a governmentfunded shelter in South Texas run by a private contractor. She is approximately 15-½ weeks pregnant, and she strongly desires an abortion. Four weeks ago, with the assistance of court-appointed guardian and attorney ad litems, a Texas state court ruled that J.D. was either “mature and sufficiently informed to make the decision to have an abortion” and/or that “notification and attempt to obtain consent would not be in [her] best interest,” Texas Family Code § 33.003(i)(1)-(2), and granted her legal authority to consent to the procedure. That state-law determination is not subject to collateral review here. See D.C. Court of Appeals v.
2

Feldman, 460 U.S. 462, 476 (1983). Since that time, however, the federal government has refused to allow anyone to transport J.D. to the health care center that provides abortion. This is so despite the fact that J.D. is not seeking any assistance from Defendants to obtain the abortion: Her court-appointed representatives or the shelter personnel stand ready to transport her; the health center stands ready to provide the care; and private funds have been provided to pay for the procedure. All Defendants must do is to step aside and stop blocking the door.
The district court and Judge Millett both concluded that the government’s actions are blatantly unconstitutional, violating forty years of Supreme Court precedent. Garza v. Hargan, No. 17-CV-02122 (TSC), 2017 WL 4707287, at *1 (D.D.C. Oct. 18, 2017)(“Chutkan Order”); Millett Dissent at 2-3, 5. The panel’s order does not confront the constitutional issues in any meaningful way. Instead it allows the government to continue to deny J.D.’s constitutional rights while Defendants may attempt to identify, investigate, approve, and release J.D. to a sponsor.1 The panel majority’s order does so notwithstanding the fact that Defendants have been under a statutory obligation to attempt to identify such a
1 Given that Defendants’ stated goal is to “promot[e] childbirth,” Appellants’ Reply in Support of Their Emergency Motion for Stay Pending Appeal, Doc. 1700424, at 1, the extent of their willingness to urgently locate, approve, and release J.D. to a sponsor who will allow her to obtain an abortion may fairly be questioned.
3

sponsor for more than six weeks. 8 U.S.C. § 1232; 6 U.S.C. § 279; Declaration of Christine Cortez (“Cortez Decl”) ¶ 6 (filed under seal in Garza v. Hargan, No. 17CV-02122 (TSC)(D.D.C.); Millett Dissent at 7. And they have rejected both of the potential sponsors identified by J.D.’s family. Oral Arg. at 5:04; 1:18:30, Garza v. Hargan, No. 17-5236, (D.C. Cir. Oct. 20, 2017), before Henderson, J., Kavanaugh, J., Millett., J, https://www.cadc.uscourts.gov/recordings/recordings.nsf/ (hereinafter “Oral Arg.”); Cortez Decl. ¶ 7. Moreover, at argument before the panel, Defendants could not point to any additional names that they are currently considering. Oral Arg. at 4:30; 1:19:25.
Nor does the panel’s order allow J.D. to obtain her abortion if efforts to identify a sponsor are unsuccessful. Rather, under the order, at that point—on October 31 at 5:00 p.m., almost five weeks after her original appointment for an abortion—J.D. must return to district court and start the process again, with appeals to follow. Garza v. Hargan, No. 17-5236, Doc. 1700704, (D.C. Cir. Oct. 20, 2017) (“Panel Order”); Millett Dissent at 6 (noting that “[t]he court orders J.D. to continue her pregnancy for weeks”). All the while, this young, isolated woman remains pregnant against her will, causing her irreparable harm. The government has already delayed J.D.’s abortion for almost four weeks. The panel’s order permits the government to, at minimum, delay her for two more. Every additional day she must remain pregnant against her will places a severe strain on J.D., both
4

physically and emotionally. Every additional week the government delays her abortion increases the risks associated with the procedure. See, e.g., Linda A. Bartlett et al., Risk Factors For Legal Induced Abortion-Related Mortality In the United States, 103:4 Obstetrics & Gynecology 729 (Apr. 2004) (relative risk of abortion increases 38% per gestational week). Very soon she will no longer be able to get an abortion in South Texas. In a matter of weeks, J.D. will no longer be able to get an abortion at all, and the government will have forced J.D. to have a child against her will.
Based on the discussion at oral argument, it appears that the panel majority is subjecting J.D. to these additional risks and additional weeks of unwanted pregnancy based on its speculative hope that J.D. can be released to a sponsor quickly enough to enable the Court to avoid deciding this controversy. While delay in the hope of non-judicial resolution may be a sensible course in an appropriate case, it is not proper in this case, which involves the ongoing and irreparable violation of J.D.’s well-settled constitutional rights. Moreover as the declaration filed by Robert Carey, former Director of the Office of Refugee Resettlement makes plain, the notion that an appropriate sponsor for J.D. could be identified, properly vetted, and approved in an eleven day time frame is entirely unrealistic. See Declaration of Robert Carey (“Carey Decl.”) ¶¶ 5, 28 (filed in Garza v. Hargan, No. 17-CV-02122 (TSC) (D.D.C.), attached hereto. The panel’s
5

desire to avoid ruling on the merits does not outweigh J.D.’s right to terminate her pregnancy.
ARGUMENT I. THE PANEL’S OPINION CONFLICTS WITH WELL-SETTLED
SUPREME COURT PRECEDENT The panel’s order directly conflicts with the central holding of Roe v. Wade 410 U.S. 113 (1973), as reaffirmed in Planned Parenthood v. Casey, 505 U.S. 833 (1992) and most recently in Whole Woman’s Health v. Hellerstedt 136 S. Ct. 2292 (2016). As Roe and its progeny make clear, the government may not erect a ban on a woman’s abortion or place a substantial obstacle her path. Nevertheless, the panel’s order enables the government to continue to physically block J.D.’s access to abortion, which is the ultimate “undue burden” prohibited by clear Supreme Court precedent. As Judge Millett’s statement in dissent thoroughly explains, none of the reasons the government offers for “taking over J.D.’s decision completely and forcing her to continue an unwanted pregnancy” “remotely qualifies under the Constitution, . . . or even makes sense.” Millett Dissent at 4. Further discussion of the facts and the law can be found in Plaintiff’s brief filed in opposition to Appellants’ motion for a stay on October 19, 2017, Doc. 1700237, but Plaintiff makes five brief points here: First, as a threshold matter, the panel majority’s order notes, “the Government has assumed, for purposes of this case, that J.D. . . . possesses a
6

constitutional right to obtain an abortion in the United States.” Panel Order at 2. Indeed, as Judge Millett noted, “[t]he United States government, understandably, has deliberately and knowingly decided not to raise” an argument that J.D. lacks the constitutional right to have an abortion based on her immigration status. It is both forfeited and waived.” Millett Dissent at 8. Thus, J.D.’s immigration status has no bearing on her constitutional claims. If Defendants are allowed to block J.D.’s abortion access, they could do the same to citizens in government custody— a position that has already been rejected. See, e.g., Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 334 n.11 (3d Cir. 1987).
Second, as noted above, the majority’s order delays J.D.’s abortion for eleven days to give the government time to find J.D. an immigration sponsor. At the expiration of that time, J.D. will not be allowed to access abortion. Rather, J.D. is back at square one. She must go back to the district court seeking a new order requiring the government to release her to get the abortion. Even assuming that an order from the district court could be obtained quickly, the panel order expressly contemplates appeals, which Defendants most certainly will take. In other words, in approximately two weeks, the parties will be right back before this Court, and J.D.’s abortion will have been delayed for at least six weeks because of Defendants’ actions, coupled with the panel’s order that enables Defendants’
7

unconstitutional acts. Had Defendants complied with their constitutional obligations, J.D. would have obtained an abortion in the first-trimester of her pregnancy in September. Under the panel’s order, she will be pushed into November, pushing her closer to the point at which abortion is barred under Texas law. The Supreme Court has never countenanced government action that forces a woman to delay her abortion for anywhere approaching this length of time. See Whole Woman’s Health, 136 S. Ct. at 2318 (striking down abortion restriction that resulted in three week wait time for appointments).
Third, the panel’s eleven-day additional delay is extremely likely to be an exercise in futility that serves no purpose other than to keep J.D. pregnant longer. The government has been under a statutory obligation to attempt to find an appropriate sponsor for more than six weeks and thus far none has been found. 8 U.S.C. § 1232; 6 U.S.C. § 279; Millett Dissent at 7. Two potential sponsors were identified for J.D., but neither was approved. Cortez Decl. ¶ 6; Millett Dissent at 7; Oral Arg. at 5:04; 1:18:30. And at argument before the panel, the government did not assert that any additional potential sponsors are under consideration at this time. Oral Arg. at 4:30; 1:19:25. Moreover, it is wishful thinking to suggest that a sponsor will come to light and be approved within the Court’s eleven-day time frame. As an initial matter, as detailed in the Declaration of Robert Carey, former Director of (ORR), “ORR does not allow individuals without a prior relationship to
8

the minor and/or the minor’s family to act as a sponsor. In fact, ORR requires sponsors to provide documentary evidence of a prior relationship with the minor and/or the minor’s family in order to be approved.” Carey Decl. ¶ 15; see also id. ¶ 13 (explaining that the government does not maintain a list of individuals who stand ready to serve as sponsors for unaccompanied immigrant minors). This policy is “designed to keep minors safe from abuse and from trafficking and exploitation.” Id. ¶ 14. Moreover, as detailed in former-Director Carey’s declaration, even if an eligible potential willing sponsor were suddenly identified for J.D., the process of vetting and approving a sponsor is necessarily extensive and takes significant time, at minimum several weeks or months, not days. Id. ¶ 28.
Fourth, Defendants’ argument that their actions are permissible because they are simply choosing not to “facilitate” J.D.’s abortion is belied by both the facts and the law. As Judge Millett recognized, “there is nothing for [the government] to facilitate” in J.D.’s case. Millett Dissent at 4. J.D.’s court-appointed guardian and representative stand ready to take her to the health center; the health center is ready to see her; and private funds would pay for the abortion. All the government has to do is to allow J.D. to leave the facility with her court-appointed
9

representatives or allow the shelter to transport her. 2 The government’s actions are not a refusal to facilitate; they are physical obstruction.3 Moreover, as Judge
Millett pointed out, “the government’s insistence that it must not even stand back
and permit an abortion to go forward for someone in some form of custody is
freakishly erratic,” as the government affirmatively facilitates the process for
women (just a few months older than J.D.) in ICE detention and in the custody of the Bureau of Prisons.4 Millett Dissent at 5.
Defendants rely on cases permitting the government to cover services related
to childbirth, but not abortion, in the Medicaid program, see Maher v. Roe, 432
U.S. 464, 475 (1977); Harris v. McRae, 448 U.S. 297, 314 (1980), but these cases
demonstrate how far out of bounds the government’s position is. The Maher Court
stressed that its holding “signals no retreat from Roe” and distinguished between
2 While Defendants have a legal obligation to transport unaccompanied immigrant minors seeking abortions to their appointments, the Temporary Restraining Order does not even require them to do so. Rather, it permits Defendants to allow J.D.’s guardian or attorney ad litem to transport her to the abortion provider. Chutkan Order ¶ 1. 3 “No risk of flight or danger to the community has even been whispered in this case.” Millett Dissent at 4. 4 See ICE Guidelines, Detention Standard 4.4, Medical Care (if an ICE detainee requests abortion, ICE “shall arrange for transportation at no cost” to the detainee), 307, available at https://www.ice.gov/doclib/detentionstandards/2011/medical_care_women.pdf.; 28 C.F.R. § 551.23(c) (a federal inmate may decide whether to have an abortion, and if she does, “the Clinical Director shall arrange for an abortion to take place”).
10

“direct [] state interference with a protected activity and state encouragement of an alternative activity.” 432 U.S. at 475; id. at 476; see also Harris, 448 U.S. at 314 (upholding restriction on Medicaid coverage of abortion because it “places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion”) (internal quotation marks and citation omitted). Here, Defendants’ actions constitute precisely the type of “direct interference with protected activity” that the Constitution forbids. Id. 315. Indeed, as Judge Millett explained, “[t]he government’s refusal to release J.D. from custody is not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.’s right to make her own reproductive choice.” Millett Dissent at 4.
Finally, Defendants have argued that their actions are permissible because J.D. could voluntarily depart. But, as Judge Millett notes, this argument is deeply flawed, because the government cannot penalize J.D.’s constitutional right to abortion by forcing her to give up her immigration defenses — or her due process rights to assert them — and agree to be voluntarily deported. Millett Dissent at 56; see also Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) (holding that that states could not penalize pregnant public school teachers by forcing them to either take maternity leave when they reached fifth month of pregnancy or face dismissal); Shapiro v. Thompson, 394 U.S. 618 (1969) (striking down state statutes that conditioned welfare benefits on a one-year residency
11

requirement, holding that the statutes violated the right to travel). Indeed, as detailed in the declaration of J.D.’s state-appointed attorney ad litem, J.D. has a substantial claim for special immigrant juvenile status, a status that can eventually lead to becoming a legal permanent resident, based on the abuse she has suffered at the hands of her parents and the danger she faces if she returns home. See Cortez Decl. ¶¶ 8-12; Millett Dissent at 6, 9; see 8 U.S.C. § 1255(a), (h); 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11. And, in fact, J.D.’s attorney ad litem has already begun the process of attempting to secure this status for her. Cortez Decl. ¶¶ 13-14. In any event, as the panel recognized, J.D. has a constitutional right to abortion. The government cannot shirk its constitutional obligation by forcing J.D. to return to her home country. Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) (holding that Missouri could not abdicate its constitutional obligation to refrain from discriminating in admissions to a public law school by pointing to schools with open admissions in other states). II. THIS CASE RAISES QUESTIONS OF EXCEPTIONAL
IMPORTANCE This panel’s opinion allows the federal government to continue to hold J.D. hostage to prevent her from obtaining an abortion. As Judge Millett noted, the panel’s opinion “sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.” Millett Dissent at 2. A young woman who has fled her home country alone, after suffering abuse at the hands of
12

her parents, is now being held captive to prevent her from having an abortion. As discussed supra, each week of delay has increased the risks to J.D.’s health, and caused emotional strain. “J.D. retains her basic rights to personhood.” Id. at 9. But the government’s actions, and the panel’s order, are robbing her of those rights.
These rights could not be more important in terms of the future course of J.D.’s life or the constitutional interest at stake. As the Court recognized in Casey, the Constitution protects “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Casey, 505 U.S. at 851 (citations and internal quotation marks omitted). Moreover, “[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Id. This prospect that J.D. will be forced to carry her unwanted pregnancy to term against her will — a prospect made much more likely by the panel’s order — demands this Court’s attention, lest the promise of Roe “become[] a solemn mockery.” Cooper v. Aaron, 358 U.S. 1, 18 (1958) (citations and internal quotation marks omitted).
CONCLUSION
13

For the foregoing reasons, this Court should grant rehearing en banc on an emergency basis, vacate the panel’s order, and deny Defendants’ emergency motion for a stay of the temporary restraining order entered by the district court.

Date: October 22, 2017

Respectfully submitted,
s/Arthur B. Spitzer Arthur B. Spitzer Scott Michelman American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri Meagan Burrows Jennifer Dalven American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org
Daniel Mach American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330
14

dmach@aclu.org Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Attorneys for Plaintiff-Appellee
15

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Petition complies with the type-volume limitation of Fed. R. App. P. 35 because it has been prepared in proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font and it contains 3, 207 words, that being less than the 3,900 words allowed by Rule 35(b)(2)(A). Date: October 22, 2017
/s/ Arthur B. Spitzer Arthur B. Spitzer
16

CERTIFICATE OF SERVICE I hereby certify that on October 22, 2017, I served the foregoing Emergency Petition for Rehearing En Banc to Vacate the Panel’s Order and Deny DefendantsAppellants’ Motion for An Emergency Stay upon counsel for the DefendantsAppellants via this Court’s CM/ECF system, and also by e-mail addressed to Benjamin Schultz and Catherine Dorsey at Benjamin.Shultz@usdoj.gov and Catherine.Dorsey@usdoj.gov, respectively. Date: October 22, 2017
/s/ Arthur B. Spitzer Arthur B. Spitzer
17

PETITION APPENDIX: COPY OF PANEL OPINION Garza v. Hargan et. al.,
No. 17-5236 (D.C. Cir. Oct. 20, 2017)

USCA Case #17-5236 Document #1700704

Filed: 10/20/2017 Page 1 of 2

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236

September Term, 2017

Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,

1:17-cv-02122-TSC Filed On: October 20, 2017

Appellee

v.

Eric D. Hargan, Acting Secretary, Health and Human Services, et al.,

Appellants

BEFORE: Henderson,* Kavanaugh, and Millett,** Circuit Judges
O R D E R
Upon consideration of the emergency motion for stay pending appeal, the opposition, the supplement thereto, and the reply; the brief of amici curiae; the administrative stay entered on October 19, 2017; and the oral argument of the parties, it is
ORDERED that the administrative stay be dissolved. It is
FURTHER ORDERED that the District Court=s temporary restraining order entered on October 18, 2017, be vacated as to paragraphs 1 and 2 of the order and that the case be remanded to the District Court.1
The Government argues that, pursuant to standard HHS policy, a sponsor may be secured for a minor unlawful immigrant in HHS custody, including for a minor who is seeking an abortion. The Government argues that this process B by which a minor is released from HHS custody to a sponsor B does not unduly burden the minor=s right under Supreme Court precedent to an abortion. We agree, so long as the process of securing a sponsor to whom the minor is released occurs expeditiously. Cf. Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992); Ohio v. Akron Center for Reproductive
1 As both parties agree, we have jurisdiction over this appeal because the District Court’s temporary restraining order was more akin to preliminary injunctive relief and is therefore appealable under 28 U.S.C. § 1292(a)(1). See Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974).

USCA Case #17-5236 Document #1700704

Filed: 10/20/2017 Page 2 of 2

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236

September Term, 2017

Health, 497 U.S. 502, 513 (1990). The District Court is directed to allow HHS until Tuesday, October 31, 2017, at 5:00 p.m. Eastern Time for a sponsor to be secured for J.D. and for J.D. to be released to the sponsor. If a sponsor is secured and J.D. is released from HHS custody to the sponsor, HHS agrees that J.D. then will be lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law. If a sponsor is not secured and J.D. is not released to the sponsor by that time, the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the Government or J.D. may, if they choose, immediately appeal. We note that the Government has assumed, for purposes of this case, that J.D. B an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States B possesses a constitutional right to obtain an abortion in the United States. It is
FURTHER ORDERED that the emergency motion for stay pending appeal be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to issue the mandate forthwith to the District Court.

Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Robert J. Cavello Deputy Clerk
*Although Circuit Judge Henderson concurs in this order, her reasoning therefor will follow in a separate statement to be filed within five days of the date of this order.
**Circuit Judge Millett would deny the emergency motion for stay. A statement by Judge Millett, dissenting from the disposition of this case, will issue shortly.

2

PETITION APPENDIX: COPY OF MILLETT, J. DISSENT Garza v. Hargan et. al.,
No. 17-5236 (D.C. Cir. Oct. 20, 2017)

USCA Case #17-5236 Document #1700712

Filed: 10/20/2017 Page 1 of 10

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236
Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,

September Term, 2017
1:17-cv-02122-TSC Filed On: October 20, 2017

Appellee

v.

Eric D. Hargan, Acting Secretary, Health and Human Services, et al.,

Appellants

O R D E R

It is ORDERED, on the court’s own motion, that the Clerk issue the attached statement of Circuit Judge Millett, dissenting from the disposition of this case.

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Amy Yacisin Deputy Clerk

USCA Case #17-5236 Document #1700712

Filed: 10/20/2017 Page 2 of 10

MILLET, Circuit Judge, dissenting from the disposition of the case.
There are no winners in cases like these. But there sure are losers. As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.
To escape terrible physical abuse in her family, a seventeen-year-old girl known here as J.D. fled her home country and all she has ever known, and all alone undertook a life-imperiling trek for hundreds, perhaps thousands, of miles seeking safety. Unaccompanied minor migrants are among the most vulnerable persons in the world. J.D.’s journey exposed her to a tragically high risk of physical abuse, rape, and sexual exploitation at the hands of other migrants, smugglers, and governmental officials in every country whose territory she crossed.1
After entering the United States, she was detained by federal immigration officials and, at that time, learned that she is pregnant. Alone, resourceless, and facing a perilous future, J.D. was appointed a guardian ad litem and, in compliance with Texas law, obtained a state court order determining that she was (and is) mature enough to decide for herself whether to continue the pregnancy. J.D. has also gone through the mandatory counseling required by Texas law and has reconfirmed her decision. Indeed, the United States does not dispute that J.D. is mature enough to determine her own best interests, nor has it identified any reason that it is not in her best interests to exercise the choice she made, other than a federal agency’s own opposition to abortion. The federal government further represents that it would trust her judgment, if only she had chosen to continue the pregnancy. But J.D. chose not to continue her pregnancy.
The United States has for weeks now refused to release J.D. into the custody of her guardian ad litem to obtain the abortion. It is undisputed that J.D.’s guardian and attorneys—not the federal government—will transport her and bear the costs of
1 See generally UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, WOMEN ON THE RUN (2015), http://www.unhcr.org/5630f24c6.html; UNICEF, HUMAN TRAFFICKING FOR SEXUAL EXPLOITATION PURPOSES IN GUATEMALA (2016), http://www.cicig.org/uploads/documents/2016/Trata_Ing_978_9929_40_829_6.pdf.
2

USCA Case #17-5236 Document #1700712

Filed: 10/20/2017 Page 3 of 10

the abortion procedure. The logistics and paperwork of transferring her to the custody of her guardian ad litem will all be handled by a government contractor that is fully willing to do so. TRO Hr’g Tr. at 4:3–5. It will not be done directly by any federal governmental official. And J.D.’s post-procedure medical care will be administered by the contractor, not by government officials themselves. The Department of Health and Human Services’ only task is to refrain from barring its contractor from allowing J.D. to receive the medical care.
The government does not dispute—in fact, it has knowingly and deliberately chosen not to challenge—J.D.’s constitutional right to an abortion. The government instead says that it can have its contractor keep J.D. in what the government calls “close” custody—that is, more restrictive conditions than the contractor imposes on the non-pregnant minors in its care—because of the agency’s own supervening judgment that it would be in J.D.’s best interests to carry the pregnancy to term. If she wants an abortion, the government continues, she must surrender all legal claims to remain in the United States and return to the country of her abuse.
That is wrong and that is unconstitutional.
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which was reaffirmed just last year in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), should decide this case. In Casey, the Court held that a “woman’s right to terminate her pregnancy before viability” is “a rule of law and a component of liberty we cannot renounce.” 505 U.S. at 871. “[I]t follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy” at the pre-viability stage. Id. at 869. That liberty is necessary, the Court added, to protect “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” and “central to the liberty protected” by the Due Process Clause. Id. at 851. The Constitution’s guarantee of due process thus protects that right for “any person,” U.S. CONST. Amend. V, against undue governmental interference. While the government can have its own interest in promoting the continuation of pregnancy and potential life, prior to viability the government may not place a “substantial obstacle” in the way of a woman’s right to decide for herself to discontinue a pregnancy. Whole Woman’s Health, 136 S. Ct. at 2309. Setting up substantial barriers to the woman’s choice violates the Constitution. That is settled, binding Supreme Court precedent.
What is forcing J.D. to carry on this pregnancy is not J.D.’s choice. It is not Texas law. It is the federal government’s refusal to allow an abortion to go forward.
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The government’s refusal to release J.D. from custody is not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.’s right to make her own reproductive choice.
What reason does the federal government offer for taking over J.D.’s decision completely and forcing her to continue an unwanted pregnancy that Texas law permits her to terminate? None that remotely qualifies under the Constitution, or that even makes sense.
First, the government says it does not want to “facilitate” the abortion. But there is nothing for it to facilitate. As noted, J.D. will be transported to the medical procedure by her guardian ad litem. Any expense will be fully born by her guardian and attorneys. All paperwork and medical care will be done by a government contractor. And, as government counsel conceded at oral argument, the court order under review made it unnecessary for the Department of Health and Human Services to decide for itself whether the procedure is in J.D.’s best interests from a federal government perspective.
For those reasons, the government’s reliance on cases recognizing the government’s ability to prefer that pregnancies be taken to term, to provide information about its views, and to require informed consent through processes that do not unduly burden the woman’s choice are of no help. See, e.g., Harris v. McRae, 448 U.S. 297 (1980). The government identifies no case that says the government has a right to flatly prohibit an abortion—to override the woman’s choice—by virtue of keeping her in custody. And to be clear, it is a custody from which the government would willingly release her to attend doctor appointments if she were to continue her pregnancy. (No risk of flight or danger to the community has even been whispered in this case.) So what the government really claims here is not a right to avoid subsidizing the abortion decision; it claims a right to use immigration custody to nullify J.D.’s constitutional right to reproductive autonomy prior to viability.
Second, custody does not empower the government to completely override a woman’s informed and volitional decision to have an abortion. See Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) (striking as unconstitutional a prohibition on abortion for prisoners with exceptions only for express approval and where necessary for the health of the mother); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) (striking as unconstitutional a policy requiring prisoners to obtain a court ordered release on their own recognizance in order to receive an abortion).

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What is more, the government’s insistence that it must not even stand back and permit an abortion to go forward for someone in some form of custody is freakishly erratic. The government admits that, if J.D. were an adult, she would be held in the custody of Immigration and Customs Enforcement (ICE). That means that the government permits women just a few months older than J.D. who are in ICE custody to obtain an abortion.2 Likewise, it facilitates the process so that women in the custody of the Bureau of Prisons can obtain abortions. 28 C.F.R. § 551.23.
So why is J.D.’s case any different? The government says that, because she is a minor, an official in the Department of Health and Human Services must independently agree that an abortion is in J.D.’s best interests. And this Administration refuses to so agree. Without any explanation other than its opposition to abortion. In so doing, the federal government distrusts the State of Texas, which has conducted a hearing pursuant to state law and authorized J.D. to make the decision herself and to decide whether continuing or terminating the pregnancy is in her own best interest in this respect. J.D. may make that decision without the consent of her “parent, managing conservator or guardian.” Texas Family Code § 33.003(i-3). Notwithstanding the States’ constitutional primacy in matters of domestic relations, e.g., Mansell v. Mansell, 490 U.S. 581, 587 (1989), the United States argues that a federal government official in Washington, D.C. is better positioned and has more authority under the Constitution to prevent an abortion than not only the State, but also the woman and any parent or husband or father of the child. At least, until the woman turns 18. No judicial bypass exists for that federal official’s decision. That is an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage.
Third, the government says that J.D. is free to get an abortion as long as she agrees to voluntarily depart the United States. But the government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights. The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution. The Statue of Liberty’s promise to those “homeless” “yearning to breathe free” is not a lie.

2 ICE Guidelines, Detention Standard 4.4, Medical Care, available at https://www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf.
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Federal law, for example, expressly permits juvenile immigrants to seek “special immigrant juvenile status” by showing that they are (i) under 21 years of age, (ii) unmarried, and (iii) dependent juveniles “as a result of abuse, abandonment, or neglect.” Yeoboah v. United States Dep’t of Justice, 345 F.3d 216, 221-222 (3d Cir. 2003); see 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11.
Needless to say, conditioning a woman’s exercise of her fundamental right to reproductive choice, see Casey, supra, on the surrender of other legal rights is at the least a substantial obstacle to the exercise of her constitutional right. And by the way, this is a Hobson’s Choice that the federal government demands only of female immigrants.
The majority here accepts none of those arguments by the government. Instead, the court orders J.D. to continue her pregnancy for weeks. Not because she has failed to follow required State processes. She has met every requirement. And not because the majority agrees that the federal government can exercise an unbypassable veto over the reproductive decision of a minor in its custody. The only reason given is an interest in further pursuing the availability of finding a sponsor for J.D.
That too is forbidden by Supreme Court precedent. The desire to find a sponsor for J.D. to release her from detention is understandable. Children are presumably better off with family members or responsible adults than in the custody of a government contractor. But finding a sponsor and allowing her to terminate the pregnancy are not mutually exclusive. Both can proceed simultaneously. So the desire to pursue that process has nothing to do with and is not a reason for forcing J.D. to continue the pregnancy.
Perhaps the majority wants another adult to be involved in J.D.’s reproductive decision. But J.D. has already made that choice with a guardian ad litem by her side, and after all the consent processes demanded by Texas law. To force her to continue the pregnancy just in case someone else comes along with whom J.D. might also consult is to impose layers and layers of consent-style barriers to J.D.’s choice, contrary to settled Supreme Court precedent. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976); Bellotti v. Baird, 443 U.S. 622, 640–642 (1972) (striking statute requiring minor to obtain the consent of both parents prior to an abortion as unduly burdensome). Even a parent or husband does not have the power that federal government officials now claim to wield. See id.
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By the way, that distrust of whether J.D. has made an informed-enough-forthe-federal-government decision is a one-way street. It applies only to the decision to end the pregnancy. Had she chosen to continue the pregnancy, that judgment would have been fully respected and supported by the federal government without any further proceedings. If J.D. is mature enough to decide to continue the pregnancy, then she is mature enough to decide not to continue it as well (as Texas law agrees).
Nor is there any factual basis to think that remand will accomplish anything but a forced continuation of the pregnancy. After at least six weeks of trying, no sponsor has been found. Two were identified, but neither passed muster under Health and Human Services’ review. (We are not told why, and counsel for the government could not say whether the sponsors’ willingness to support J.D.’s abortion decision played a role in those decisions.) And even if a sponsor suddenly appears, that sponsor cannot override J.D.’s choice given that the judicial bypass order makes the consent of a guardian or custodian unnecessary.
This sponsorship process, moreover, is entirely in the control of the Department of Health and Human Services. J.D. cannot control the timing of the decision, nor is there any apparent procedure for challenging a decision or a delayed non-decision. Nor is there any reason to think that a sponsor can be found in short order. If the federal government knew of a sponsor, it would have come forward with that already. The government does not maintain an active list of potential sponsors, and even if one were identified, there is an understandably rigorous vetting process before a child will be handed into the custody of a third party, which includes (i) interviewing prospective sponsors; (ii) sponsors’ completion of extensive paperwork; (iii) a thorough background check, fingerprint check, immigration Central Index System check; (iv) home visits where necessary; and (v) conducting an assessment of the child’s relationships to non-related prospective sponsors.3 The federal government could not tell the court how long that process would take, even assuming a responsible sponsor would suddenly be found.
And in this context, timing profoundly matters. Every day that goes by is another day that the federal government forces J.D. to carry an unwanted pregnancy forward. Days also increase the health risks associated with an abortion procedure. See, e.g., Williams v. Zbaraz, 442 U.S. 1309, 1314–1315 (1979) (Stevens, J., sitting as Circuit
3 https://www.acf.hhs.gov/orr/about/ucs/sponsors.
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Justice) (evidence of an increased risk of “maternal morbidity and mortality” supports a claim of irreparable injury); Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion—Related Mortality in the United States, 103:4 OBSTETRICS & GYNECOLOGY 729 (April 2004) (relative risk from abortion increases 38% each gestational week). In addition, if J.D. is 17 or 18 weeks along by the time this issue is resolved, the doctors at the South Texas clinic nearest to her (assuming it still has availability) will likely no longer be willing to perform the procedure. That will force J.D. to travel hundreds of miles to the next closest medical provider in North Texas. She will be forced to endure this journey twice, once to repeat a counseling session she has already received and again for the procedure itself.
The sponsorship remand, in short, stands as an immovable barrier to J.D.’s exercise of her constitutional right that inflicts irreparable injury without any justification offered for why the government can force her to continue the pregnancy until near the cusp of viability.
Lastly, the amici suggest that J.D. and all others in the United States without documentation are not “persons” entitled to the protections of the Due Process Clause. The United States government, understandably, has deliberately and knowingly decided not to raise that argument. It is both forfeited and waived. See Wood v. Milyard, 132 S. Ct. 1826, 1832 n.4 (2012); Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004).
Basic principles of constitutional avoidance and circuit precedent direct us not to decide far-reaching constitutional questions that the parties have deliberately and knowingly chosen not to raise. Indeed, we have held that “[t]he grounds for recognizing the forfeiture of arguments are especially strong where the alleged error is constitutional.” Board of County Comm’rs v. Federal Housing Fin. Agency, 754 F.3d 1025, 1031 (D.C. Cir. 2014) (holding that the need for constitutional avoidance is particularly acute where a party’s forfeiture makes deciding the constitutional question neither “necessary nor even advisable”); see Camreta v. Greene, 563 U.S. 692, 705 (2011) (A “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”) (internal quotation marks and citations omitted); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–347 (1936) (Brandeis, J., concurring); Colm v. Vance, 567 F.2d 1125, 1132 n.11 (D.C. Cir. 1977) (concluding that constitutional “avoidance is especially preferred where the nature of the constitutional issue poses a difficult decision with significant ramifications”).
There are few constitutional questions more far-reaching than the proposition that individuals in the United States without legal documentation do not even qualify
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as “persons” under the Constitution. The Supreme Court has long recognized that immigrants who lack lawful status are protected persons under the Due Process Clause. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (even aliens whose “presence in this country is unlawful, involuntary, or transitory [are] entitled to th[e] constitutional protection” of Fifth and Fourteenth Amendment due process); Jean v. Nelson, 472 U.S. 846, 875 (1985) (regardless of immigration status, aliens within the territorial jurisdiction of the United States are “persons” entitled to due process under the Constitution); cf. Plyler v. Doe, 457 U.S. 202, 210 (1982) (children of persons here unlawfully are protected “persons” under the Equal Protection Clause of the Fourteenth Amendment).
The implications of amici’s argument that J.D. is not a “person” in the eyes of our Constitution is also deeply troubling. If true, then that would mean she and everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction). They could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term. Even if pregnancy would kill the Mother, the Constitution would turn a blind eye. Detainees would have no right to any medical treatment or protection from abuse by other detainees. Those with diabetes or suffering heart attacks could be left to die while their governmental custodian watches.
Fortunately, we need not confront that profoundly unsettling argument because no party has raised or briefed it and, as noted, the government has expressly disavowed advancing it. In an emergency proceeding of this nature, we should be particularly hesitant to decide sweeping questions of constitutional law unnecessarily and without any briefing.
* * * * *
J.D. came to the United States without legal documentation. That is not disputed. But the government cannot make a forced pregnancy the sanction for that action. J.D. retains her basic rights to personhood. After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. When they,
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consistent with legal process, decide to continue their pregnancies, that decision should be supported. When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.
I accordingly dissent.

10

PETITION APPENDIX: DECLARATION OF ROBERT CAREY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,
Plaintiff, v. ERIC D. HARGAN, et al.,
Defendants.

) ) ) ) No. 17-cv-02122-TSC ) ) ) ) ) ) )

DECLARATION OF ROBERT CAREY

I, Robert Carey, declare as follows:

1.

I previously served as Director of the Office of Refugee Resettlement (ORR) in the

Department of Health and Human Services (DHHS) from March, 2015- January,

2017.

2.

As Director of ORR, I oversaw all of ORR’s programs, including the Unaccompanied

Immigrant Minor (“UC”) program.

3.

In my capacity as Director, I became deeply familiar with the ORR policies and

procedures for identifying, vetting and approving sponsors for UCs in the legal

custody of ORR, including how this process operates in practice. I had overall

responsibility for the operations of ORR, including review of policies and procedures.

4.

It is my understanding that Defendants in this case are arguing that their refusal to

release J.D. from the shelter to attend her abortion appointment is not an undue

burden on her choice because she may be quickly released into the care of a sponsor.

It is also my understanding that the Court of Appeals has given Defendants until

October 31, 2017, to identify an appropriate sponsor for J.D. and release her to that

sponsor’s custody.

5.

As set forth below, based on my knowledge of the sponsor identification and approval

process, my experience as ORR Director overseeing the UC program, and within it,

ORR federal field specialists responsible for granting and denying approval to release

UCs to sponsors, and my understanding of the facts of J.D.’s case, I do not think that

J.D. can be released within that short time period.

6.

The process for identifying, contacting, vetting and approving a qualified sponsor for

a UC like J.D. can take weeks or months. This process is also largely outside of the

control of the individual minor himself or herself.

7.

Indeed, ORR has developed detailed policies and procedures to ensure the safe

release of UCs to sponsors that have been thoroughly vetted and confirmed to be able

to provide for the physical and mental well-being of the UCs.

8.

These policies are publicly available on the ORR’s website. See ORR, Children

Entering the United States Unaccompanied: Section 2, Safe and Timely Release from

ORR Care, (hereinafter, “ORR Policies”), available at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-

unaccompanied-section-2. To my knowledge, and as indicated on the ORR website,

nearly all of the relevant policies referenced herein have not been formally revised

since I left my position as Director of ORR at the end of January, 2017.

9.

As the policies reflect, and as my experience has taught me, the entire process

involves many steps, including: “the identification of sponsors; the submission by a

sponsor of the application for release and supporting documentation; the evaluation of

the suitability of the sponsor, including verification of the sponsor’s identity and

2

relationship to the child, background checks, and in some cases home studies; and

planning for post-release.” See ORR Policies, Section 2.1.

10.

In certain cases, especially where the UC does not have parents or close relatives in

the U.S. available serve as sponsors, each one of these steps can take weeks.

11.

This is true of the very first step – the identification of potential sponsors. Once a UC

arrives in the U.S., is transferred into ORR’s care, and placed in a shelter, the minor’s

assigned case manager at the shelter collects the names of potential sponsors from the

minor and, if possible, the minor’s parents. See ORR Policies, Section 2. 2. 1. In the

event that the minor does not have contact information for family in the home

country, the case manager may work with the embassy of the minor’s country of

origin to obtain phone numbers and names of close relatives in the home country.

12.

The case manager then contacts the prospective sponsors to confirm whether they

would be willing to sponsor the UC. In some cases, the prospective sponsors are

unwilling to serve as a sponsor. There are multiple of reasons this. Often, the

prospective sponsor is low-income, and may already have children of his/her own, be

caring for elderly parents and/or be working multiple jobs to make ends meet. The

prospective sponsor therefore may not feel that they have the capacity to take in and

provide for another child. Also, some prospective sponsors are themselves

undocumented or have undocumented family members, and may fear immigration

enforcement proceedings and deportation if they come forward to take custody of the

minor.

13.

I understand that at oral argument the Court of Appeals asked whether there are lists

of people who stand at the ready to be a young person’s guardian, in the event that

3

neither the minor nor his/her parents are able to provide names and/or the prospective

sponsors provided are unwilling to be sponsors. No such list exists.

14.

I also understand that there is an email in which ORR Director Scott Lloyd stated that

he knows “a few good families” that could serve as sponsors for a minor to see her

through her pregnancy. To the extent these “good families” are not related to the

minor and do not have a prior relationship to the minor and/or the minor’s family,

releasing a minor into their custody would be contrary to ORR policy, which is

designed to keep minors safe from child abuse and from trafficking and exploitation.

15.

Indeed, ORR does not allow individuals without a prior relationship to the minor

and/or the minor’s family to act as a sponsor. In fact, ORR requires sponsors to

provide documentary evidence of a prior relationship with the minor and/or the

minor’s family in order to be approved. See ORR Policies, Section 2.2.4.

16.

Even once a willing potential sponsor has been identified, the process may still take

weeks, particularly for minors—like J.D.—who are not being considered for release

to a parent or close relative. Below I detail a few parts of the process, and the time

they take to complete.

17.

First, all potential sponsors are required to provide extensive documentary evidence,

ORR Policies, Section 2.2.4, which they may not have at all or which may be located

in another country and be difficult to access. For example, potential sponsors must

provide documentation of their identity and address as well as evidence verifying the

identity of all adults residing with the sponsor and all adult care givers identified in a

sponsor care plan. Id. This is not always easy for potential sponsors who have

limited resources.

4

18.

As noted above, potential sponsors are also required to provide “proof of sponsor-

child relationship.” ORR Policies, Section 2.2.4. This can be especially challenging.

For family members this means official documents like birth or marriage certificates

or court, hospital or school records. Non-family members must “submit evidence that

reliably and sufficiently demonstrates a bona fide social relationship with the child

and/or the child’s family that existed before the child migrated to the United States.”

Id.

19.

In many circumstances, obtaining these documents also requires obtaining documents

from a UC’s or sponsor’s home country. This can be quite difficult. Indeed, simply

communicating with the relevant people in the minor’s home country can be very

challenging. Many UC’s come from very poor and rural settings. Their families may

not have telephones, much less access to computers or fax machines.

20.

A second step in the process is the home study. ORR Policies, Section 2.4.2.

Although a home study is not mandatory in all cases, it would be standard practice to

require a home study in a case such as J.D.’s, where any prospective sponsor will not

be J.D.’s parent or close family relative and J.D. is pregnant.

21.

Because of the backlog of potential sponsors waiting for home visits, it may take

weeks to get one. Even if the process could be expedited, and an individual case

could be pushed to the top of the list of those waiting, scheduling and conducting the

home study will still take time. ORR contracts with grantee organizations to conduct

the home studies. Because many prospective sponsors are working multiple jobs,

scheduling the home visit can be time consuming. The ORR grantee organizations

that conduct the home studies have to coordinate a time to arrive at the home to

5

conduct the study with the prospective sponsor. Finding a window of time during

which the sponsor will be home and available for the study is often difficult,

particularly where the prospective sponsor is working multiple jobs.

22.

Even after the home study has been scheduled and completed, the home study grantee

must prepare a written report documenting their findings, and has 10 business days

from the receipt of the referral to submit this report. ORR Policies, Section 2.4.2.

After receiving the report, the case manager must evaluate the case. In the event the

home study reveals the potential sponsor to be unsuitable, the process may have to

start from square one, with the identification of a new potential sponsor.

23.

Even where the case manager recommends approval of the sponsor based on the

documentation submitted and the results of any home study that was completed, this

is not the end of the process—the recommendation must still go through multiple

levels of internal and external review, particularly in cases like J.D.’s.

24.

First, the case manager must submit this recommendation to his/her supervisor at the

shelter, who in turn will submit the recommendation to a reunification specialist at the

shelter. ORR Policies, Section 2.7. In the event the case manager’s superiors

disagree with or have questions about the recommendation, this internal review could

take time. Even if there is internal agreement within the shelter, the recommendation

for approval must still be submitted to an external ORR contractor for a quality

control check. This contractor reviews the recommendation and information

underlying it to ensure that the recommendation is supported by sufficient

information and that the shelter staff did not make any serious errors. In the event the

quality control contractor finds that requisite information is missing or an error has

6

been made, the application package may be transferred back to the shelter staff with

instructions for additional information gathering.

25.

Once the application and recommendation has passed through all the internal levels of

review and external quality control check, it is then presented to the ORR federal

field specialist (FFS) who oversees the shelter for review and approval. The FFS

must review all of the information in the package, and may also be required to wait

for the results of the requisite background checks on the sponsor, before issuing a

final decision approving or denying the application. In some cases, the FFS may send

a case back to the shelter, instructing the case manager to obtain and submit

additional information before the FFS makes a release decision. ORR Policies,

Section 2.7.

26.

For a minor like J.D., who is pregnant and whose sponsor would not be a parent, this

internal and external review and final approval process could take upwards of 6

weeks to complete.

27.

In the event the FFS approves the application, the shelter must then coordinate the

release of the UC to the approved sponsor. The sponsor is generally responsible for

raising the money for and booking any airfare or transit ticket required for the UC to

travel from the shelter to the sponsor’s home. Because many sponsors are low-

income, raising the money to purchase an airline ticket can be a time-consuming

process. Accordingly, even once the sponsor has been approved, just the release itself,

which may seem simple, can take several days to a week to complete.

28.

In sum, based on my experience and understanding of ORR policies, in the case of a

minor like J.D. – who is pregnant and who does not have a parent or close family

7

 
 Oral Argument On Emergency Motion To Stay Held October 20, 2017
17-5236
United States Court of Appeals for the District of Columbia Circuit
ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,
Plaintiff-Appellee,
v.
ERIC D. HARGAN, Acting Secretary, Health and Human Services; STEPHEN WAGNER, Acting Assistant Secretary, Administration for Children and Families; SCOTT LLOYD, Director, Office of Refugee Resettlement,
Defendant-Appellant.

On Appeal from the United States District Court for the District of Columbia

BRIEF FOR AMICI CURIAE STATES OF NEW YORK, CONNECTICUT, MASSACHUSETTS, OREGON, AND PENNSYLVANIA and THE DISTRICT OF COLUMBIA IN SUPPORT OF APPELLEE’S MOTION FOR REHEARING EN BANC

BARBARA D. UNDERWOOD Solicitor General
ANISHA S. DASGUPTA Deputy Solicitor General
ESTER MURDUKHAYEVA Assistant Solicitor General of Counsel

ERIC T. SCHNEIDERMAN Attorney General State of New York
120 Broadway, 25th Floor New York, NY 10271 (212) 416-6279
Dated: October 23, 2017

(Counsel listing coninues on inside front cover)

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES.......................................................................ii INTERESTS OF AMICI CURIAE ............................................................. 1 INTRODUCTION ....................................................................................... 2 ARGUMENT .............................................................................................. 6 POINT I
THE GOVERNMENT’S POLICY REQUIRING AN AGENCY DIRECTOR’S APPROVAL OF ALL ABORTIONS VIOLATES FEDERALISM PRINCIPLES ........ 6 POINT II THE GOVERNMENT’S POLICY BLOCKING DETAINED UNACCOMPANIED IMMIGRANT MINORS FROM OBTAINING ABORTIONS VIOLATES CLEARLY ESTABLISHED LAW ................................ 8 CONCLUSION ......................................................................................... 14
i

Cases

TABLE OF AUTHORITIES

Page

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ................................................................................ 7
* Bellotti v. Baird, 443 U.S. 622 (1979) .......................................................................... 9, 10
Lambert v. Wicklund, 520 U.S. 292 (1997) .............................................................................. 10
Lehr v. Robertson, 463 U.S. 248 (1983) ................................................................................ 7
* Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ...................................................................... 8, 9, 10
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ............................................................................ 8
Laws & Rules
Tex. Fam. Code § 33.003(h)...................................................................... 12
Texas Rules and Forms for a Judicial Bypass of the Parental Notice and Consent under Chapter 33 of the Family Code
Rule 1.4(a) ............................................................................................ 11 Rule 2.3(a-b) ......................................................................................... 11 Rule 2.5(f) ............................................................................................. 12 Rule 3.3................................................................................................. 12
Miscellaneous Authorities
Guttmacher Institute, An Overview of Minors’ Consent Law as of October 1, 2017, at https://www.guttmacher.org/state-policy/explore/overviewminors-consent-law ................................................................................ 6
_________________________________
*Authorities upon which we chiefly rely are marked with asterisks.

ii

INTERESTS OF AMICI CURIAE Amici curiae are the States of New York, Connecticut, Massachusetts, Oregon, and Pennsylvania, and the District of Columbia. Amici are committed to advancing their interest in the safety of all women seeking abortion services without creating unwarranted obstacles to women’s access to those services. Amici may have reached different conclusions regarding the precise balance that should be struck between maintaining the State’s interest in the health and welfare of minors and maintaining access to abortion services for those minors. But they share the goal of striking an appropriate balance between these fundamental concerns. Amici also have an interest in ensuring that courts afford the proper degree of deference to their legislative and judicial judgments regarding the best interests of minor children. It is well established that questions of family law, including determinations about the health and safety of minors, are within the province of state law. As a general matter, the States’ judgments regarding standards for protecting the best interests of minors should be accorded substantial deference. The same is true for States’ determinations regarding the ability of minors to make

independent decisions regarding their health and well-being in consultation with medical professionals. Permitting the federal government to unilaterally substitute its policy judgment for the determinations of state legislatures and courts—as well as for the independent decisionmaking of the minor residents of those States—undermines both federalism interests and individual constitutional rights.
INTRODUCTION This case involves the application of well-established legal principles to extraordinary facts. Rehearing is warranted because the panel’s decision irreparably harms movant J.D., a seventeen-year-old unaccompanied minor immigrant in federal custody, who is fifteen weeks pregnant and is seeking to exercise her constitutional right to obtain an abortion. A Texas state court judge has already determined that J.D. is capable of making the decision to terminate her pregnancy. And J.D. has reiterated that she wants an abortion, despite extensive efforts by the federal government to convince her to proceed with the pregnancy. Nevertheless, the federal government insists that it is entitled to supersede J.D.’s decision and the state court’s determination, and it refuses to permit J.D. to obtain a lawful abortion. The panel’s
2

determination that this policy is not an undue burden so long as J.D. can hypothetically be released to a sponsor by October 31, conflicts with basic principles of federalism and is incorrect as a matter of law.
The government admits that it has adopted a policy which requires defendant Scott Lloyd, the Director of the Office for Refugee Resettlement (ORR), an office within the Department of Health and Human Services (HHS), to personally review and approve all requests for medical abortions made by unaccompanied immigrant minors who are in United States custody and are residing in a federally funded shelter. (White Decl. ¶ 12 (District Court Dkt. No 10-1).) The Director has, in turn, adopted a policy that forbids a shelter from taking an unaccompanied minor to a doctor who will provide abortion services, and only authorizes a shelter to transfer an unaccompanied minor to a doctor who will provide “pregnancy services and life-affirming options counseling.” (Amiri Decl., Ex. C (Dist. Ct. Dkt. No. 3-7).) This new policy applies nationwide to all unaccompanied immigrant minors who are in the custody of the United States government, including minors who are in custody in the amici States.
3

The government concedes, at least for purposes of this litigation, that unaccompanied minor immigrants in United States custody have the constitutional right to obtain an abortion. (Panel Decision at 2; Oral Arg. at 17:35-18:50.) Nevertheless, the government insists that it can require those minors to obtain the consent of a federal agency director prior to receiving abortion services. (Gov’t Opp’n to Mot. for a Temporary Restraining Order (Dist. Ct. Dkt. No. 10) at 4.) The government further maintains that it can lawfully adopt a policy to withhold consent to all requests for abortion services, absent evidence of sexual abuse or medical necessity. (Oral Arg. at 20:14-20:29, 22:00-22:30.) Both propositions are false.
First, the United States cannot impose a federal agency-consent requirement that does not exist under state law without infringing upon the sovereignty of those States that have decided to trust the independent judgment of minors who wish to exercise their constitutional right to obtain an abortion. The government’s new policy also infringes upon the sovereignty of those States that impose parental consent and notification requirements and have adopted judicial bypass procedures by which a minor can obtain a state court determination that she is mature enough
4

to make the decision to obtain an abortion. The government’s policy undermines state court determinations made pursuant to those judicial bypass procedures by refusing to give them full faith and credit, and by imposing additional layers of consent not required by state law, as has happened in this case.
Second, the government’s policy of withholding its consent to all requests for abortions, except in instances of sexual abuse and medical necessity, constitutes an undue burden on the constitutional rights of unaccompanied immigrant minors, including the movant. The panel’s conclusion that the policy is not an undue burden “so long as the process of securing a sponsor to whom the minor is released occurs expeditiously” (Panel Decision at 1), incorrectly assumes that the availability of release to a hypothetical sponsor is equivalent to the expeditious judicial bypass procedures available in states that impose parental consent requirements. However, the government’s policies and regulations governing release to a suitable sponsor are markedly different from the judicial bypass procedures that are required in order for parental consent statutes to pass constitutional muster. Thus, the availability of release
5

to a hypothetical sponsor does not cure the undue burden created by the government’s new policy.
ARGUMENT POINT I
THE GOVERNMENT’S POLICY REQUIRING AN AGENCY DIRECTOR’S APPROVAL OF ALL ABORTIONS VIOLATES FEDERALISM PRINCIPLES More than a dozen States, including amici New York, Connecticut, Oregon, and the District of Columbia, do not require minors to notify their parents or to obtain parental consent prior to receiving abortion services. See Guttmacher Institute, An Overview of Minors’ Consent Law as of October 1, 2017.1 These states have concluded that minors are entitled to a broad range of confidential family planning services and reproductive care, including abortion services, without parental intervention. These States have further concluded that minors are sufficiently mature to make the decision to terminate a pregnancy following consultation with a doctor. The federal government, disregarding the traditional prerogatives of the States over family
1 https://www.guttmacher.org/state-policy/explore/overviewminors-consent-law
6

matters and the specific determinations that different states have made, has adopted a national policy requiring federal agency approval of all abortion requests made by unaccompanied minor immigrants, including unaccompanied minor immigrants residing in those States that do not otherwise impose consent or notification requirements.
This policy plainly violates federalism principles. It is well established that—as with all issues of domestic and family relations— the standards for determining the best interests of children are governed by state law. See Lehr v. Robertson, 463 U.S. 248, 256-57 (1983); see also Ankenbrandt v. Richards, 504 U.S. 689, 694-95 (1992). This case involves state law determinations about whether and when a minor can consent to medical services without the involvement of her parents, and whether certain medical procedures are in the best interests of a child. This is not a case in which state procedures are alleged to be in violation of any federal right—to the contrary, the state procedures here are consistent with decades of well-established federal requirements.
The government’s policy also undermines the bypass procedures implemented by those states that do require parental consent by refusing to give full faith and credit to the judicial determinations made as a result
7

of those procedures. Here, J.D. has obtained a judicial determination from a Texas state court that she is sufficiently mature to make an independent decision to terminate her pregnancy. The government’s insistence that it is entitled to disregard the state court determination and to substitute its own judgment as to whether an abortion is in J.D.’s best interests is an affront both to J.D.’s constitutional rights and to Texas’s sovereignty.
POINT II THE GOVERNMENT’S POLICY BLOCKING DETAINED UNACCOMPANIED IMMIGRANT MINORS FROM OBTAINING ABORTIONS VIOLATES CLEARLY ESTABLISHED LAW The undue burden standard, as set out by the Supreme Court in Casey and reaffirmed in Whole Women’s Health, provides that a government policy is unconstitutional if it “place[s] a substantial obstacle in the path of a woman seeking an abortion.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992) (joint opinion of O’Connor, Stevens, and Souter, JJ); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016). The Supreme Court has held that a State can impose a parental consent or notification requirement for minors who seek to obtain an abortion, but that such a requirement
8

could not permit an “absolute, and possibly arbitrary, veto” over the decision of a minor and her doctor to terminate a pregnancy. Bellotti v. Baird, 443 U.S. 622, 643 (1979).
Accordingly, the Supreme Court has required that any State imposing a parental consent or notification requirement must “provide an alternative procedure whereby authorization for the abortion can be obtained.” Id. To pass constitutional muster, the bypass procedure must allow a pregnant minor to demonstrate either “(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes” or “(2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.” Id. at 643-44; see also Casey, 505 U.S. at 899. Further, the proceeding must ensure “anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Bellotti, 443 U.S. at 644.
The panel’s determination that the government’s policy does not unduly burden J.D.’s constitutional right to an abortion is based on the erroneous conclusion that the availability of hypothetical sponsors is akin to the bypass procedures contemplated by Bellotti and approved in Casey.
9

(Panel Decision at 1; Oral Arg. at 51:05-52:20.) It is not. As an initial matter, judicial bypass procedures are constitutional because they are available to all minors. See Casey, 505 U.S. at 899; Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (per curiam). By contrast, an unaccompanied minor immigrant may not have any sponsors to whom she could be released, because, as the movant explains in her petition (Pet. at 9-10; see also Carey Decl. ¶ 15), ORR does not generally allow individuals without a prior relationship to the minor or to the minor’s family to act as a sponsor. While all minors seeking to avail themselves of the judicial bypass procedure may file an application with the appropriate state court, many unaccompanied minor immigrants will not even be able to identify a potential sponsor to whom they could be released.
Moreover, the bypass procedures were instituted in order to prevent parents from exercising an “absolute” and “arbitrary” veto over a minor’s decision to terminate her pregnancy. Bellotti, 443 U.S. at 643. Accordingly, a bypass application requires an independent determination about the maturity of a minor, or in the alternative, about the best interests of that minor. But here, the agency that refuses to permit a minor to obtain an abortion is the very same agency that reviews and
10

approves release to a hypothetical sponsor. Thus, the sponsorship procedure may itself allow another opportunity for the agency to exercise an absolute and arbitrary veto over a minor’s independent decision.
Finally, although judicial bypass procedures are varied, they all provide procedural protections to minors that have no analogue under the sponsorship release procedures. For example, Texas law (with which J.D. has already fully complied) requires all cases to be filed confidentially, and forbids any court officer from disclosing to anyone that the minor is or has ever been pregnant or that she ever wanted an abortion. Rules and Forms for a Judicial Bypass of the Parental Notice and Consent under Chapter 33 of the Family Code (Rule) 1.4(a). Here, the government has pointed to no regulation or guideline that would forbid such disclosure to potential sponsors, or that would forbid the government from asking potential sponsors about their views on the minor’s request for an abortion. Texas also requires the court to appoint a guardian ad litem and an attorney ad litem to represent the minor at a hearing. Rule 2.3(a-b). Here, the government has not identified any regulation or guideline that would provide equivalent representation to a minor in the course of the sponsorship approval process.
11

Most importantly, Texas requires the court to rule on a bypass application “as soon as possible” and “immediately after the hearing,” Rule 2.5(f), or at a minimum, by 5:00pm on the fifth day after the application was filed, see Tex. Fam. Code § 33.003(h). This timeliness requirement is necessary to comply with Bellotti’s “expeditiousness” standard, but also takes into account the time-sensitive nature of bypass applications. Moreover, the minor has the right to an expeditious appeal if her application is denied. Rule 3.3. Here, the government has not identified any regulation or guideline that requires release to a sponsor within a certain time frame. Nor has the government identified a regulation or guideline that permits an unaccompanied minor to challenge the denial of a particular sponsor. And critically, the government has not identified any time frame after which it must cease blocking a minor’s access to abortion services. To the contrary, the government maintains (Response to Pet. at 8-9) that its policy is constitutional even if a sponsor is not identified, because J.D. can
12

voluntarily depart the country.2 Thus, even the government does not believe that the sponsorship process is equivalent to judicial bypass.
2 Amici agree with the arguments raised by movant in her petition, as well as by Judge Millett’s dissent, as to why the availability of voluntary departure does not remedy the undue burden caused by the government’s policy.
13

CONCLUSION The petition for rehearing en banc should be granted, the panel’s
order should be vacated, and Defendants’ emergency motion for a stay of
the temporary restraining order entered by the district court should be
denied.
Dated: New York, NY October 23, 2017
Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General State of New York

BARBARA D. UNDERWOOD Solicitor General
ANISHA S. DASGUPTA Deputy Solicitor General
ESTER MURDUKHAYEVA Assistant Solicitor General
of Counsel

By: . /s/ Barbara D. Underwood . BARBARA D. UNDERWOOD Solicitor General
120 Broadway, 25th Floor New York, NY 10271 (212) 416-8020

(Counsel listing continues on next page.)

14

GEORGE JEPSON
Attorney General State of Connecticut
55 Elm Street Hartford, CT 06106

JOSH SHAPIRO
Attorney General Commonwealth of
Pennsylvania 16th Fl., Strawberry Sq.
Harrisburg, PA 17120

MAURA HEALEY Attorney General
Commonwealth of Massachusetts One Ashburton Place
Boston, MA 02108

KARL A. RACINE Attorney General
District of Columbia One Judiciary Sq.
441 4th St., N.W. Washington, DC 20001

ELLEN F. ROSENBLUM
Attorney General State of Oregon
1162 Court St. N.E. Salem, OR 97301

15

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 27 of the Federal Rules of Appellate Procedure, Barbara D. Underwood, an employee in the Office of the Attorney General of the State of New York, hereby certifies that according to the word count feature of the word processing program used to prepare this brief, the brief contains 2,361 words and complies with the type-volume limitations of Rule 27(d).
. /s Barbara D. Underwood . Barbara D. Underwood

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the accompanying Brief for Amici Curiae by using the CM/ECF system on October 23, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: October 23, 2017
New York, NY
. /s/ Barbara D. Underwood .

 
 Oral Argument On Emergency Motion To Stay Held October 20, 2017
17-5236
United States Court of Appeals for the District of Columbia Circuit
ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,
Plaintiff-Appellee,
v.
ERIC D. HARGAN, Acting Secretary, Health and Human Services; STEPHEN WAGNER, Acting Assistant Secretary, Administration for Children and Families; SCOTT LLOYD, Director, Office of Refugee Resettlement,
Defendants-Appellants.

On Appeal from the United States District Court for the District of Columbia

CORRECTED BRIEF FOR AMICI CURIAE STATES OF NEW YORK,
CALIFORNIA, CONNECTICUT, DELAWARE, HAWAI‘I, ILLINOIS, IOWA, MAINE, MASSACHUSETTS, OREGON, PENNSYLVANIA,
VERMONT, and WASHINGTON, and the DISTRICT OF COLUMBIA IN SUPPORT OF APPELLEE’S MOTION FOR REHEARING EN BANC

BARBARA D. UNDERWOOD Solicitor General
ANISHA S. DASGUPTA Deputy Solicitor General
ESTER MURDUKHAYEVA Assistant Solicitor General of Counsel

ERIC T. SCHNEIDERMAN Attorney General State of New York
120 Broadway, 25th Floor New York, NY 10271 (212) 416-6279
Dated: October 24, 2017

(Counsel listing coninues on inside front cover)

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES.......................................................................ii INTERESTS OF AMICI CURIAE ............................................................. 1 INTRODUCTION ....................................................................................... 2 ARGUMENT .............................................................................................. 6 POINT I
THE GOVERNMENT’S POLICY REQUIRING AN AGENCY DIRECTOR’S APPROVAL OF ALL ABORTIONS VIOLATES FEDERALISM PRINCIPLES ........ 6 POINT II THE GOVERNMENT’S POLICY BLOCKING DETAINED UNACCOMPANIED IMMIGRANT MINORS FROM OBTAINING ABORTIONS VIOLATES CLEARLY ESTABLISHED LAW ................................ 8 CONCLUSION ......................................................................................... 14
i

Cases

TABLE OF AUTHORITIES

Page

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ................................................................................ 7
* Bellotti v. Baird, 443 U.S. 622 (1979) .......................................................................... 9, 10
Lambert v. Wicklund, 520 U.S. 292 (1997) .............................................................................. 10
Lehr v. Robertson, 463 U.S. 248 (1983) ................................................................................ 7
* Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ...................................................................... 8, 9, 10
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ............................................................................ 8
Laws & Rules
Tex. Fam. Code § 33.003(h)...................................................................... 12
Texas Rules and Forms for a Judicial Bypass of the Parental Notice and Consent under Chapter 33 of the Family Code
Rule 1.4(a) ............................................................................................ 11 Rule 2.3(a-b) ......................................................................................... 11 Rule 2.5(f) ............................................................................................. 12 Rule 3.3................................................................................................. 12
Miscellaneous Authorities
Guttmacher Institute, An Overview of Minors’ Consent Law as of October 1, 2017, at https://www.guttmacher.org/state-policy/explore/overviewminors-consent-law ................................................................................ 6
_________________________________
*Authorities upon which we chiefly rely are marked with asterisks.

ii

INTERESTS OF AMICI CURIAE Amici curiae are the States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington, and the District of Columbia. Amici are committed to advancing their interest in the safety of all women seeking abortion services without creating unwarranted obstacles to women’s access to those services. Amici may have reached different conclusions regarding the precise balance that should be struck between maintaining the State’s interest in the health and welfare of minors and maintaining access to abortion services for those minors. But they share the goal of striking an appropriate balance between these fundamental concerns. Amici also have an interest in ensuring that courts afford the proper degree of deference to their legislative and judicial judgments regarding the best interests of minor children. It is well established that questions of family law, including determinations about the health and safety of minors, are within the province of state law. As a general matter, the States’ judgments regarding standards for protecting the best interests of minors should be accorded substantial deference. The same

is true for States’ determinations regarding the ability of minors to make independent decisions regarding their health and well-being in consultation with medical professionals. Permitting the federal government to unilaterally substitute its policy judgment for the determinations of state legislatures and courts—as well as for the independent decisionmaking of the minor residents of those States—undermines both federalism interests and individual constitutional rights.
INTRODUCTION This case involves the application of well-established legal principles to extraordinary facts. Rehearing is warranted because the panel’s decision irreparably harms movant J.D., a seventeen-year-old unaccompanied minor immigrant in federal custody, who is fifteen weeks pregnant and is seeking to exercise her constitutional right to obtain an abortion. A Texas state court judge has already determined that J.D. is capable of making the decision to terminate her pregnancy. And J.D. has reiterated that she wants an abortion, despite extensive efforts by the federal government to convince her to proceed with the pregnancy. Nevertheless, the federal government insists that it is entitled to supersede J.D.’s decision and the state court’s determination, and it
2

refuses to permit J.D. to obtain a lawful abortion. The panel’s determination that this policy is not an undue burden so long as J.D. can hypothetically be released to a sponsor by October 31, conflicts with basic principles of federalism and is incorrect as a matter of law.
The government admits that it has adopted a policy which requires defendant Scott Lloyd, the Director of the Office for Refugee Resettlement (ORR), an office within the Department of Health and Human Services (HHS), to personally review and approve all requests for medical abortions made by unaccompanied immigrant minors who are in United States custody and are residing in a federally funded shelter. (White Decl. ¶ 12 (District Court Dkt. No 10-1).) The Director has, in turn, adopted a policy that forbids a shelter from taking an unaccompanied minor to a doctor who will provide abortion services, and only authorizes a shelter to transfer an unaccompanied minor to a doctor who will provide “pregnancy services and life-affirming options counseling.” (Amiri Decl., Ex. C (Dist. Ct. Dkt. No. 3-7).) This new policy applies nationwide to all unaccompanied immigrant minors who are in the custody of the United States government, including minors who are in custody in the amici States.
3

The government concedes, at least for purposes of this litigation, that unaccompanied minor immigrants in United States custody have the constitutional right to obtain an abortion. (Panel Decision at 2; Oral Arg. at 17:35-18:50.) Nevertheless, the government insists that it can require those minors to obtain the consent of a federal agency director prior to receiving abortion services. (Gov’t Opp’n to Mot. for a Temporary Restraining Order (Dist. Ct. Dkt. No. 10) at 4.) The government further maintains that it can lawfully adopt a policy to withhold consent to all requests for abortion services, absent evidence of sexual abuse or medical necessity. (Oral Arg. at 20:14-20:29, 22:00-22:30.) Both propositions are false.
First, the United States cannot impose a federal agency-consent requirement that does not exist under state law without infringing upon the sovereignty of those States that have decided to trust the independent judgment of minors who wish to exercise their constitutional right to obtain an abortion. The government’s new policy also infringes upon the sovereignty of those States that impose parental consent and notification requirements and have adopted judicial bypass procedures by which a minor can obtain a state court determination that she is mature enough
4

to make the decision to obtain an abortion. The government’s policy undermines state court determinations made pursuant to those judicial bypass procedures by refusing to give them full faith and credit, and by imposing additional layers of consent not required by state law, as has happened in this case.
Second, the government’s policy of withholding its consent to all requests for abortions, except in instances of sexual abuse and medical necessity, constitutes an undue burden on the constitutional rights of unaccompanied immigrant minors, including the movant. The panel’s conclusion that the policy is not an undue burden “so long as the process of securing a sponsor to whom the minor is released occurs expeditiously” (Panel Decision at 1), incorrectly assumes that the availability of release to a hypothetical sponsor is equivalent to the expeditious judicial bypass procedures available in states that impose parental consent requirements. However, the government’s policies and regulations governing release to a suitable sponsor are markedly different from the judicial bypass procedures that are required in order for parental consent statutes to pass constitutional muster. Thus, the availability of release
5

to a hypothetical sponsor does not cure the undue burden created by the government’s new policy.
ARGUMENT POINT I
THE GOVERNMENT’S POLICY REQUIRING AN AGENCY DIRECTOR’S APPROVAL OF ALL ABORTIONS VIOLATES FEDERALISM PRINCIPLES More than a dozen States, including amici New York, California, Connecticut, Hawai‘i, Maine, Oregon, Vermont, and Washington, and the District of Columbia, do not require minors to notify their parents or to obtain parental consent prior to receiving abortion services. See Guttmacher Institute, An Overview of Minors’ Consent Law as of October 1, 2017.1 These states have concluded that minors are entitled to a broad range of confidential family planning services and reproductive care, including abortion services, without parental intervention. These States have further concluded that minors are sufficiently mature to make the decision to terminate a pregnancy following consultation with a doctor. The federal government, disregarding the traditional prerogatives of the
1 https://www.guttmacher.org/state-policy/explore/overviewminors-consent-law
6

States over family matters and the specific determinations that different states have made, has adopted a national policy requiring federal agency approval of all abortion requests made by unaccompanied minor immigrants, including unaccompanied minor immigrants residing in those States that do not otherwise impose consent or notification requirements.
This policy plainly violates federalism principles. It is well established that—as with all issues of domestic and family relations— the standards for determining the best interests of children are governed by state law. See Lehr v. Robertson, 463 U.S. 248, 256-57 (1983); see also Ankenbrandt v. Richards, 504 U.S. 689, 694-95 (1992). This case involves state law determinations about whether and when a minor can consent to medical services without the involvement of her parents, and whether certain medical procedures are in the best interests of a child. This is not a case in which state procedures are alleged to be in violation of any federal right—to the contrary, the state procedures here are consistent with decades of well-established federal requirements.
The government’s policy also undermines the bypass procedures implemented by those states that do require parental consent by refusing
7

to give full faith and credit to the judicial determinations made as a result of those procedures. Here, J.D. has obtained a judicial determination from a Texas state court that she is sufficiently mature to make an independent decision to terminate her pregnancy. The government’s insistence that it is entitled to disregard the state court determination and to substitute its own judgment as to whether an abortion is in J.D.’s best interests is an affront both to J.D.’s constitutional rights and to Texas’s sovereignty.
POINT II THE GOVERNMENT’S POLICY BLOCKING DETAINED UNACCOMPANIED IMMIGRANT MINORS FROM OBTAINING ABORTIONS VIOLATES CLEARLY ESTABLISHED LAW The undue burden standard, as set out by the Supreme Court in Casey and reaffirmed in Whole Women’s Health, provides that a government policy is unconstitutional if it “place[s] a substantial obstacle in the path of a woman seeking an abortion.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992) (joint opinion of O’Connor, Stevens, and Souter, JJ); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016). The Supreme Court has held that a State can impose a parental consent or notification requirement
8

for minors who seek to obtain an abortion, but that such a requirement could not permit an “absolute, and possibly arbitrary, veto” over the decision of a minor and her doctor to terminate a pregnancy. Bellotti v. Baird, 443 U.S. 622, 643 (1979).
Accordingly, the Supreme Court has required that any State imposing a parental consent or notification requirement must “provide an alternative procedure whereby authorization for the abortion can be obtained.” Id. To pass constitutional muster, the bypass procedure must allow a pregnant minor to demonstrate either “(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes” or “(2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.” Id. at 643-44; see also Casey, 505 U.S. at 899. Further, the proceeding must ensure “anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Bellotti, 443 U.S. at 644.
The panel’s determination that the government’s policy does not unduly burden J.D.’s constitutional right to an abortion is based on the erroneous conclusion that the availability of hypothetical sponsors is akin
9

to the bypass procedures contemplated by Bellotti and approved in Casey. (Panel Decision at 1; Oral Arg. at 51:05-52:20.) It is not. As an initial matter, judicial bypass procedures are constitutional because they are available to all minors. See Casey, 505 U.S. at 899; Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (per curiam). By contrast, an unaccompanied minor immigrant may not have any sponsors to whom she could be released, because, as the movant explains in her petition (Pet. at 9-10; see also Carey Decl. ¶ 15), ORR does not generally allow individuals without a prior relationship to the minor or to the minor’s family to act as a sponsor. While all minors seeking to avail themselves of the judicial bypass procedure may file an application with the appropriate state court, many unaccompanied minor immigrants will not even be able to identify a potential sponsor to whom they could be released.
Moreover, the bypass procedures were instituted in order to prevent parents from exercising an “absolute” and “arbitrary” veto over a minor’s decision to terminate her pregnancy. Bellotti, 443 U.S. at 643. Accordingly, a bypass application requires an independent determination about the maturity of a minor, or in the alternative, about the best interests of that minor. But here, the agency that refuses to permit a
10

minor to obtain an abortion is the very same agency that reviews and approves release to a hypothetical sponsor. Thus, the sponsorship procedure may itself allow another opportunity for the agency to exercise an absolute and arbitrary veto over a minor’s independent decision.
Finally, although judicial bypass procedures are varied, they all provide procedural protections to minors that have no analogue under the sponsorship release procedures. For example, Texas law (with which J.D. has already fully complied) requires all cases to be filed confidentially, and forbids any court officer from disclosing to anyone that the minor is or has ever been pregnant or that she ever wanted an abortion. Rules and Forms for a Judicial Bypass of the Parental Notice and Consent under Chapter 33 of the Family Code (Rule) 1.4(a). Here, the government has pointed to no regulation or guideline that would forbid such disclosure to potential sponsors, or that would forbid the government from asking potential sponsors about their views on the minor’s request for an abortion. Texas also requires the court to appoint a guardian ad litem and an attorney ad litem to represent the minor at a hearing. Rule 2.3(a-b). Here, the government has not identified any
11

regulation or guideline that would provide equivalent representation to a minor in the course of the sponsorship approval process.
Most importantly, Texas requires the court to rule on a bypass application “as soon as possible” and “immediately after the hearing,” Rule 2.5(f), or at a minimum, by 5:00pm on the fifth day after the application was filed, see Tex. Fam. Code § 33.003(h). This timeliness requirement is necessary to comply with Bellotti’s “expeditiousness” standard, but also takes into account the time-sensitive nature of bypass applications. Moreover, the minor has the right to an expeditious appeal if her application is denied. Rule 3.3. Here, the government has not identified any regulation or guideline that requires release to a sponsor within a certain time frame. Nor has the government identified a regulation or guideline that permits an unaccompanied minor to challenge the denial of a particular sponsor. And critically, the government has not identified any time frame after which it must cease blocking a minor’s access to abortion services. To the contrary, the government maintains (Response to Pet. at 8-9) that its policy is constitutional even if a sponsor is not identified, because J.D. can
12

voluntarily depart the country.2 Thus, even the government does not believe that the sponsorship process is equivalent to judicial bypass.
2 Amici agree with the arguments raised by movant in her petition, as well as by Judge Millett’s dissent, as to why the availability of voluntary departure does not remedy the undue burden caused by the government’s policy.
13

CONCLUSION The petition for rehearing en banc should be granted, the panel’s
order should be vacated, and Defendants’ emergency motion for a stay of
the temporary restraining order entered by the district court should be
denied.
Dated: New York, NY October 24, 2017
Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General State of New York

BARBARA D. UNDERWOOD Solicitor General
ANISHA S. DASGUPTA Deputy Solicitor General
ESTER MURDUKHAYEVA Assistant Solicitor General
of Counsel

By: . /s/ Barbara D. Underwood . BARBARA D. UNDERWOOD Solicitor General
120 Broadway, 25th Floor New York, NY 10271 (212) 416-8020

(Counsel listing continues on next page.)

14

XAVIER BECERRA Attorney General State of California
1300 I St. Sacramento, CA 95814
GEORGE JEPSON Attorney General State of Connecticut
55 Elm St. Hartford, CT 06106
MATTHEW P. DENN Attorney General State of Delaware
Carvel State Bldg, 6th Fl. 820 North French St. Wilmington, DE 19801
DOUGLAS S. CHIN Attorney General State of Hawai‘i
425 Queen St. Honolulu, HI 96813
LISA MADIGAN Attorney General State of Illinois
100 W. Randolph St., 12th Fl. Chicago, IL 60601
THOMAS J. MILLER Attorney General State of Iowa
1305 E. Walnut St. Des Moines, IA 50319
JANET T. MILLS Attorney General State of Maine
State House Station #04333 Augusta, ME

MAURA HEALEY Attorney General Commonwealth of Massachusetts
One Ashburton Place Boston, MA 02108 ELLEN F. ROSENBLUM
Attorney General State of Oregon 1162 Court St. N.E. Salem, OR 97301 JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania 16th Fl., Strawberry Sq. Harrisburg, PA 17120
THOMAS J. DONOVAN, JR. Attorney General State of Vermont
109 State St. Montpelier, VT 05609 BOB FERGUSON
Attorney General State of Washington 800 Fifth Ave., Ste. 2000 Seattle, WA 98104 KARL A. RACINE Attorney General District of Columbia One Judiciary Sq. 441 4th St., N.W. Washington, DC 20001
15

CERTIFICATE OF COMPLIANCE
Pursuant to Rules 27 and 29 of the Federal Rules of Appellate Procedure and Local Rules, Barbara D. Underwood, an employee in the Office of the Attorney General of the State of New York, hereby certifies that according to the word count feature of the word processing program used to prepare this brief, the brief contains 2,375 words and complies with the type-volume limitations of Rule 29(b)(4).
. /s Barbara D. Underwood . Barbara D. Underwood

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the accompanying Corrected Brief by using the CM/ECF system on October 24, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: October 24, 2017
New York, NY
. /s/ Barbara D. Underwood .

 
 Case 1:17-cv-02122-TSC Document 27 Filed 10/24/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

EMERGENCY MOTION TO AMEND THE TEMPORARY RESTRAINING ORDER

Pursuant to the Mandate of the Court of Appeals in this case, issued October 24, 2017,
Plaintiff hereby moves for an order amending the temporary restraining order issued on October
18, 2017.
In the Court of Appeals’ per curiam order, the court “ORDERED that . . . [t]he case is
hereby remanded to the district court for further proceedings to amend the effective dates in
paragraph 1 of its injunction.” Order at 2. As the court noted, “[t]he dates in paragraph 1 have
now passed, and the parties have proffered new evidence and factual assertions concerning the
expected duration of custody and other matters.” Id. A copy of the Court of Appeals’ order, and
a copy of its mandate, are attached hereto.
In order to allow J.D. to obtain the abortion that she has chosen without further delay and
as may be required by Texas state law and the availability of physicians, Plaintiff moves that
Paragraph 1 of the temporary restraining order be amended to provide that the Defendants are:
1. Required to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay, on such dates, including today, and to such Texas abortion provider as shall be specified by J.D.’s guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure, in accordance with the

Case 1:17-cv-02122-TSC Document 27 Filed 10/24/17 Page 2 of 3

abortion provider’s availability and any medical requirements. If transportation to the nearest abortion provider requires J.D. to travel past a border patrol checkpoint, Defendants are restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so.

Plaintiff has been informed, and represents to the Court, that a qualified physician is available at the nearest clinic today, and will be available to perform the procedure tomorrow. Plaintiff accordingly urges the Court to issue an amended temporary restraining order forthwith.
Plaintiff does not believe that a hearing on this motion is necessary, but should the Court conclude otherwise Plaintiff’s counsel stand ready to appear in this Court at the Court’s earliest convenience.

Date: October 24, 2017

Respectfully submitted,
/s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri Meagan Burrows American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005

2

Case 1:17-cv-02122-TSC Document 27 Filed 10/24/17 Page 3 of 3
Telephone: (202) 675-2330 dmach@aclu.org Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Attorneys for Plaintiff
3

Case 1:17-cv-02122-TSC Document 27-1 Filed 10/24/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

[PROPOSED] AMENDED TEMPORARY RESTRAINING ORDER Upon consideration of Plaintiff’s Emergency Motion to Amend the Temporary Restraining Order issued by this court on October 18, 2017, and any opposition, reply, and the entire record in this case; It appears to the Court, for substantially the reasons stated in Judge Millett’s dissenting statement issued on October 20, 2017, and substantially adopted by the Court of Appeals in its Order of October 24, that (1) Plaintiff is likely to succeed on the merits of her action; (2) if Defendants are not immediately restrained from preventing her transportation to an abortion facility or otherwise interfering with or obstructing her access to an abortion—including by further forcing her to disclose her abortion decision against her will or disclosing her decision themselves, forcing her to obtain pre- and/or post-abortion counseling from an anti-abortion entity, and/or retaliating against her for her abortion decision—Plaintiff J.D. will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled; (3) the

Case 1:17-cv-02122-TSC Document 27-1 Filed 10/24/17 Page 2 of 3
Defendants will not be harmed if such an order is issued; and (4) the public interest favors the entry of such an order. It is, therefore,
ORDERED that Plaintiff’s Emergency Motion to Amend the Temporary Restraining Order is hereby GRANTED, and that Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are, for fourteen days from the date shown below, hereby:
1. Required to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay, on such dates, including today, and to such Texas abortion provider as shall be specified by J.D.’s guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure, in accordance with the abortion provider’s availability and any medical requirements. If transportation to the nearest abortion provider requires J.D. to travel past a border patrol checkpoint, Defendants are restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so.
2. Temporarily restrained from interfering with or obstructing J.D.’s access to abortion counseling or an abortion;
3. Temporarily restrained from further forcing J.D. to reveal her abortion decision to anyone, or revealing it to anyone themselves;
4. Temporarily restrained from retaliating against J.D. based on her decision to have an abortion;

Case 1:17-cv-02122-TSC Document 27-1 Filed 10/24/17 Page 3 of 3

5. Temporarily restrained from retaliating or threatening to retaliate against the contractor that operates the shelter where J.D. currently resides for any actions it has taken or may take in facilitating J.D.’s ability to access abortion counseling and an abortion.
It is further ORDERED that Plaintiff shall not be required to furnish security for costs. Failure to comply with the terms of this Order may result in a finding of contempt.

Date: October ____, 2017

___________________________ TANYA S. CHUTKAN United States District Judge

 
 Case 1:17-cv-02122-TSC Document 29 Filed 10/24/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

AMENDED TEMPORARY RESTRAINING ORDER Upon consideration of Plaintiff’s Emergency Motion to Amend the Temporary Restraining Order issued by this court on October 18, 2017 and the entire record in this case; For substantially the same reasons given in Judge Millett’s dissenting statement issued on October 20, 2017, and substantially adopted by the Court of Appeals in its Order of October 24, it appears to the Court that: (1) Plaintiff is likely to succeed on the merits of her action; (2) if Defendants are not immediately restrained from preventing her transportation to an abortion facility or otherwise interfering with or obstructing her access to an abortion—including by further forcing her to disclose her abortion decision against her will or disclosing her decision themselves, forcing her to obtain pre- and/or post-abortion counseling from an anti-abortion entity, and/or retaliating against her for her abortion decision—Plaintiff J.D. will suffer irreparable injury in the form of, at a minimum, increased risk to her health, and perhaps the permanent inability to obtain a desired abortion to which she is legally entitled; (3) the Defendants will not be harmed if such an order is issued; and (4) the public interest favors the entry of such an order. It is, therefore,
1

Case 1:17-cv-02122-TSC Document 29 Filed 10/24/17 Page 2 of 3
ORDERED that Plaintiff’s Emergency Motion to Amend the Temporary Restraining Order is hereby GRANTED, and that Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are, for fourteen days from the date shown below, hereby:
1. Required to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay, on such dates, including today, and to such Texas abortion provider as shall be specified by J.D.’s guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure, in accordance with the abortion providers’ availability and any medical requirements. If transportation to the nearest abortion provider requires J.D. to travel past a border patrol checkpoint, Defendants are restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so;
2. Temporarily restrained from interfering with or obstructing J.D.’s access to abortion counseling or an abortion;
3. Temporarily restrained from further forcing J.D. to reveal her abortion decision to anyone, or revealing it to anyone themselves;
4. Temporarily restrained from retaliating against J.D. based on her decision to have an abortion;
5. Temporarily restrained from retaliating or threatening to retaliate against the contractor that operates the shelter where J.D. currently resides for any actions it has taken or may take in facilitating J.D.’s ability to access abortion counseling and an abortion.
2

Case 1:17-cv-02122-TSC Document 29 Filed 10/24/17 Page 3 of 3 It is further ORDERED that Plaintiff shall not be required to furnish security for costs. Failure to comply with the terms of this Order may result in a finding of contempt. Date: October 24, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
3

Case 1:17-cv-02122-TSC Document 30 Filed 10/24/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

FINDINGS OF FACT IN SUPPORT OF AMENDED TEMPORARY RESTRAINING ORDER The court makes the following findings of fact in support of its Amended Temporary Restraining Order (ECF No. 29): 1. Plaintiff J.D. is a 17 year-old unaccompanied minor who entered the United States without legal documentation in September 2017. (Decl. of J.D., ECF No. 3-3). 2. J.D. was detained at the U.S. border, and was remanded to a shelter in Texas under a cooperative agreement with the Office of Refugee Resettlement (ORR) on September 8, 2017. (Decl. of Jonathan White, ECF No. 25-1). 3. After entering the U.S., J.D. received a medical evaluation and confirmation that she was pregnant. (Decl. of Jonathan White, ECF No. 25-1). 4. J.D. chose to terminate her pregnancy. Pursuant to Texas law, and with the assistance of an appointed guardian ad litem and attorney ad litem, she sought a judicial bypass of Texas’s parental notification and consent requirements, which she received on September 25, 2017.

1

Case 1:17-cv-02122-TSC Document 30 Filed 10/24/17 Page 2 of 3
5. In March 2017, the ORR announced that all federally funded shelters are prohibited from taking “any action that facilitates” abortion access for unaccompanied minors absent “direction and approval from the Director of the ORR.” (ECF No. 3–5 at 2).
6. J.D. sought to obtain the state-mandated counseling and the abortion procedure on September 28, 2017 and September 29, 2017. Pursuant to its new policy enacted in March 2017, Defendants refused, and have continued to refuse to transport her to the facility and refused to allow anyone else to transport her to the facility. (ECF No. 3-4).
7. Although Defendants have taken steps to dissuade J.D. from having an abortion, including requiring her to obtain counseling from a religiously affiliated crisis pregnancy center and view a sonogram, J.D. remains steadfast in her desire to terminate her pregnancy. (Decl. of J.D., ECF No. 3-3).
8. Defendants maintain that J.D. may obtain an abortion only if (1) an individual indicates his or her willingness to serve as a sponsor for J.D., qualifies for that position under applicable legal requirements, completes the administrative review process, and is approved by ORR, or (2) J.D. voluntarily returns to her home country, where Defendants concede abortion is illegal.
9. The process of identifying, vetting, and approving sponsors is lengthy and complex, involving multiple steps that can take weeks or months to complete. The process typically involves completion and submission of an application, requirements for extensive documentation of prior relationship to the minor and/or the minor’s family, background checks, home visits, and multiple stages of administrative review. The minor has no control over the sponsorship process, and ultimately the decision whether to
2

Case 1:17-cv-02122-TSC Document 30 Filed 10/24/17 Page 3 of 3
approve a particular sponsor rests with ORR. (Decl. of Robert Carey, ECF No. 23-1 at 2, 4, 5–7). 10. J.D. has obtained private funding to pay for the abortion, and her guardian and/or attorney ad litem have agreed to transport her to the abortion facility. 11. Texas law requires that an individual seeking an abortion must undergo counseling at least 24 hours in advance of the procedure by the same doctor who will perform the procedure. Oral Arg. 1:13:45–1:15:10. 12. J.D. first sought to terminate her pregnancy in late September, when she was approximately 11 weeks pregnant. She received judicial authorization on September 25, 2017. She is now approximately 15 weeks pregnant. Under Texas law, abortions are illegal after 20 weeks, and some doctors refuse to perform an abortion after more than 15.6 weeks. Oral Arg. 1:13:45–1:15:10.

Date: October 24, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

3

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
FILED ON: OCTOBER 24, 2017
No. 17-5236
ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D., ON BEHALF OF HERSELF AND
OTHERS SIMILARLY SITUATED, APPELLEE
v.
ERIC D. HARGAN, ACTING SECRETARY, HEALTH AND HUMAN SERVICES, ET AL., APPELLANTS
On Petition for Rehearing En Banc
Before: Garland, Chief Judge; Henderson***, Rogers, Tatel, Griffith***, Kavanaugh***, Srinivasan, Millett**, Pillard*, and Wilkins, Circuit Judges
O R D E R
Upon consideration of appellee’s petition for rehearing en banc and the supplements thereto, the response to the petition and the supplement to the response, the corrected brief for amici curiae States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington, and the District of Columbia in support of appellee’s petition, and the vote in favor of the petition by a majority of the judges eligible to participate;

2
and appellee’s motion to recall the mandate and petition for en banc consideration of appellee’s motion to recall the mandate, it is
ORDERED that the mandate be recalled. The Clerk of the district court is directed to return forthwith the mandate issued October 20, 2017. It is
FURTHER ORDERED that appellee’s petition for rehearing en banc be granted. This case has been considered by the court sitting en banc without oral argument, no judge having requested oral argument. It is
FURTHER ORDERED that the order filed October 20, 2017 be vacated, except that the administrative stay remains dissolved. It is
FURTHER ORDERED that appellants’ emergency motion for stay pending appeal be denied because appellants have not met the stringent requirements for a stay pending appeal, see Nken v. Holder, 556 U.S. 418, 434 (2009), substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.1 The case is hereby remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction. The dates in paragraph 1 have now passed, and the parties have proffered new evidence and factual assertions concerning the expected duration of custody and other matters. The district court is best suited to promptly determine in the first instance the appropriate dates for compliance with the injunction. In so doing, the district court retains full discretion to conduct proceedings and make any factual findings deemed necessary and appropriate to the district court’s exercise of its equitable judgment, consistent with this order, including with regard to any of the factual disputes that were raised for the first time on appeal. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330-31 (2006); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).

3 The Clerk is directed to issue the mandate forthwith.
Per Curiam FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Ken Meadows Deputy Clerk
* Circuit Judge Pillard did not participate in this matter. ** A statement by Circuit Judge Millett, concurring in the disposition of the case, is attached to this order. *** A statement by Circuit Judge Henderson, dissenting from the disposition of the case, is attached to this order. *** A statement by Circuit Judge Kavanaugh, joined by Circuit Judges Henderson and Griffith, dissenting from the disposition of the case, is attached to this order.
_____________ 1 As both parties agree, the court has jurisdiction over this appeal because the district court’s temporary restraining order was more akin to preliminary injunctive relief and is therefore appealable under 28 U.S.C. § 1292(a)(1). See Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974).

MILLETT, Circuit Judge, concurring:
While I disagreed with the panel order, I recognize that my colleagues labored hard under extremely pressured conditions to craft a disposition that comported with their considered view of the law’s demands.
Fortunately, today’s decision rights a grave constitutional wrong by the government. Remember, we are talking about a child here. A child who is alone in a foreign land. A child who, after her arrival here in a search for safety and after the government took her into custody, learned that she is pregnant. J.D. then made a considered decision, presumably in light of her dire circumstances, to terminate that pregnancy. Her capacity to make the decision about what is in her best interests by herself was approved by a Texas court consistent with state law. She did everything that Texas law requires to obtain an abortion. That has been undisputed in this case.
What has also been expressly and deliberately uncontested by the government throughout this litigation is that the Due Process Clause of the Fifth Amendment fully protects J.D.’s right to decide whether to continue or terminate her pregnancy. The government—to its credit—has never argued or even suggested that J.D.’s status as an unaccompanied minor who entered the United States without documentation reduces or eliminates her constitutional right to an abortion in compliance with state law requirements.
Where the government bulldozed over constitutional lines was its position that—accepting J.D.’s constitutional right and accepting her full compliance with Texas law—J.D., an unaccompanied child, has the burden of extracting herself from custody if she wants to exercise the right to an abortion that the government does not dispute she has. The government has insisted that it may categorically blockade exercise of her constitutional right unless this child (like some kind of legal Houdini) figures her own way out of detention by either (i)

2
surrendering any legal right she has to stay in the United States and returning to the abuse from which she fled, or (ii) finding a sponsor—effectively, a foster parent—willing to take custody of her and to not interfere in any practical way with her abortion decision.
That is constitutionally untenable, as the en banc court agrees. Settled precedent from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), establishes that the government may not put substantial and unjustified obstacles in the way of a woman’s exercise of her right to an abortion pre-viability. The government, however, has identified no constitutionally sufficient justification for asserting a veto right over J.D. and Texas law.
Judge Kavanaugh’s dissenting opinion claims that the court has somehow broken new constitutional ground by authorizing “immediate abortion on demand” by “unlawful immigrant minors” (Judge Kavanaugh’s Dissent Op. 1). What new law? It cannot be J.D.’s status as an undocumented immigrant because the government has accepted that her status does not affect her constitutional right to an abortion, as Judge Kavanaugh’s opinion acknowledges on the next page (Dissent Op. 2). Accordingly, in this litigation, J.D., like other minors in the United States who satisfy state-approved procedures, is entitled under binding Supreme Court precedent to choose to terminate her pregnancy. See, e.g., Bellotti v. Baird, 443 U.S. 622 (1979). The court’s opinion gives effect to that concession; it does not create a “radical” “new right” (Judge Kavanaugh Dissent Op. 1) by doing so.1
1 Because at no point in its briefing or oral argument in this court or the district court did the government dispute that J.D. has a constitutional right to obtain an abortion, the government has forfeited any argument to the contrary. See, e.g., Koszola v. FDIC,

3
Beyond that, it is unclear why undocumented status should change everything. Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby. The bedrock protections of the Fifth Amendment’s Due Process Clause cannot be that shallow.
Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.
1. Sponsorship
The centerpiece of the panel order (and now Judge Kavanaugh’s dissenting opinion at 2-3) was the conclusion that forcing J.D. to continue her pregnancy for multiple more weeks is not an “undue burden” as long as the sponsorship search is undertaken “expeditiously.” Panel Order at 1. The panel order then treated its ordered eleven-day delay as just such an expeditious process.
But that starts the clock long after the horses have left the gate. The sponsorship search has already been underway for
393 F.3d 1294, 1299 n.1 (D.C. Cir. 2005). In fact, at oral argument, government counsel affirmed, in response to a direct question, that the argument was waived in this case. Oral Arg. 17:50; see, e.g., GSS Group Ltd. v. National Port Auth. of Liberia, 822 F.3d 598, 608 (D.C. Cir. 2016).

4
now-almost seven weeks. Throughout all of that time, the government was under a statutory obligation to find a sponsor if one was available. See 8 U.S.C. § 1232(c)(2). None materialized. Tacking on another eleven days to an already nearly seven-week sponsorship hunt—that is, enforcing an almost nine week delay before J.D. can even start again the process of trying to exercise her right—is the antithesis of expedition. A nine-week waiting period before litigation can start or resume, if adopted by a State, would plainly be unconstitutional. Cf. Whole Woman’s Health, 136 S. Ct. at 2318 (striking restrictions on abortion providers as unduly burdensome, noting in part “clinics’ experiences since the admitting-privileges requirement went into effect of 3-week wait times”) (citations omitted).
For very good reason, the sponsorship process is anything but expeditious. The sponsor is much like a foster parent, someone who chooses to house and provide for a child throughout her time in the United States, and who promises to ensure her appearance at all immigration proceedings. To protect these acutely vulnerable children from trafficking, sexual exploitation, abuse, and neglect, Congress requires the Department of Health and Human Services to be careful in its review and restrictive in who can apply. See 8 U.S.C. § 1232. To that end, agency regulations provide that potential sponsors must either be related to J.D. or have some “bona fide social relationship” with the child that “existed before” her arrival in the United States.2

2 Office of Refugee Resettlement, Section 2: Safe and Timely

Release

from

ORR

Care,

available

at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-

states-unaccompanied-section-2 (last visited Oct. 24, 2017) (“In the

absence of sufficient evidence of a bona fide social relationship with

the child and/or the child’s family that existed before the child

5
On top of that, the panel’s order did not say that, at the end of its eleven days, J.D. could terminate her pregnancy if no sponsor were found. Quite the opposite: The order just stopped everything—except, critically, the continuation of J.D.’s pregnancy—until October 31st, at which time J.D. would have to restart the litigation all over again unless a sponsor was lucked upon. There is nothing expeditious about the prolonged and complete barrier to J.D.’s exercise of her right to terminate her pregnancy that the panel order allowed the government to perpetuate.
Nor was any constitutionally sound justification for the order’s imposition of eleven more days on top of the already elapsed seven weeks ever advanced by the government. In fact, the government (i) never requested a stay to find a sponsor; (ii) never asked for a remand; (iii) never suggested in briefing or oral argument that there was any prospect of finding a sponsor at all, let alone finding one in the next eleven days or even in the foreseeable future; (iv) never even hinted, since no family member has been approved as a sponsor, that a non-family member could be identified, vetted, and take custody of J.D. within eleven days; and (v) never made any factual or legal argument contending that the already-seven-week-long-andcounting sponsorship process was an “expeditious” process or the type of short-term burden that could plausibly pass muster under Supreme Court precedent to bar an abortion.
All the government argues with respect to sponsorship was that its flat and categorical prohibition of J.D.’s abortion was permissible because she could leave government custody if a sponsor were found or she surrendered any claim of legal right to stay here and voluntarily departed. Oral Arg. 12:35; 24:30–
migrated to the United States, the child will not be released to that individual.”) (emphases added).

6
25:15. Custody, the government insists, is the unaccompanied child’s problem to solve.
A detained, unaccompanied minor, however, has precious little control over the sponsorship process. The Department of Health and Human Services is statutorily charged with finding, vetting, and approving sponsors. See 8 U.S.C. § 1232(c); 6 U.S.C. § 279. So the government’s position that J.D. cannot exercise her constitutional right unless the government approves a sponsor imposes a flat prohibition on her reproductive freedom that J.D. has no independent ability to overcome.
Nor does sponsorship bear any logical relationship to J.D.’s decision to terminate the pregnancy. Because J.D. has obtained a judicial bypass order from a Texas court that allows her to decide for herself whether an abortion is in her own best interests, a sponsor would have no ability to control or influence J.D.’s decision. See Texas Family Code § 33.003(i3). Accordingly, finding a sponsor and allowing J.D. to exercise her unchallenged constitutional right are not mutually exclusive. The two can and should proceed simultaneously.
Judge Kavanaugh’s dissenting opinion (at 4) suggests that it would be good to put J.D. “in a better place when deciding whether to have an abortion.” That, however, is not any argument the government ever advanced. The only value of sponsorship identified by the government was that sponsorship, like voluntary departure from the United States, would get J.D. and her pregnancy out of the government’s hands.
In any event, even if sponsorship, as Judge Kavanaugh supposes, might be more optimal in a policy sense, J.D. has already made her decision, and neither the government nor the dissenting opinion identifies a constitutionally sufficient justification consistent with Supreme Court precedent for

7
requiring J.D. to wait for what may or may not be a better environment. The dissenting opinion further assumes that J.D. is different because she lacks a “support network of friends and family.” Judge Kavanaugh’s Dissent Op. 5. Unfortunately, the central reason for the bypass process is that pregnant girls and women too often find themselves in dysfunctional and sometimes dangerous situations—such as with sexually or physically abusive parents and spouses—in which those networks have broken down. See Texas Family Code § 33.003(i-3) (authorizing bypass when the court finds that “the notification and attempt to obtain consent would not be in the best interest of the minor[]”). It thus would require a troubling and dramatic rewriting of Supreme Court precedent to make the sufficiency of someone’s “network” an added factor in delaying the exercise of reproductive choice even after compliance with all state-mandated procedures.
“Voluntary” departure is not a constitutionally adequate choice either given both the life-threatening abuse that J.D. claims to face upon return, and her potential claims of legal entitlement to remain in the United States. See Sealed Decl.; 8 U.S.C. § 1101(a)(27)(J) (special immigrant juvenile status); 8 C.F.R. § 204.11.3 Notably, while presenting a legal argument
3 While the government now objects that J.D. has not previously identified on which statutory basis she would seek relief from removal, Appellants’ Opp’n to Reh’g Pet. 5–6, 14, J.D. has argued all along that her exercise of her unchallenged right under the Due Process Clause to an abortion could not be conditioned on her “giv[ing] up her opportunity to be reunited with family here in the United States, or forcing her to return to her home country and abuse.” Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending Appeal 18; see Pl.’s Reply in Supp. of Mot. for TRO 6 (“The government should not be allowed to use her constitutional right to access abortion as a bargaining chip to trade for immigration status[.]”). While she had not yet cited to particular statutory

8
that relied heavily on voluntary departure to defend its abortion prohibition, government counsel was unable to confirm at oral argument whether or how voluntary departure actually works for unaccompanied minors over whom the government is exercising custody. See Oral Arg. 28:15–28:50; cf. 6 U.S.C. § 279(b)(2)(B) (restricting the release of unaccompanied minors on their own recognizance). The government has put nothing in the record to suggest that it is in the practice of putting children on airplanes all alone and just shipping them back to abusive and potentially life-endangering situations.
2. Facilitation
The government argues that it need not “facilitate” J.D.’s decision to terminate her pregnancy. But the government is engaged in verbal alchemy. To “facilitate” something means “[t]o make (an action, process, etc.) easy or easier; to promote, help forward; to assist in bringing about (a particular end or result).”4 This case does not ask the government to make things easier for J.D. The government need not pay for J.D.’s abortion; she has that covered (with the assistance of her guardian ad litem). The government need not transport her at any stage of the process; J.D. and her guardian ad litem have arranged for that. Government officials themselves do not even have to do any paperwork or undertake any other administrative measures. The contractor detaining J.D. has advised that it is willing to handle any necessary logistics, just as it would for medical appointments if J.D. were to continue her pregnancy. The government also admitted at oral argument
provisions, that presumably is because the government has not yet initiated removal proceedings.
4 See OXFORD ENGLISH DICTIONARY ONLINE (“facilitate” def. 1(a)), http://www.oed.com/view/Entry/67460?redirectedFrom= facilitate#eid (last visited Oct. 24, 2017).

9
that, in light of the district court’s order, the Department of Health and Human Services does not even need to complete its own self-created internal “best interests” form. See Oral Arg. 31:40–33:15. So on the record of this case, the government does not have to facilitate—make easier—J.D.’s termination of her pregnancy. It just has to not interfere or make things harder.
The government’s suggestion of sponsorship as a facilitation-free panacea also overlooks that it would require substantial governmental effort and resources for J.D. to be placed into the hands of a sponsor who must enter into an agreement with the government and is responsible for ensuring the minor’s appearance at all immigration proceedings.5 While after expending all of its resources to find, vet and approve the transfer, the government’s ongoing ties to sponsors are presumably less than for a grantee, the government has put no facts in the record or any argument as to why that difference in degree should be constitutionally sufficient. In any event, transferring J.D. into the custody of the guardian ad litem to obtain the abortion would require far less use of governmental resources and personnel and far less facilitation. The government’s desire to have as little to do as possible with J.D.’s exercise of her constitutional right while in custody thus seems erratic.
The government’s claim that it does not think that an abortion is in J.D.’s best interests does not work either. The judicial bypass already put that best interests decision in J.D.’s hands. On top of that, the government does not even claim that it is making an individualized “best interests” judgment in

5 See Office of Refugee Resettlement, Section 2.8.1: After Care

Planning,

available

at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-

states-unaccompanied-section-2 (last visited Oct. 24, 2017).

10
forbidding J.D.’s abortion. It is simply supplanting her legally authorized best interests judgment with its own categorical position against abortion—which is something not even a parent or spouse or State could do. Only the big federal government gets this veto, we are told.
The government unquestionably is fully entitled to have its own view preferring the continuation of pregnancy, and to even require the disclosure of information expressing that view. But the government’s mere opposition to J.D.’s decision is not an individualized “best interests” judgment within any legally recognized meaning of that term, and its asserted categorical bar to abortion is without constitutional precedent.
3. Abuse of Discretion Review
In resolving this case, it must be remembered that this case arises on abuse-of-discretion review of a district court’s injunctive order. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). And the expedition with which the panel and now the en banc court have acted underscores that time is a zero-sum matter in this case. J.D. is already into the second trimester of her pregnancy, which means that, as days slip by, the danger that the delayed abortion procedure poses to her health increases materially. We are told that waiting even another week could increase the risk to J.D.’s health, the potential complexity of the procedure, and the great difficulty of locating an abortion provider in Texas.6 The sealed declaration filed in this case attests that a
6 Oral Arg. 1:13:45-1:15:10 (Counsel for J.D.: “Texas law requires counseling at least 24 hours in advance of the procedure by the same doctor who is to provide the abortion. Because of the limited availability of doctors to provide abortions in Texas, the same doctor is not always at the facility in south Texas. So, for example, the doctor that provided the counseling yesterday to J.D. is there

11
compelled return to her country at this time would expose her to even more life-threatening physical abuse.
The irreparable injury to J.D. of postponing termination of her pregnancy—the weekly magnification of the risks to her health and the ever-increasing practical barriers to obtaining an abortion in Texas—have never been factually contested by the government. J.D.’s counsel has advised, and the government has not disputed, that she is on the cusp of having to travel
today and on Saturday, but is not the same doctor who is there next week. So next week, there is a different doctor there on Monday and Tuesday, so if J.D. were allowed to have the abortion next week, she would have to be, unless this court declares otherwise, * * * counseled by this different doctor there on Monday and wait 24 hours to have the abortion on Tuesday. * * * [After Tuesday October 24, 2017], we are looking at the following week. The doctor that is there Thursday, Friday and Saturday, the following week * * * [is the doctor that only performs abortions at 15.6 weeks]. And we are very concerned that she is on the cusp, so even if she is able to go next week, she may be past the limit for that particular doctor.”); Reh’g Pet. 4–5; Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending Appeal 3; see Williams v. Zbaraz, 442 U.S. 1309, 1314–1315 (1979) (Stevens, J., sitting as Circuit Justice) (evidence of an increased risk of “maternal morbidity and mortality” supports a claim of irreparable injury); Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion—Related Mortality in the United States, 103:4 OBSTETRICS & GYNECOLOGY 729 (April 2004) (relative risk from abortion increases 38% each gestational week); Cates, W. Jr, Schulz, K.F., Grimes, D.A., Tyler, C.W. Jr., The Effect of Delay and Method Choice on the Risk of Abortion Morbidity, FAMILY PLANNING PERSPECTIVES 1977; 9:266, 273 (“[I]f a woman delays beyond the eighth week up to 10 weeks, the major morbidity rate is 0.36, which is 57 percent higher than her risk at eight or fewer weeks. Similarly, if she delays her abortion procedure until the 11-12-week interval, she increases her relative risk of major morbidity by 91 percent.”).

12
hundreds of miles to obtain an abortion. See Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending Appeal 9 (representing that, as of October 19, 2017, depending on which doctor is available, it may be that J.D.’s “only option next week would be to travel hundreds of miles to a more remote clinic”); Reh’g Pet. 5; supra note 6. Likewise, at no time before the district court or the panel did the government’s briefing or oral argument dispute J.D.’s claim of severe child abuse or ask for fact finding on that claim.
On the other side of the balance, the government asserts only its opposition to an abortion by J.D. as an unaccompanied minor in the custody of a Department of Health and Human Services grantee. That is an acutely selective form of resistance since the government acknowledges it would not apply were J.D. to turn 18 and be moved to Immigration and Customs Enforcement custody or were she a convicted criminal in Bureau of Prisons custody. Oral Arg. 9:20–11:45. Under current governmental policy and regulations, those women are permitted to terminate their pregnancies.7 Given that dissonance in the government’s position, the balancing of interests weighs heavily in J.D.’s favor.
In short, I fully agree with the en banc court’s decision to deny the government’s motion for a stay and to remand for further expeditious proceedings and any appropriate fact finding, especially in light of the factual disputes surfaced for the first time in the rehearing papers.
Because J.D.’s right to an abortion under the Due Process Clause is unchallenged and because J.D. has done everything that Texas law requires (and more) to obtain an abortion, the government bore the burden of coming forward with a

7 See ICE Guidelines, Detention Standard 4.4, Medical Care,

available

at

https://www.ice.gov/doclib/detention-

standards/2011/medical_care_women.pdf; 28 C.F.R. § 551.23.

13
constitutionally sufficient justification for flatly forbidding termination of her pregnancy. The government’s mere hope that an unaccompanied, abused child would make the problem go away for it by either (i) surrendering all of her legal rights and leaving the United States, or (ii) finding a sponsor the government itself could never find is not a remotely constitutionally sufficient reason for depriving J.D. of any control over this most intimate and life-altering decision. The court today correctly recognizes that J.D.’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion? The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.
The en banc Court endorses or at least has no problem with this result. By virtue of my colleagues’ decision, a pregnant alien minor who attempts to enter the United States illegally is entitled to an abortion, assuming she complies with state abortion restrictions once she is here. Under my colleagues’ decision, the minor need not have “developed substantial connections with this country,” United States v. VerdugoUrquidez, 494 U.S. 259, 271 (1990), as the plaintiff here plainly has not. Under my colleagues’ decision, the minor need not have “effected an entry into the United States,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001), because the plaintiff here did not, see id. (alien “paroled into the United States pending admissibility,” without having “gained [a] foothold,” has “not effected an entry”). Under my colleagues’ decision, it is difficult to imagine an alien minor anywhere in the world who will not have a constitutional right to an abortion in this country. Their action is at odds with Supreme Court precedent. It plows new and potentially dangerous ground. Accordingly, I dissent from the vacatur of the stay pending appeal.
I. BACKGROUND
In or about early July 2017, 17-year-old Jane Doe (J.D.) became pregnant. On or about September 7, 2017, she attempted to enter the United States illegally and

2
unaccompanied. By J.D.’s own admission, authorities detained her “upon arrival.” District Court Docket Entry (Dkt. No.) 113 at 1. She has since remained in federal custody—in a federally funded shelter—because she is an “unaccompanied alien child.” 6 U.S.C. § 279(g)(2) (“unaccompanied alien child” is “a child who,” inter alia, “has no lawful immigration status in the United States” and “has not attained 18 years of age”).
The Office of Refugee Resettlement (ORR) of the United States Department of Health and Human Services (HHS) is responsible for “unaccompanied alien children who are in Federal custody by reason of their immigration status.” 6 U.S.C § 279(b)(1)(A). In March 2008, HHS announced a “[p]olicy” that “[s]erious medical services, including . . . abortions, . . . require heightened ORR involvement.” HHS, Medical Services Requiring Heightened ORR Involvement (Mar. 21, 2008), perma.cc/LDN8-JNL5. In March 2017, consistent with that policy, ORR further announced that shelter personnel “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR.” Dkt. No. 3-5 at 2.
According to the declaration of an ORR official, J.D. was physically examined while in custody and “was informed that she [is] pregnant.” Dkt. No. 10-1 at 2. J.D.’s counsel interprets the declaration to say that “J.D. did not learn that she was pregnant until after her arrival in the United States.” Pl.’s Opp. to Defs.’ Emergency Mot. for Stay Pending Appeal (Opp.) 2223; see also Panel Dissent of Millett, J. (Panel Dissent) 2 (“After entering the United States, [J.D.] . . . learned that she is pregnant.”). But the declaration does not rule out that J.D. knew she was pregnant even before the examination. Nor has J.D. herself alleged that she first learned of her pregnancy in this country. See generally Dkt. No. 1-13 at 1 (J.D.’s

3
declaration in support of complaint). And it is highly likely she knew when she attempted to enter the United States that she was pregnant, as she was at least eight weeks pregnant at the time.1 Notably, elective abortion is illegal in J.D.’s home country. Oral Arg. Recording 29:19-29:34.
J.D. requested an abortion. The evidence before us is that it is an elective abortion: nothing indicates it is necessary to preserve J.D.’s health.2 J.D.’s request was relayed to the ORR Director, who denied it. On October 13, 2017—having spent a mere 36 days in the United States, all of them in custody—J.D. filed suit in district court, enlisting this country’s courts to vindicate (inter alia) her alleged Fifth Amendment right to an abortion. The next day, she applied for a temporary restraining order (TRO) and moved for a preliminary injunction.
The government opposed J.D.’s application and motion. For reasons known only to the government, it did not take a position on whether J.D.—as an alien who attempted to enter the United States illegally and who has no substantial connections with this country—has any constitutional right to an abortion. Instead the government argued that ORR has placed no “undue burden” on the alleged right. Dkt. No. 10 at 11-16 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)). At the TRO hearing, the district court repeatedly pressed the government about whether J.D. has a constitutional right to an abortion. The government emphasized that it was
1 A recent declaration filed under seal by J.D.’s attorney ad litem provides further circumstantial evidence that J.D. left her home country because of her pregnancy. Cortez Decl. ¶ 8.
2 At oral argument, HHS stated its policy is that an emergency abortion, which it interprets to include a “medically necessary” abortion, would be allowed. Oral Arg. Recording 20:00-20:27.

4
“not taking a . . . position” but was “not going to give [the court] a concession” either. Opp., Supplement 14.
The district court issued a TRO requiring that the government allow J.D. to be transported to an abortion provider for performance of the procedure. The government appealed the TRO to this Court and sought a stay pending appeal. At oral argument, the government repeatedly stated that it takes no position on whether J.D. has a constitutional right to an abortion, Oral Arg. Recording 8:10-8:46, 16:43-17:12, and that it instead “assume[s] for the purposes of . . . argument” that she has such a right, Oral Arg. Recording 17:27-17:52.3
On October 20, 2017, over a dissent, a motions panel of this Court issued an order directing the district court to allow HHS until close of business October 31 to find a suitable sponsor to take custody of J.D. so that HHS can release her from its custody. Without deciding whether J.D. has a constitutional right to an abortion, the panel concluded that a short delay to secure a sponsor does not unduly burden any alleged right if the process is expeditiously completed by close of business October 31.
3 Under insistent pressure to state whether the government was “waiving” the issue, counsel for the government said yes in the heat of the moment. Oral Arg. Recording 17:41-17:52. But the next moment, when reminded of the difference between forfeiture and waiver—a distinction that lawyers often overlook or misunderstand, cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (even “jurists often use the words interchangeably”)—counsel effectively retracted the foregoing statement, saying she was “not authorized to take a position” on whether J.D. has a constitutional right to an abortion, Oral Arg. Recording 17:52-18:51.

5
On October 22, 2017, J.D. filed a petition for rehearing en banc. Today, the Court grants the petition, vacates the panel’s October 20 order and denies the government’s motion for stay pending appeal “substantially for the reasons set forth in” the panel dissent.
II. ANALYSIS
As I noted at the outset, the en banc Court’s decision in effect means that a pregnant alien minor who attempts to enter the United States illegally is entitled to an abortion, assuming she complies with state abortion restrictions once she is here. Although the government has for some reason failed to dispute that proposition, it is not the law.
A. WE CAN AND MUST DECIDE THE ANTECEDENT QUESTION OF WHETHER J.D. HAS A CONSTITUTIONAL
RIGHT TO AN ABORTION.
The Supreme Court has held that if a party “fail[s] to identify and brief” “an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute,” an appellate court may consider the issue sua sponte. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)); cf. United States v. Bowie, 198 F.3d 905, 913 (D.C. Cir. 1999) (“We are never bound to accept the government’s confession of error” (citing Young v. United States, 315 U.S. 257, 258 (1942), United States v. Pryce, 938 F.2d 1343, 1351-52 (D.C. Cir. 1991) (Randolph, J., concurring))). Here, the question of whether J.D. has a constitutional right to an abortion is “antecedent to” any issue of undue burden. And the antecedent question is “dispositive of” J.D.’s Fifth Amendment claim, at least now that my colleagues have reinstated the TRO on the apparent theory that the claim is likely meritorious. Accordingly, we can and should expressly decide the antecedent question.

6
True, we should not ordinarily confront a broad constitutional question “if there is also present some other ground upon which the case may be disposed of,” Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), including if the alternative is a “narrower” constitutional ground, Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 184 (1999).4 But in the analogous context of qualified immunity, we are “permitted . . . to avoid avoidance—that is, to determine whether a right exists before examining” the narrower question of whether the right “was clearly established” at the time an official acted. Camreta v. Greene, 563 U.S. 692, 706 (2011). Our discretion in that area rests on the recognition that it “is sometimes beneficial to clarify the legal standards governing public officials.” Id. at 707. The same interest is, to put it mildly, implicated here. Border authorities, immigration officials and HHS itself would be well served to know ex ante whether pregnant alien minors who come to the United States in search of an abortion are constitutionally entitled to one. And under today’s decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip.5
4 We cannot duck a broad constitutional question if the alternative ground is not “an adequate basis for decision.” Greater New Orleans Broad. Ass’n, 527 U.S. at 184. At the panel stage, the possibility of expeditious sponsorship was an adequate narrower basis for our decision to briefly delay J.D.’s abortion. By contrast, today’s result—which has the real-world effect of entitling J.D. to an abortion—is difficult to explain unless it rests at least in part on the proposition that J.D. has a constitutional right to an abortion. Even if I were to assume, without in any way conceding, that J.D. had such a constitutional right, I would nonetheless stand by the panel order.
5 The panel dissent paid lip service to constitutional avoidance, Panel Dissent 8, before sweepingly declaring that when alien minors

7
Granted, because of the government’s failure to take a position,6 we in theory have discretion not to decide the antecedent question. But in reality the ship has sailed: as a result of my colleagues’ decision, J.D. will soon be on her way to an abortion procedure she would not receive absent her invocation of the Fifth Amendment. If ever there were a case in which the public interest compels us to exercise our “independent power to identify and apply the proper construction of governing law” irrespective of a party’s litigating position, U.S. Nat’l Bank of Or., 508 U.S. at 446 (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
“find themselves on our shores and pregnant” and seeking an abortion, “the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.” Panel Dissent 9-10 (emphases added). That is not judicial modesty.
6 I could not disagree more strongly with Judge Millett’s characterization of the government’s position on the merits—i.e., that it outright “waived” any contention that J.D. has no constitutional right to an abortion. Millett Concurrence 2-3 n.1. She must have read different papers and listened to a different argument from the ones I read and listened to. A waived argument “is one that a party has knowingly and intelligently relinquished.” Wood v. Milyard, 132 S. Ct. 1826, 1832 n.4 (2012). The government has declared time and again that it is not taking a position on whether J.D. has a constitutional right to an abortion. That is not waiver. Government counsel in the district court stated that he was neither raising nor conceding the point. That is not waiver. Government counsel in this Court stated that she lacked authority to take a position. That, too, is not waiver: counsel who disclaims such authority cannot relinquish an argument any more than she can advance one. All this is beside the point, however, because of our independent duty to declare the law. See U.S. Nat’l Bank of Or., 508 U.S. at 446.

8
(1991)), this is it. The stakes, both in the short run and the long, could scarcely be higher.
B. J.D. HAS NO CONSTITUTIONAL RIGHT TO AN ABORTION.
J.D. is not a U.S. citizen. She is not a permanent resident, legal or otherwise. According to the record, she has no connection to the United States, let alone “substantial” connections. Despite her physical presence in the United States, J.D. has never entered the United States as a matter of law and cannot avail herself of the constitutional rights afforded those legally within our borders. Accordingly, under a correct interpretation of the law, J.D. has virtually no likelihood of success on the merits and the TRO issued by the district court should remain stayed. See Mazurek v. Armstrong, 520 U.S. 968, 970 (1997) (preliminary injunctive relief unavailable if the plaintiff cannot establish a likelihood of success on the merits).
“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Thus a young girl detained at Ellis Island for a year, and then released to live with her father in the United States for nearly a decade, “was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230 (1925). Even after she was no longer detained, “[s]he was still in theory of law at the boundary line and had gained no foothold in the United States.” Id. Nearly six decades ago the Supreme Court had already said that “[f]or over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the

9
United States.” Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).
Aliens who have entered the United States—even if illegally—enjoy “additional rights and privileges not extended to those . . . who are merely ‘on the threshold of initial entry.’” Id. at 187 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). “[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). Until then—before developing the “substantial connections” that constitute “entry” for an illegally present alien—“[t]he Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.” Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring).
We have repeatedly recognized this principle, as have our sister circuits and, most important, as has the Supreme Court. See Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring in the judgment); Demore v. Kim, 538 U.S. 510, 546 (2003); Shaughnessy, 345 U.S. at 215; Kaplan, 267 U.S. at 230; United States v. Ju Toy, 198 U.S. 253, 263 (1905) (alien petitioner, “although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate”); Kiyemba v. Obama, 555 F.3d 1022, 1036-37 n.6 (D.C. Cir. 2009) (Rogers, J., concurring in the judgment) (quoting Mezei, Leng May Ma and Ju Toy in support of proposition that habeas court can order detainee brought within U.S. territory without thereby effecting detainee’s “entry” for any other purpose), vacated on other grounds, 559 U.S. 131 (2010); Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1383 (D.C. Cir. 1990) (Sentelle, J., concurring)

10
(summarizing the entry doctrine).7 Because she has never entered the United States, J.D. is not entitled to the due process protections of the Fifth Amendment. See Albathani v. INS, 318 F.3d 365, 375 (1st Cir. 2003) (“As an unadmitted alien present in the United States, Albathani’s due process rights are limited”). This is, or should be, clear from the controlling and
7 See also Albathani v. INS, 318 F.3d 365, 375 (1st Cir. 2003); Nwozuzu v. Holder, 726 F.3d 323, 330 n.6 (2d Cir. 2013) (discussing Kaplan); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954) (“in a literal and physical sense a person coming from abroad enters the United States whenever he reaches any land, water or air space within the territorial limits of this nation” but “those who have come from abroad directly to [an inspection] station seeking admission in regular course have not been viewed by the courts as accomplishing an ‘entry’ by crossing the national boundary in transit or even by arrival at a port so long as they are detained there pending formal disposition of their requests for admission”); United States v. CarpioLeon, 701 F.3d 974, 981 (4th Cir. 2012) (“the crime of illegal entry inherently carries this additional aspect that leaves an illegal alien’s status substantially unprotected by the Constitution in many respects”); Gonzalez v. Holder, 771 F.3d 238, 245 (5th Cir. 2014) (alien who entered the United States illegally at age seven and remained for the next 17 years was, under Kaplan, deportable and ineligible for derivative citizenship despite his father’s intervening naturalization); Vitale v. INS, 463 F.2d 579, 582 (7th Cir. 1972) (paroled alien “did not effect an entry into the United States”); Montgomery v. Ffrench, 299 F.2d 730, 733 (8th Cir. 1962) (discussing Kaplan); United States v. Argueta-Rosales, 819 F.3d 1149, 1158 (9th Cir. 2016) (“for immigration purposes, ‘entry’ is a term of art requiring not only physical presence in the United States but also freedom from official restraint”); United States v. CanalsJimenez, 943 F.2d 1284, 1286, 1288 (11th Cir. 1991) (reversing conviction of alien “found in” the United States illegally because alien never “entered” the United States in the sense of Kaplan and Leng May Ma).

11
persuasive authorities marshaled above, which are only a fraction of the whole.
Even if J.D. did enjoy the protections of the Due Process Clause, however, due process is not an “all or nothing” entitlement. In some cases “[i]nformal procedures will suffice,” Goldberg v. Kelly, 397 U.S. 254, 269 (1970); “consideration of what procedures due process may require” turns on “the precise nature of the government function” and the private interest. Cafeteria Workers Union v. McElroy, 367 U.S. 886, 895 (1961). What the Congress and the President have legitimately deemed appropriate for aliens “on the threshold” of our territory, the judiciary may not contravene. “It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter. . . . As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.” Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (emphasis added). There is a “class of cases” in which “the acts of executive officers, done under the authority of congress, [are] conclusive.” Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 284 (1855). Among that class of cases are those brought by aliens abroad, including those who are “abroad” under the entry doctrine. See Din, 135 S. Ct. at 213940 (Kennedy, J., concurring in the judgment); Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972).
Mandel teaches that the Congress’s “plenary power” over immigration requires the courts to strike a balance between private and public interests different from the due process that typically obtains. The Supreme Court “without exception has sustained” the Congress’s power to exclude aliens, a power

12
“inherent in sovereignty,” consistent with “ancient principles” of international law and “to be exercised exclusively by the political branches of government.” Mandel, 408 U.S. at 76566. Indeed, “over no conceivable subject is the legislative power of Congress more complete.” Id. at 766 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)) (alteration omitted). The Congress’s power to exclude includes the power “to prescribe the terms and conditions upon which [aliens] may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention.” Id. (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895)). Whatever the merits of different applications of due process “were we writing on a clean slate,” “the slate is not clean.” Id. (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). We must therefore yield to the Executive, exercising the power lawfully delegated to him, when he “exercises this power negatively on the basis of a facially legitimate and bona fide reason.” Id. at 770. Moreover, this deference is required even when the constitutional rights of U.S. citizens are affected: we may not “look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of citizens “who seek personal communication with” the excluded alien. Id. Thus in Mandel, the Executive permissibly prohibited an alien communist intellectual to travel to the United States, where he had been scheduled to speak at several universities.
Applying Mandel, the Supreme Court recently approved the Executive’s denial of entry to an Afghan man whose U.S.citizen wife was waiting for him in this country. Din, 135 S. Ct. at 2131 (plurality opinion). The Court in Din was divided not only over whether the wife had any due process interest in her husband’s attempt to immigrate but also over whether that hypothetical interest had been infringed. Compare id.

13
(plurality opinion) (three justices concluding that there is no due process right “to live together with [one’s] spouse in America”), with id. at 2139 (Kennedy, J., concurring in the judgment) (two justices concluding that, even if such a right exists, the Government’s visa-denial notice is all that due process can require). Citing Mandel, Justice Kennedy reasoned that the government’s action in Din was valid, even though it “burden[ed] a citizen’s own constitutional rights,” because it was made “on the basis of a facially legitimate and bona fide reason.” Id. at 2139 (Kennedy, J., concurring in the judgment) (quoting Mandel, 408 U.S. at 770).8 Justice Scalia, writing for himself, the Chief Justice and Justice Thomas, criticized the dissent’s endorsement of the novel substantive due process right asserted by the plaintiff, which he characterized as, “in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.” Id. at 2131 (plurality opinion).
Mandel applies with all the more force here, where a substantive due process right is asserted not by a U.S. citizen, nor by a lawful-permanent-resident alien, nor even by an illegally resident alien, but by an alien minor apprehended attempting to cross the border illegally and thereafter detained by the federal government. If J.D. can be detained indefinitely—which she can be, see Zadvydas, 533 U.S. at 693 (distinguishing Shaughnessy, 345 U.S. 206)—and if she can be returned to her home country to prevent her from engaging in disfavored political speech in this country—which she can be, Mandel, 408 U.S. at 770—and if she can be paroled into the United States for a decade or more, Kaplan, 267 U.S. at 230,
8 Justice Kennedy’s opinion in Din, because it is narrower than the plurality opinion, is controlling. See Marks v. United States, 430 U.S. 188, 193 (1977).

14
register for the draft, Ng Lin Chong v. McGrath, 202 F.2d 316, 317 (D.C. Cir. 1952), and see her parents naturalized, Gonzalez v. Holder, 771 F.3d 238, 239 (5th Cir. 2014), only for her still to be deported with cursory notice, 8 U.S.C. § 1225—then she cannot successfully assert a due process right to an elective abortion.
In concluding otherwise, the Court elevates the right to elective abortion above every other constitutional entitlement. Freedom of expression, Mandel, 408 U.S. at 770, freedom of association, Galvan, 347 U.S. at 523, freedom to keep and bear arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir. 2012), freedom from warrantless search, Verdugo-Urquidez, 494 U.S. at 274-75, and freedom from trial without jury, Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) all must yield to the “plenary authority” of the Congress and the Executive, acting in concert, to regulate immigration; but the freedom to terminate one’s pregnancy is more fundamental than them all? This is not the law.9
9 The panel dissent simply assumed that the Supreme Court’s abortion decisions involving U.S. citizen women—from Roe v. Wade to Whole Woman’s Health—apply mutatis mutandis to illegal alien minors. There is no legal analysis to support this assumption, see generally Panel Dissent 3-6, which is untenable for the reasons I have described. Judge Millett’s subsequent opinion concurring in the Court’s en banc disposition does nothing to address that deficit, offering scarce authority to support its assertion of the thwarting of a “grave constitutional wrong” by the government and none that addresses the antecedent constitutional question, which the Court must decide but which Judge Millett dismisses as waived. Millett Concurrence 2-3 n.1.

15
The panel dissent warned of outlandish scenarios that will follow from staying the TRO,10 Panel Dissent 9, but a stay maintains the legal status quo. The United States remains a signatory to the U.N. Convention Against Torture; our law imposes civil liability on government agents who commit torts and criminal liability on those who commit crimes; and counsel have access to detained alien minors, as have J.D.’s counsel.
I cannot improve on the Chief Justice’s criticism of the “false premise” that
our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “[i]f it is not necessary to decide more, it is necessary not to decide more,” sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving the case at hand, “the court must meet and decide them.”
Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J., concurring) (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C.J.)).
10 My colleague’s characterization of this case, see, e.g., Millett Concurrence 13, gives it an undeservedly melodramatic flavor—and indeed, from the record, especially the sealed affidavit of ORR’s Jonathan White, is contrary to fact. Sealed Supp. to Defs.’ Resp. to Pl.’s Pet. for Reh’g En Banc (Oct. 23, 2017). J.D. may be sympathetic. But even the sympathetic are bound by longstanding law.

16
The Constitution does not, and need not, answer every question but diabetics, rape victims and women whose pregnancies threaten their lives are nevertheless provided for. Contra Panel Dissent 9.
Although the panel dissent found “deeply troubling” the argument “that J.D. is not a person in the eyes of our Constitution,” the argument is nevertheless correct.11 The panel dissent’s contrary conclusion is based on a misunderstanding of the Supreme Court’s immigration due process decisions, including a mistaken reliance on the dissent in Jean v. Nelson, 472 U.S. 846, 875 (1985) (Marshall, J., dissenting). Writing for the Court in Jean, then-Justice Rehnquist expressly declined to opine on the alien plaintiffs’ due process rights, see id. at 857 (majority opinion), much less to hold—as Justice Marshall would have done—that “regardless of immigration status, aliens within the territorial jurisdiction of the United States are ‘persons’ entitled to due process under the Constitution.” The Supreme Court has never so held.12 Contra Panel Dissent 9.
11 J.D.’s “personhood” has nothing to do with it. “American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights and as members of the military establishment are subject to its discipline, including military trials for offenses against aliens or Americans.” Eisentrager, 339 U.S. at 783. No one suggests that members of the military—or here, J.D.—are thereby not “persons.”
12 The panel dissent’s handling of Zadvydas v. Davis also merits clarification. See Panel Dissent 9. Zadvydas is careful to distinguish “an alien who has effected an entry into the United States and one who has never entered” and restates Kaplan’s holding that “despite nine years’ presence in the United States, an ‘excluded’ alien ‘was still in theory of law at the boundary line and had gained no foothold in the United States’” only three sentences before observing, in the

17
It is the panel dissent’s (and now the Court’s) position that will unsettle the law, potentially to dangerous effect. Having discarded centuries of precedent and policy, the majority offers no limiting principle to constrain this Court or any other from following today’s decision to its logical end. If the Due Process Clause applies to J.D. with full force, there will be no reason she cannot donate to political campaigns, despite 52 U.S.C. § 30121’s prohibition on contributions by nonresident foreign nationals inasmuch as freedom of political expression is plainly fundamental to our system of ordered liberty. See Citizens United v. FEC, 558 U.S. 310, 340 (2010). I see no reason that she may not possess a firearm, notwithstanding 18 U.S.C. § 922(g)(5)’s prohibition on doing so while “illegally or unlawfully in the United States,” see Carpio-Leon, 701 F.3d at 975, inasmuch as “the Second Amendment conferred an individual right to keep and bear arms,” District of Columbia v. Heller, 554 U.S. 570, 595 (2008), in recognition of the “basic right” of self-defense, McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). Even the government’s ability to try accused war criminals before U.S. military commissions in theater must be reconsidered as it is premised on the Fifth Amendment’s territoriality requirement, which today, by vacating the stay, the Court has so summarily eroded. See Eisentrager, 339 U.S. at 784-85.
Heedless of the entry doctrine, its extensive pedigree in our own precedent and its controlling effect in this case, the Court today assumes away the question of what (if any) process is due J.D. and proceeds to a maximalist application of some of the most controverted case law in American jurisprudence. It does so over the well-founded objections of an Executive
passage quoted by the panel dissent, that “once an alien enters the country, the legal circumstance changes.” Zadvydas, 533 U.S. at 693 (emphasis added). Zadvydas uses “entry” in its technical sense.

18
authorized to pursue its legitimate interest in protecting fetal life. See Gonzales v. Carhart, 550 U.S. 124, 145 (2007) (“the government has a legitimate and substantial interest in preserving and promoting fetal life”); Casey, 505 U.S. at 853 (recognizing States’ “legitimate interests in protecting prenatal life”); Roe v. Wade, 410 U.S. 113, 150 (1973) (recognizing “the State’s interest—some phrase it in terms of duty—in protecting prenatal life”). Far from faithfully applying the Supreme Court’s abortion cases, this result contradicts them, along with a host of immigration and due-process cases the Court declines even to acknowledge. Garza v. Hargan today takes its place in the pantheon of abortion-exceptionalism cases.
Accordingly, I respectfully dissent.

KAVANAUGH, Circuit Judge, with whom Circuit Judges HENDERSON and GRIFFITH join, dissenting:
The en banc majority has badly erred in this case.
The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence. It is in line with dissents over the years by Justices Brennan, Marshall, and Blackmun, not with the many majority opinions of the Supreme Court that have repeatedly upheld reasonable regulations that do not impose an undue burden on the abortion right recognized by the Supreme Court in Roe v. Wade.1
1 The majority’s decision rules against the Government “substantially for the reasons set forth in” the panel dissent. Given this ambiguity, the precedential value of this order for future cases will be debated. But for present purposes, we have no choice but to

2
To review: Jane Doe is 17 years old. She is a foreign citizen. Last month, she was detained shortly after she illegally crossed the border into Texas. She is now in a U.S. Government detention facility in Texas for unlawful immigrant minors. She is 15-weeks pregnant and wants to have an abortion. Her home country does not allow elective abortions.
All parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow. All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States. One question before the en banc Court at this point is whether the U.S. Government may expeditiously transfer Jane Doe to an immigration sponsor before she makes the decision to have an abortion. Is that an undue burden on the abortion right, or not?
Contrary to a statement in the petition for rehearing en banc, the three-judge panel’s order did not avoid that question. The panel confronted and resolved that question.
First, the Government has assumed, presumably based on its reading of Supreme Court precedent, that an unlawful immigrant minor such as Jane Doe who is in Government custody has a right to an abortion. The Government has also expressly assumed, again presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an abortion. For purposes of
assume that the majority agrees with and adopts the main reasoning for the panel dissent. Otherwise, the majority would have no explanation for the extraordinary step it is taking today. For accuracy, I therefore use the word “majority” when describing the main points of the panel dissent. (If any members of the majority disagreed with any of the main points of the panel dissent, they were of course free to say as much.)

3
this case, all parties have assumed, in other words, that unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.
Second, under Supreme Court precedent in analogous contexts, it is not an undue burden for the U.S. Government to transfer an unlawful immigrant minor to an immigration sponsor before she has an abortion, so long as the transfer is expeditious.
For minors such as Jane Doe who are in U.S. Government custody, the Government has stated that it will not provide, pay for, or otherwise facilitate the abortion but will transfer custody of the minor to a sponsor pursuant to the regular immigration sponsor program. Under the regular immigration sponsor program, an unlawful immigrant minor leaves Government custody and ordinarily goes to live with or near a sponsor. The sponsor often is a family member, relative, friend, or acquaintance. Once Jane Doe is transferred to a sponsor in this case, the Government accepts that Jane Doe, in consultation with her sponsor if she so chooses, will be able to decide to carry to term or to have an abortion.2
The panel order had to make a decision about how “expeditious” the transfer had to be. Given the emergency posture in which this case has arisen, the panel order prudently did not purport to define “expeditious” for all future cases. But the panel order set a date of October 31 – which is 7 days from now – by which the transfer had to occur. For future cases, the term “expeditious” presumably would entail some combination of (i) expeditious from the time the Government learns of the
2 The minor of course also has to satisfy whatever state-law requirements are imposed on the decision to obtain an abortion.

4
pregnant minor’s desire to have an abortion and (ii) expeditious in the sense that the transfer to the sponsor does not occur too late in the pregnancy for a safe abortion to occur.3 In this case, although the process by which the case has arrived here has been marked by understandable confusion over the law and by litigation filed by plaintiff in multiple forums, the panel order concluded that a transfer by October 31 – which is 7 days from now – was permissibly expeditious. This would entail transfer in week 16 or 17 of Jane Doe’s pregnancy, and the Government agrees that she could have the abortion immediately after transfer, if she wishes.
Third, what happens, however, if a sponsor is not found by October 31 in this case? What happens generally if transfer to a sponsor does not occur expeditiously? To begin with, a declaration we just received from the Government states: “while difficult, it is possible to complete a sponsorship process for J.D. by 5 P.M. Eastern on October 31, 2017.” The declaration also lists several ongoing efforts regarding the sponsorship process. The declaration adds that all components of the U.S. Government “are willing to assist in helping expedite the process.”
But if transfer does not work, given existing Supreme Court precedent and the position the Government has so far advanced in this litigation, it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, even though the minor at that point would still be residing in a U.S. Government detention facility. If so, the Government would be in a similar position as it is in with adult women prisoners in federal prison and with
3 To be clear, under Supreme Court precedent, the Government cannot use the transfer process as some kind of ruse to unreasonably delay the abortion past the point where a safe abortion could occur.

5
adult women unlawful immigrants in U.S. Government custody. The U.S. Government allows women in those circumstances to obtain an abortion. In any event, we can immediately consider any additional arguments from the Government if and when transfer to a sponsor is unsuccessful.
In sum, under the Government’s arguments in this case and the Supreme Court’s precedents, the unlawful immigrant minor is assumed to have a right under precedent to an abortion; the Government may seek to expeditiously transfer the minor to a sponsor before the abortion occurs; and if no sponsor is expeditiously located, then it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, depending on what arguments the Government can make at that point. These rules resulting from the panel order are consistent with and dictated by Supreme Court precedent.
The three-judge panel reached a careful decision that prudently accommodated the competing interests of the parties.
By contrast, under the panel dissent, which is “substantially” adopted by the majority today, the Government has to immediately allow the abortion upon the request of an unlawful immigrant minor in its custody, and cannot take time to first seek to expeditiously transfer the minor to an immigrant sponsor before the abortion occurs.4
4 The majority’s order denies the Government’s emergency motion for stay pending appeal and thus does not disturb the District Judge’s injunction (with adjusted dates), which required the Government to facilitate an immediate abortion for Jane Doe. Therefore, unless the Government can somehow convince the District Judge to suddenly reconsider her decision, which is extremely unlikely given the District Judge’s prior ruling on this matter, the majority’s order today necessarily means that the

6
The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor – ordinarily a family member, relative, or friend – before she makes that decision? And keep in mind that the Government is not forcing the minor to talk to the sponsor about the decision, or to obtain consent. It is merely seeking to place the minor in a better place when deciding whether to have an abortion. I suppose people can debate as a matter of policy whether this is always a good idea. But unconstitutional? That is far-fetched. After all, the Supreme Court has repeatedly said that the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.
It is important to stress, moreover, that this case involves a minor. We are not dealing with adults, although the majority’s rhetoric speaks as if Jane Doe were an adult. The law does not always treat minors in the same way as adults, as the Supreme Court has repeatedly emphasized in the abortion context.
The majority points out that, in States such as Texas, the minor will have received a judicial bypass. That is true, but is irrelevant to the current situation. The judicial bypass confirms
Government must allow an immediate abortion while Jane Doe remains in Government custody.

7
that the minor is capable of making a decision. For most teenagers under 18, of course, they are living in the State in question and have a support network of friends and family to rely on, if they choose, to support them through the decision and its aftermath, even if the minor does not want to inform her parents or her parents do not consent. For a foreign minor in custody, there is no such support network. It surely seems reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision in an isolated detention camp with no support network available. Again, that may be debatable as a matter of policy. But unconstitutional? I do not think so.
The majority apparently thinks that the Government must allow unlawful immigrant minors to have an immediate abortion on demand. Under this vision of the Constitution, the Government may not seek to first expeditiously transfer the minor to the custody of an immigration sponsor before she has an abortion.5 The majority’s approach is radically inconsistent with 40 years of Supreme Court precedent. The Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes. These include parental consent laws, parental notice laws, informed consent laws, and waiting periods, among other regulations. Those laws, of course, may have the effect of delaying an abortion. Indeed, parental consent laws in practice can occasion real-world delays of several weeks for the minor to decide whether to seek her
5 The precedential value of the majority’s decision for future cases is unclear and no doubt will be the subject of debate. But one limit appears clear and warrants mention: The majority’s decision requires the Government to allow the abortion even while the minor is residing in Government custody, but it does not require the Government to pay for the abortion procedure itself. The Government’s policy on that issue remains undisturbed.

8
parents’ consent and then either to obtain that consent or instead to seek a judicial bypass. Still, the Supreme Court has upheld those laws, over vociferous dissents. See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting) (“Ohio’s judicial-bypass procedure can consume up to three weeks of a young woman’s pregnancy.”) (citation omitted); Hodgson v. Minnesota, 497 U.S. 417, 465 (1990) (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting) (“[T]he prospect of having to notify a parent causes many young women to delay their abortions . . . .”); H.L. v. Matheson, 450 U.S. 398, 439 (1981) (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting) (“[T]he threat of parental notice may cause some minor women to delay past the first trimester of pregnancy . . . .”).
To be sure, this case presents a new situation not yet directly confronted by the Supreme Court. But that happens all the time. When it does, our job as lower court judges is to apply the precedents and principles articulated in Supreme Court decisions to the new situations. Here, as I see it and the panel saw it, the situation of a pregnant unlawful immigrant minor in a U.S. Government detention facility is a situation where the Government may reasonably seek to expeditiously transfer the minor to a sponsor before she has an abortion.
It is undoubtedly the case that many Americans – including many Justices and judges – disagree with one or another aspect of the Supreme Court’s abortion jurisprudence. From one perspective, some disagree with cases that allow the Government to refuse to fund abortions and that allow the Government to impose regulations such as parental consent, informed consent, and waiting periods. That was certainly the position of Justices Brennan, Marshall, and Blackmun in many cases. From the other perspective, some disagree with cases

9
holding that the U.S. Constitution provides a right to an abortion.
As a lower court, our job is to follow the law as it is, not as we might wish it to be. The three-judge panel here did that to the best of its ability, holding true to the balance struck by the Supreme Court. The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors. The majority’s decision is inconsistent with the precedents and principles of the Supreme Court – for example, the many cases upholding parental consent laws – allowing the Government to impose reasonable regulations so long as they do not unduly burden the right to abortion that the Court has recognized.
This is a novel and highly fraught case. The case came to us in an emergency posture. The panel reached a careful decision in a day’s time that, in my view, was correct as a legal matter and sound as a prudential matter. I regret the en banc Court’s decision and many aspects of how the en banc Court has handled this case.6
6 The Court never should have reheard this case en banc in the first place. As the Supreme Court has instructed, “En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit.” United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689 (1960). Federal Rule 35 provides that rehearing en banc is reserved for cases that involve “a question of exceptional importance.” This Court’s judges have adhered to that principle, even while entertaining doubts about a panel’s application of the law to individual litigants. Here,

10 I respectfully dissent.
on the law, the three-judge panel’s order was unpublished; therefore, it constituted no legal precedent for future cases. As to the facts of this one case, if the panel’s order had blocked Jane Doe from obtaining an abortion, the en banc consideration might be different. If the panel’s order had forced Jane Doe to the cusp of Texas’s 20week abortion cutoff, the en banc consideration might be different. If the panel’s order had significantly delayed Jane Doe’s decision, the en banc consideration might be different.
But the panel’s order did none of those things. The panel was faced with an emergency motion involving an under-developed factual record that is still unclear and hotly contested. Indeed, the parties have submitted new evidence by the hour over the past two days – none of which was presented to the panel. The panel’s unpublished order recognized Jane Doe’s interests without prematurely requiring the Government to act against its interests. The panel decision was prudent and reasonable, given all of the circumstances. Indeed, as noted above, the Government represents that, while difficult, it is possible for Jane Doe to obtain a sponsor by “5:00 P.M. Eastern on October 31, 2017.” This case, as handled by the three-judge panel, therefore was on a path to a prompt resolution that would respect the interests of all parties – until the en banc Court unwisely intervened. This case did not meet the standard for rehearing en banc.

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236

September Term, 2017

Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,

1:17-cv-02122-TSC Filed On: October 20, 2017

Appellee

v.

Eric D. Hargan, Acting Secretary, Health and Human Services, et al.,

Appellants

BEFORE: Henderson,* Kavanaugh, and Millett,** Circuit Judges
O R D E R
Upon consideration of the emergency motion for stay pending appeal, the opposition, the supplement thereto, and the reply; the brief of amici curiae; the administrative stay entered on October 19, 2017; and the oral argument of the parties, it is
ORDERED that the administrative stay be dissolved. It is
FURTHER ORDERED that the District Court=s temporary restraining order entered on October 18, 2017, be vacated as to paragraphs 1 and 2 of the order and that the case be remanded to the District Court.1
The Government argues that, pursuant to standard HHS policy, a sponsor may be secured for a minor unlawful immigrant in HHS custody, including for a minor who is seeking an abortion. The Government argues that this process B by which a minor is released from HHS custody to a sponsor B does not unduly burden the minor=s right under Supreme Court precedent to an abortion. We agree, so long as the process of securing a sponsor to whom the minor is released occurs expeditiously. Cf. Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992); Ohio v. Akron Center for Reproductive
1 As both parties agree, we have jurisdiction over this appeal because the District Court’s temporary restraining order was more akin to preliminary injunctive relief and is therefore appealable under 28 U.S.C. § 1292(a)(1). See Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974).

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236

September Term, 2017

Health, 497 U.S. 502, 513 (1990). The District Court is directed to allow HHS until Tuesday, October 31, 2017, at 5:00 p.m. Eastern Time for a sponsor to be secured for J.D. and for J.D. to be released to the sponsor. If a sponsor is secured and J.D. is released from HHS custody to the sponsor, HHS agrees that J.D. then will be lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law. If a sponsor is not secured and J.D. is not released to the sponsor by that time, the District Court may re-enter a temporary restraining order, preliminary injunction, or other appropriate order, and the Government or J.D. may, if they choose, immediately appeal. We note that the Government has assumed, for purposes of this case, that J.D. B an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States B possesses a constitutional right to obtain an abortion in the United States. It is
FURTHER ORDERED that the emergency motion for stay pending appeal be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to issue the mandate forthwith to the District Court.

Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Robert J. Cavello Deputy Clerk
*Although Circuit Judge Henderson concurs in this order, her reasoning therefor will follow in a separate statement to be filed within five days of the date of this order.
**Circuit Judge Millett would deny the emergency motion for stay. A statement by Judge Millett, dissenting from the disposition of this case, will issue shortly.

2

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 17-5236
Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,

September Term, 2017
1:17-cv-02122-TSC Filed On: October 20, 2017

Appellee

v.

Eric D. Hargan, Acting Secretary, Health and Human Services, et al.,

Appellants

O R D E R

It is ORDERED, on the court’s own motion, that the Clerk issue the attached statement of Circuit Judge Millett, dissenting from the disposition of this case.

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Amy Yacisin Deputy Clerk

MILLET, Circuit Judge, dissenting from the disposition of the case.
There are no winners in cases like these. But there sure are losers. As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason. The flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.
To escape terrible physical abuse in her family, a seventeen-year-old girl known here as J.D. fled her home country and all she has ever known, and all alone undertook a life-imperiling trek for hundreds, perhaps thousands, of miles seeking safety. Unaccompanied minor migrants are among the most vulnerable persons in the world. J.D.’s journey exposed her to a tragically high risk of physical abuse, rape, and sexual exploitation at the hands of other migrants, smugglers, and governmental officials in every country whose territory she crossed.1
After entering the United States, she was detained by federal immigration officials and, at that time, learned that she is pregnant. Alone, resourceless, and facing a perilous future, J.D. was appointed a guardian ad litem and, in compliance with Texas law, obtained a state court order determining that she was (and is) mature enough to decide for herself whether to continue the pregnancy. J.D. has also gone through the mandatory counseling required by Texas law and has reconfirmed her decision. Indeed, the United States does not dispute that J.D. is mature enough to determine her own best interests, nor has it identified any reason that it is not in her best interests to exercise the choice she made, other than a federal agency’s own opposition to abortion. The federal government further represents that it would trust her judgment, if only she had chosen to continue the pregnancy. But J.D. chose not to continue her pregnancy.
The United States has for weeks now refused to release J.D. into the custody of her guardian ad litem to obtain the abortion. It is undisputed that J.D.’s guardian and attorneys—not the federal government—will transport her and bear the costs of
1 See generally UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, WOMEN ON THE RUN (2015), http://www.unhcr.org/5630f24c6.html; UNICEF, HUMAN TRAFFICKING FOR SEXUAL EXPLOITATION PURPOSES IN GUATEMALA (2016), http://www.cicig.org/uploads/documents/2016/Trata_Ing_978_9929_40_829_6.pdf.
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the abortion procedure. The logistics and paperwork of transferring her to the custody of her guardian ad litem will all be handled by a government contractor that is fully willing to do so. TRO Hr’g Tr. at 4:3–5. It will not be done directly by any federal governmental official. And J.D.’s post-procedure medical care will be administered by the contractor, not by government officials themselves. The Department of Health and Human Services’ only task is to refrain from barring its contractor from allowing J.D. to receive the medical care.
The government does not dispute—in fact, it has knowingly and deliberately chosen not to challenge—J.D.’s constitutional right to an abortion. The government instead says that it can have its contractor keep J.D. in what the government calls “close” custody—that is, more restrictive conditions than the contractor imposes on the non-pregnant minors in its care—because of the agency’s own supervening judgment that it would be in J.D.’s best interests to carry the pregnancy to term. If she wants an abortion, the government continues, she must surrender all legal claims to remain in the United States and return to the country of her abuse.
That is wrong and that is unconstitutional.
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which was reaffirmed just last year in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), should decide this case. In Casey, the Court held that a “woman’s right to terminate her pregnancy before viability” is “a rule of law and a component of liberty we cannot renounce.” 505 U.S. at 871. “[I]t follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy” at the pre-viability stage. Id. at 869. That liberty is necessary, the Court added, to protect “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” and “central to the liberty protected” by the Due Process Clause. Id. at 851. The Constitution’s guarantee of due process thus protects that right for “any person,” U.S. CONST. Amend. V, against undue governmental interference. While the government can have its own interest in promoting the continuation of pregnancy and potential life, prior to viability the government may not place a “substantial obstacle” in the way of a woman’s right to decide for herself to discontinue a pregnancy. Whole Woman’s Health, 136 S. Ct. at 2309. Setting up substantial barriers to the woman’s choice violates the Constitution. That is settled, binding Supreme Court precedent.
What is forcing J.D. to carry on this pregnancy is not J.D.’s choice. It is not Texas law. It is the federal government’s refusal to allow an abortion to go forward.
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The government’s refusal to release J.D. from custody is not just a substantial obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.’s right to make her own reproductive choice.
What reason does the federal government offer for taking over J.D.’s decision completely and forcing her to continue an unwanted pregnancy that Texas law permits her to terminate? None that remotely qualifies under the Constitution, or that even makes sense.
First, the government says it does not want to “facilitate” the abortion. But there is nothing for it to facilitate. As noted, J.D. will be transported to the medical procedure by her guardian ad litem. Any expense will be fully born by her guardian and attorneys. All paperwork and medical care will be done by a government contractor. And, as government counsel conceded at oral argument, the court order under review made it unnecessary for the Department of Health and Human Services to decide for itself whether the procedure is in J.D.’s best interests from a federal government perspective.
For those reasons, the government’s reliance on cases recognizing the government’s ability to prefer that pregnancies be taken to term, to provide information about its views, and to require informed consent through processes that do not unduly burden the woman’s choice are of no help. See, e.g., Harris v. McRae, 448 U.S. 297 (1980). The government identifies no case that says the government has a right to flatly prohibit an abortion—to override the woman’s choice—by virtue of keeping her in custody. And to be clear, it is a custody from which the government would willingly release her to attend doctor appointments if she were to continue her pregnancy. (No risk of flight or danger to the community has even been whispered in this case.) So what the government really claims here is not a right to avoid subsidizing the abortion decision; it claims a right to use immigration custody to nullify J.D.’s constitutional right to reproductive autonomy prior to viability.
Second, custody does not empower the government to completely override a woman’s informed and volitional decision to have an abortion. See Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) (striking as unconstitutional a prohibition on abortion for prisoners with exceptions only for express approval and where necessary for the health of the mother); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987) (striking as unconstitutional a policy requiring prisoners to obtain a court ordered release on their own recognizance in order to receive an abortion).
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What is more, the government’s insistence that it must not even stand back and permit an abortion to go forward for someone in some form of custody is freakishly erratic. The government admits that, if J.D. were an adult, she would be held in the custody of Immigration and Customs Enforcement (ICE). That means that the government permits women just a few months older than J.D. who are in ICE custody to obtain an abortion.2 Likewise, it facilitates the process so that women in the custody of the Bureau of Prisons can obtain abortions. 28 C.F.R. § 551.23.
So why is J.D.’s case any different? The government says that, because she is a minor, an official in the Department of Health and Human Services must independently agree that an abortion is in J.D.’s best interests. And this Administration refuses to so agree. Without any explanation other than its opposition to abortion. In so doing, the federal government distrusts the State of Texas, which has conducted a hearing pursuant to state law and authorized J.D. to make the decision herself and to decide whether continuing or terminating the pregnancy is in her own best interest in this respect. J.D. may make that decision without the consent of her “parent, managing conservator or guardian.” Texas Family Code § 33.003(i-3). Notwithstanding the States’ constitutional primacy in matters of domestic relations, e.g., Mansell v. Mansell, 490 U.S. 581, 587 (1989), the United States argues that a federal government official in Washington, D.C. is better positioned and has more authority under the Constitution to prevent an abortion than not only the State, but also the woman and any parent or husband or father of the child. At least, until the woman turns 18. No judicial bypass exists for that federal official’s decision. That is an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage.
Third, the government says that J.D. is free to get an abortion as long as she agrees to voluntarily depart the United States. But the government cannot condition the exercise of a constitutional right by women and girls on their surrender of other legal rights. The fact that J.D. entered the United States without proper documentation does not mean that she has no legal right to stay here to be safe from abuse or persecution. The Statue of Liberty’s promise to those “homeless” “yearning to breathe free” is not a lie.
2 ICE Guidelines, Detention Standard 4.4, Medical Care, available at https://www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf.
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Federal law, for example, expressly permits juvenile immigrants to seek “special immigrant juvenile status” by showing that they are (i) under 21 years of age, (ii) unmarried, and (iii) dependent juveniles “as a result of abuse, abandonment, or neglect.” Yeoboah v. United States Dep’t of Justice, 345 F.3d 216, 221-222 (3d Cir. 2003); see 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11.
Needless to say, conditioning a woman’s exercise of her fundamental right to reproductive choice, see Casey, supra, on the surrender of other legal rights is at the least a substantial obstacle to the exercise of her constitutional right. And by the way, this is a Hobson’s Choice that the federal government demands only of female immigrants.
The majority here accepts none of those arguments by the government. Instead, the court orders J.D. to continue her pregnancy for weeks. Not because she has failed to follow required State processes. She has met every requirement. And not because the majority agrees that the federal government can exercise an unbypassable veto over the reproductive decision of a minor in its custody. The only reason given is an interest in further pursuing the availability of finding a sponsor for J.D.
That too is forbidden by Supreme Court precedent. The desire to find a sponsor for J.D. to release her from detention is understandable. Children are presumably better off with family members or responsible adults than in the custody of a government contractor. But finding a sponsor and allowing her to terminate the pregnancy are not mutually exclusive. Both can proceed simultaneously. So the desire to pursue that process has nothing to do with and is not a reason for forcing J.D. to continue the pregnancy.
Perhaps the majority wants another adult to be involved in J.D.’s reproductive decision. But J.D. has already made that choice with a guardian ad litem by her side, and after all the consent processes demanded by Texas law. To force her to continue the pregnancy just in case someone else comes along with whom J.D. might also consult is to impose layers and layers of consent-style barriers to J.D.’s choice, contrary to settled Supreme Court precedent. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976); Bellotti v. Baird, 443 U.S. 622, 640–642 (1972) (striking statute requiring minor to obtain the consent of both parents prior to an abortion as unduly burdensome). Even a parent or husband does not have the power that federal government officials now claim to wield. See id.
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By the way, that distrust of whether J.D. has made an informed-enough-forthe-federal-government decision is a one-way street. It applies only to the decision to end the pregnancy. Had she chosen to continue the pregnancy, that judgment would have been fully respected and supported by the federal government without any further proceedings. If J.D. is mature enough to decide to continue the pregnancy, then she is mature enough to decide not to continue it as well (as Texas law agrees).
Nor is there any factual basis to think that remand will accomplish anything but a forced continuation of the pregnancy. After at least six weeks of trying, no sponsor has been found. Two were identified, but neither passed muster under Health and Human Services’ review. (We are not told why, and counsel for the government could not say whether the sponsors’ willingness to support J.D.’s abortion decision played a role in those decisions.) And even if a sponsor suddenly appears, that sponsor cannot override J.D.’s choice given that the judicial bypass order makes the consent of a guardian or custodian unnecessary.
This sponsorship process, moreover, is entirely in the control of the Department of Health and Human Services. J.D. cannot control the timing of the decision, nor is there any apparent procedure for challenging a decision or a delayed non-decision. Nor is there any reason to think that a sponsor can be found in short order. If the federal government knew of a sponsor, it would have come forward with that already. The government does not maintain an active list of potential sponsors, and even if one were identified, there is an understandably rigorous vetting process before a child will be handed into the custody of a third party, which includes (i) interviewing prospective sponsors; (ii) sponsors’ completion of extensive paperwork; (iii) a thorough background check, fingerprint check, immigration Central Index System check; (iv) home visits where necessary; and (v) conducting an assessment of the child’s relationships to non-related prospective sponsors.3 The federal government could not tell the court how long that process would take, even assuming a responsible sponsor would suddenly be found.
And in this context, timing profoundly matters. Every day that goes by is another day that the federal government forces J.D. to carry an unwanted pregnancy forward. Days also increase the health risks associated with an abortion procedure. See, e.g., Williams v. Zbaraz, 442 U.S. 1309, 1314–1315 (1979) (Stevens, J., sitting as Circuit
3 https://www.acf.hhs.gov/orr/about/ucs/sponsors.
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Justice) (evidence of an increased risk of “maternal morbidity and mortality” supports a claim of irreparable injury); Linda A. Bartlett, et al., Risk Factors for Legal Induced Abortion—Related Mortality in the United States, 103:4 OBSTETRICS & GYNECOLOGY 729 (April 2004) (relative risk from abortion increases 38% each gestational week). In addition, if J.D. is 17 or 18 weeks along by the time this issue is resolved, the doctors at the South Texas clinic nearest to her (assuming it still has availability) will likely no longer be willing to perform the procedure. That will force J.D. to travel hundreds of miles to the next closest medical provider in North Texas. She will be forced to endure this journey twice, once to repeat a counseling session she has already received and again for the procedure itself.
The sponsorship remand, in short, stands as an immovable barrier to J.D.’s exercise of her constitutional right that inflicts irreparable injury without any justification offered for why the government can force her to continue the pregnancy until near the cusp of viability.
Lastly, the amici suggest that J.D. and all others in the United States without documentation are not “persons” entitled to the protections of the Due Process Clause. The United States government, understandably, has deliberately and knowingly decided not to raise that argument. It is both forfeited and waived. See Wood v. Milyard, 132 S. Ct. 1826, 1832 n.4 (2012); Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004).
Basic principles of constitutional avoidance and circuit precedent direct us not to decide far-reaching constitutional questions that the parties have deliberately and knowingly chosen not to raise. Indeed, we have held that “[t]he grounds for recognizing the forfeiture of arguments are especially strong where the alleged error is constitutional.” Board of County Comm’rs v. Federal Housing Fin. Agency, 754 F.3d 1025, 1031 (D.C. Cir. 2014) (holding that the need for constitutional avoidance is particularly acute where a party’s forfeiture makes deciding the constitutional question neither “necessary nor even advisable”); see Camreta v. Greene, 563 U.S. 692, 705 (2011) (A “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”) (internal quotation marks and citations omitted); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–347 (1936) (Brandeis, J., concurring); Colm v. Vance, 567 F.2d 1125, 1132 n.11 (D.C. Cir. 1977) (concluding that constitutional “avoidance is especially preferred where the nature of the constitutional issue poses a difficult decision with significant ramifications”).
There are few constitutional questions more far-reaching than the proposition that individuals in the United States without legal documentation do not even qualify
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as “persons” under the Constitution. The Supreme Court has long recognized that immigrants who lack lawful status are protected persons under the Due Process Clause. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (even aliens whose “presence in this country is unlawful, involuntary, or transitory [are] entitled to th[e] constitutional protection” of Fifth and Fourteenth Amendment due process); Jean v. Nelson, 472 U.S. 846, 875 (1985) (regardless of immigration status, aliens within the territorial jurisdiction of the United States are “persons” entitled to due process under the Constitution); cf. Plyler v. Doe, 457 U.S. 202, 210 (1982) (children of persons here unlawfully are protected “persons” under the Equal Protection Clause of the Fourteenth Amendment).
The implications of amici’s argument that J.D. is not a “person” in the eyes of our Constitution is also deeply troubling. If true, then that would mean she and everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction). They could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term. Even if pregnancy would kill the Mother, the Constitution would turn a blind eye. Detainees would have no right to any medical treatment or protection from abuse by other detainees. Those with diabetes or suffering heart attacks could be left to die while their governmental custodian watches.
Fortunately, we need not confront that profoundly unsettling argument because no party has raised or briefed it and, as noted, the government has expressly disavowed advancing it. In an emergency proceeding of this nature, we should be particularly hesitant to decide sweeping questions of constitutional law unnecessarily and without any briefing.
* * * * *
J.D. came to the United States without legal documentation. That is not disputed. But the government cannot make a forced pregnancy the sanction for that action. J.D. retains her basic rights to personhood. After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. When they,
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consistent with legal process, decide to continue their pregnancies, that decision should be supported. When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.
I accordingly dissent.
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 Case 1:17-cv-02122-TSC Document 33 Filed 10/25/17 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE FOR J.D. TO PROCEED UNDER PSEUDONYM

Plaintiff moves for leave for the unaccompanied immigrant minor who brings this action

through her guardian ad litem, on behalf of herself and others similarly situated, to proceed by

the pseudonymous initials J.D. (for “Jane Doe”). Defendants do not oppose this motion.

J.D., an unaccompanied immigrant minor in the legal custody of the federal government

who sought and finally obtained an abortion after having been blocked by the federal

government for nearly a month, wishes to proceed under pseudonymous initials to protect her

identity, to preserve the confidentiality that protects medical information, and to keep from the

public eye her exercise of this deeply personal choice. See Decl. of J.D., Ex. 2 to Pl.’s Mem. in

Supp. of App. For TRO & Mot. for PI, Doc. 3-3, (“J.D. Decl”) ¶ 17. In support of this motion,

Plaintiff states as follows:

1. While Fed R. Civ. P. 10(a) generally requires that the complaint “name all

parties,” Local Civil Rule 5.4(f)(2) requires that “the initials of [a minor] child” be used in cases

where “the involvement of a minor child must be mentioned.” Additionally, this Court has

exercised its broad discretion to “allow plaintiffs to proceed under a pseudonym in cases

Case 1:17-cv-02122-TSC Document 33 Filed 10/25/17 Page 2 of 5
involving matters of a sensitive and highly personal nature.” Doe v. Cabrera, 307 F.R.D. 1, 4 (D.D.C. 2014) (citing Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F.Supp.2d 90, 99 (D.D.C. 2008)); see also Yaman v. U.S. Dep’t of State, 786 F.Supp.2d 148, 152-53 (D.D.C. 2011); Doe v. Von Eschenbach, No. 06–2131, 2007 WL 1848013, at *2 (D.D.C. June 27, 2007).
2. In addition to considering whether the justification asserted is to “preserve privacy in a matter of a sensitive or highly personal nature,” courts look to other factors when considering a motion for leave to proceed pseudonymously, including the age of the person whose privacy interests are sought to be protected, whether the action is against the government or a private party, whether identification poses a risk of retaliatory physical or mental harm to the requesting party, and whether there is any risk of unfairness to the opposing party from allowing the action to proceed anonymously. See Doe v. United States Dep’t of State, No. 1:15-CV-01971, 2015 WL 9647660, at *2 (D.D.C. Nov. 3, 2015) (outlining the five factors of the Chao test).
3. The relevant factors in this case weigh heavily in favor of allowing J.D. to proceed under a pseudonym. This lawsuit involves information—including J.D.’s name or real initials, physical location, and immigration status—that would make her easily identifiable and would expose personal, intimate and highly confidential health matters that are deeply private. Indeed, this case centers around J.D.’s abortion decision, which has been recognized as a highly personal medical choice that is customarily enforced through the courts by a plaintiff who proceeds under a pseudonym. See, e.g., Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973); Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 96 (D.D.C. 2015) (citing Chao, 587 F. Supp. 2d at 99, n.8 for the point that “matters of a sensitive and highly personal nature include those dealing with birth control, abortion, homosexuality or the welfare rights of illegitimate children or abandoned families”) (emphasis added).
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4. That J.D. is both a minor and is challenging the actions of the federal government (as opposed to private) defendants, in whose legal custody she remains, provides further grounds for permitting her to proceed anonymously. See Qualls v. Rumsfeld, 228 F.R.D. 8, 11 (D.D.C. 2005) (acknowledging that courts are “more inclined to permit pseudonymous suits by plaintiffs when the government is the defendant or when the plaintiff is a minor.”).
5. J.D. fears that if her name or identity becomes public, she will suffer humiliation and retaliation at the hands of those who oppose abortion rights. See J.D. Decl. at ¶ 17 (“I do not want to proceed in court using my real name because I fear retaliation because I am seeking an abortion. I do not want my family to know that I am seeking an abortion.”). That fear continues now that she has had her abortion, particularly in such a highly-publicized case. Her status as an immigrant may make her particularly vulnerable to these adverse consequences; indeed, courts have routinely recognized this and allowed undocumented immigrants to proceed anonymously. See, e.g., Lozano v. City of Hazelton, 620 F.3d 170, 194-95 (3d Cir. 2010), vacated on other grounds, 131 S. Ct. 2958 (2011); Plyler v. Doe, 457 U.S. 202 (1982) (permitting plaintiffs to proceed anonymously in case addressing the rights of undocumented children).
6. Finally, allowing J.D. to proceed under a pseudonym would not prejudice the Defendants. The Defendants know exactly who she is; it is only from the public that her identity would be protected. And anonymous lawsuits “challenging the constitutional, statutory, or regulatory validity of government activity,” unlike anonymous lawsuits against private parties, have been recognized to “involve no injury to the Government’s reputation.” S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). Nor would granting Plaintiff’s motion harm the public interest. Under Local Civil Rule 5.4(f)(2), because J.D. is a minor, her full name would not be used regardless, so as to protect
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Case 1:17-cv-02122-TSC Document 33 Filed 10/25/17 Page 4 of 5

her privacy; accordingly, permitting her to use pseudonymous initials instead of her own

initials, as further protection against her name or identity becoming public, will not affect the

public’s interest in open judicial proceedings.

7. For the same reasons, the Court should direct that any document revealing J.D.’s

true identity, or any information or distinguishing characteristics which could reveal J.D.’s true

identity, be filed under seal, with a redacted public filing made simultaneously or promptly

thereafter.

CONCLUSION

For the reasons given above, the motion should be granted. A proposed order is filed

herewith.

Date: October 25, 2017

Respectfully submitted,

/s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri (Admitted pro hac vice) Meagan Burrows Jennifer Dalven American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation
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Case 1:17-cv-02122-TSC Document 33 Filed 10/25/17 Page 5 of 5
915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Attorneys for Plaintiff
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 Case 1:17-cv-02122-TSC Document 44 Filed 11/03/17 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of J.D. and others similarly situated,
Plaintiff,
v.
ERIC D. HARGAN, et al.,
Defendants.

)

)

)

)

)

)

)

Civil Action No. 17-cv-02122 (TSC)

)

)

)

)

)

)

)

DEFENDANTS’ MOTION FOR BRIEFING ON CLASS WIDE RELIEF AND STAY PENDING SUPREME COURT PROCEEDINGS
Defendants1 request that this Court stay proceedings relating to class-wide prospective relief pending the conclusion of Supreme Court proceedings that were initiated today. In the alternative, Defendants request that this Court issue a briefing schedule for the parties to address class-wide relief after this Court has acted on Plaintiff’s motion for class certification or provide Defendants with the opportunity to file an opposition to Plaintiff’s motion for preliminary classwide relief on November 20, 2017. Defendants have reached out to Plaintiff regarding the relief requested in this motion. Plaintiff opposes a stay or proceeding to brief this matter following an order on class certification. However, Plaintiff does not oppose permitting Defendants to file an opposition brief to their motion for preliminary class-wide relief by November 20, 2017, as long as Plaintiff is permitted to file by November 30, 2017, a unified reply brief addressing both Defendants’ opposition to preliminary class-wide relief and Defendants’ opposition to class certification.

1 This motion is filed on behalf of Defendants in their official capacities only.

Case 1:17-cv-02122-TSC Document 44 Filed 11/03/17 Page 2 of 5
a. On October 14, 2017, Plaintiff filed motions for a temporary restraining order and preliminary injunction. ECF Nos. 3 & 5. The motion for a temporary restraining order addressed individual relief for Jane Doe and the motion for a preliminary injunction sought relief for Jane Doe and class-wide injunctive relief. ECF Nos. 3 & 5. Plaintiffs simultaneously asked this Court to shorten the time in which to respond to the motion for a temporary restraining order. ECF No. 5. This Court then entered minute order providing that “Defendants’ response is due at 7:00 p.m. on 10/17/2017,” allowing for a reply, and scheduling a “[p]reliminary [i]njunction hearing . . . for 10/18/2017.” ECF, MINUTE ORDER/Set/Reset Deadlines.
Pursuant to the highly expedited deadlines called for by the circumstances and the Court’s order, the government timely filed on October 17, 2017, a pleading styled as an “Opposition to Plaintiff’s Application for a Temporary Restraining Order and Motion for a Preliminary Injunction.” ECF 10. That pleading addressed the request for relief on behalf of Jane Doe, but did not address the request for class-wide relief. Indeed, plaintiff had not yet filed its motion for class certification, which was filed on October 18, 2017.
This Court held a hearing on October 18, 2017—see ECF, Minute Entry (“Preliminary Injunction Hearing held”)—and entered an injunctive order later that day addressing Jane Doe’s individual relief. See ECF 20. The government appealed that order, which the court of appeals treated as an appealable preliminary injunction. See Court of Appeals Order at 2 (remanding to district court to “amend the effective dates . . . of its injunction”).
In the meantime, Defendants were not sure whether they were entitled to file a separate response to Plaintiff’s motion for a preliminary injunction seeking class-wide relief. Defendants initially believed a separate response was due on October 27, 2017, see ECF No. 35 (seeking extension for such a response), but then determined that, given the government’s response filed
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on October 17, 2017, a second response would be improper absent further order of the Court, see ECF No. 36 (errata).
Additionally, the government has now requested Supreme Court review of the court of appeals ruling, and has asked the Supreme Court to, among other things, order this Court to dismiss Plaintiff’s claims for class-wide prospective relief as moot. See Hargan v. Garza, No. -----, Pet. at 24-26, 29 (pet. filed Nov. 3, 2017) (attached as Exhibit A).
b. Defendants request that this Court stay proceedings relating to class-wide prospective relief pending the Supreme Court’s consideration of the government’s petition for certiorari. In the certiorari petition filed today, Defendants explained that because the appeal was mooted by Plaintiff—who had prevailed below—“this Court should apply its longstanding practice of vacating the judgment of the court of appeals and remanding the case to that court with instructions to direct the district court to dismiss all claims that are now moot, i.e., all claims for prospective relief regarding pregnant unaccompanied minors.” Pet. at 19. A ruling by the Supreme Court could resolve the aspects of this matter relating to the request for class-wide prospective relief, and given the pendency of that petition, we think it appropriate for this Court to await a determination by the Supreme Court of whether it will order dismissal of class-wide prospective claims based on mootness.
c. If this Court does not stay proceedings pending Supreme Court review, Defendants request that this Court issue a briefing schedule to the parties to address class-wide relief after this Court has acted on Plaintiff’s motion for class certification. In the alternative, Defendants request the opportunity to file an opposition to Plaintiff’s motion for preliminary class-wide relief on November 20, 2017.
3

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The issue of class-wide relief is significant, and given the exigency of proceedings relating to Jane Doe, the Defendants have not yet had the opportunity to brief the issues relating to class-wide relief. Defendants are also concerned that they are not entitled to file a second pleading addressing class-wide relief given that Defendants’ initial responsive pleading was styled as an “Opposition to Plaintiff’s Application for a Temporary Restraining Order and Motion for a Preliminary Injunction” (ECF 10); Plaintiff’s reply and this Court’s hearings were described as addressing the request for a preliminary injunction (ECF 15; ECF Set/Reset Deadlines/Hearings (10/17/2017); ECF Minute Entry (10/18/2017)); and the court of appeals asserted jurisdiction by treating this Court’s order as a preliminary injunction. Court of Appeals Order at 2.
Absent a stay, the best way to address class-wide relief, we submit, would be for this Court to first address Plaintiff’s request for class certification and, if that class is certified, for the parties to then address the propriety and nature of appropriate relief for that class through a new request for preliminary relief and a response thereto. The scope and nature of the certified class—and whether it is appropriate to certify a class in the first instance—is highly relevant to the briefing of preliminary remedies for that class, and we think the parties and the Court would benefit from briefing that addressed class relief once this Court acts on the class certification motion. If the Court agrees, we request that it issue a schedule following its ruling on the motion for class certification.
In the alternative, Defendants request the opportunity to file an opposition to Plaintiff’s motion for preliminary class-wide relief on November 20, 2017, simultaneously with our response to the request for class certification. As discussed, the request for class-wide preliminary relief is significant, and the Defendants should have a full opportunity to respond to
4

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that request. At the same time, because the issues will be related to the request for class certification, if this Court determines that it will consider both requests simultaneously, it should give the Defendants up until the time of its response to class certification to address the motion seeking preliminary class-wide relief.

Dated: November 3, 2017 Attorneys for Defendants

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation
PAPU SANDHU Assistant Director Office of Immigration Litigation
BY: /s/ Joseph A. Darrow JOSEPH A. DARROW Trial Attorney Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 P: (202) 598-2445, F: (202) 305-7000 joseph.a.darrow@usdoj.gov

5

Case 1:17-cv-02122-TSC Document 44-1 Filed 11/03/17 Page 1 of 36
No.
In the Supreme Court of the United States
ERIC HARGAN, ET AL., PETITIONERS v.
ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
NOEL J. FRANCISCO Solicitor General Counsel of Record
CHAD A. READLER Acting Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
ALEX K. HAAS CATHERINE H. DORSEY
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

Case 1:17-cv-02122-TSC Document 44-1 Filed 11/03/17 Page 2 of 36
QUESTION PRESENTED
Whether, pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950), this Court should vacate the court of appeals’ judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.
(I)

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PARTIES TO THE PROCEEDING
The petitioners are Eric D. Hargan, Acting Secretary, U.S. Department of Health and Human Services; Stephen Wagner, Acting Assistant Secretary, Administration for Children and Families; and Scott Lloyd, Director, Office of Refugee Resettlement, in their official capacities.
The respondent is Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated.
(II)

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TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Constitutional and statutory provisions involved...................... 2 Statement ...................................................................................... 2 Reasons for granting the petition ............................................. 17 Conclusion ................................................................................... 29 Appendix A — Court of appeals order (Oct. 20, 2017).......... 1a Appendix B — Court of appeals order (Oct. 20, 2017).......... 4a Appendix C — Court of appeals order (Oct. 24, 2017)........ 18a Appendix D — Amended temporary restraining order
(Oct. 24, 2017)............................................ 65a Appendix E — Findings of fact in support of amended
temporary restraining order (Oct. 24, 2017)............................................ 68a Appendix F — Temporary restraining order (Oct. 18, 2017)............................................ 72a Appendix G — Constitutional and statutory provisions..... 75a

Cases:

TABLE OF AUTHORITIES

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ............................................................... 21
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) .............. 7, 23, 24
Board of Sch. Comm’rs v. Jacobs, 420 U.S. 128 (1975).............................................................. 25
Burke v. Barnes, 479 U.S. 361 (1987) .................................. 20 Camreta v. Greene, 563 U.S. 692 (2011) .................. 20, 23, 24
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) ............................................................... 25
Davis v. Federal Election Comm’n, 554 U.S. 724 (2008).............................................................. 24

(III)

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IV

Cases—Continued:

Page

Davis, In re, 289 U.S. 704 (1933).......................................... 26 Disbarment of Moore, In re, 529 U.S. 1127 (2000) ............ 27 Discipline of Shipley, In re, 135 S. Ct. 779 (2014) ............. 26 Duke Power Co. v. Greenwood Cnty., 299 U.S. 259
(1936) .................................................................................... 20 Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66 (2013) ............................................................... 25 Gerstein v. Pugh, 420 U.S. 105 (1975) ................................. 25 Gilbert, In re, 276 U.S. 294 (1928)........................................ 26 Great W. Sugar Co. v. Nelson, 442 U.S. 92 (1979) ............. 20 Hall, In re, 57 S. Ct. 107 (1936) ............................................ 26 Harris v. McRae, 448 U.S. 297 (1980) ................................. 22 Karcher v. May, 484 U.S. 72 (1987) ..................................... 20 Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016) ......................................................... 20 Maher v. Roe, 432 U.S. 464 (1977) ....................................... 22 Moore, In re, 177 F. Supp. 2d 197 (S.D.N.Y. 2001) ............ 26 Planned Parenthood v. Casey, 505 U.S. 833 (1992) ........... 22 Sibley, In re, 63 S. Ct. 203 (1942) ......................................... 26 Town of Chester v. LaRoe Estates, Inc.,
137 S. Ct. 1645 (2017) ......................................................... 23 Trump v. Hawaii, No. 16-1540, 2017 WL 4782860
(Oct. 24, 2017) ...................................................................... 20 U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) ................................................... 19, 20, 21 United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ................................................... 20, 23, 24 Webster v. Reproductive Health Servs.,
492 U.S. 490 (1989).............................................................. 22

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V

Constitution, statutes, regulation, and rule:

Page

U.S. Const.: Amend. I......................................................................... 6, 7 Establishment Clause ................................................. 7 Amend. V..........................................................passim, 75a
8 U.S.C. 1229c .......................................................................... 4 8 U.S.C. 1232(b)(1)........................................................... 3, 81a 8 U.S.C. 1232(c)(3) ........................................................... 3, 84a 8 U.S.C. 1232(c)(3)(A)...................................................... 4, 84a 8 U.S.C. 1232(c)(3)(B)...................................................... 4, 84a 8 C.F.R. 1240.26....................................................................... 4 Sup. Ct. R. 8.2 ........................................................................ 26

Miscellaneous:
Email from Pets. Att’y to Resp. Att’y (Oct. 24, 2017, 18:26 EST) .................................................. 13
Email from Resp. Att’y to Pets. Att’y: (Oct. 24, 2017, 18:28 EST)................................... 13, 17, 27 (Oct. 24, 2017, 19:17 EST)............................................... 13 (Oct. 25, 2017, 10:00 EST)............................................... 15
Letter from David D. Cole, Nat’l Legal Dir., Am. Civil Liberties Union, to Noel J. Francisco, Solicitor Gen. 2 (Oct. 30, 2017)..............14, 15, 16, 17, 27, 28
Letter from Noel J. Francisco, Solicitor Gen., to David D. Cole, Nat’l Legal Dir., Am. Civil Liberties Union (Oct. 26, 2017) .......................................................... 16
Office of Refugee Resettlement, U.S. Dep’t of Health & Human Servs., Children Entering the United States Unaccompanied (Jan. 30, 2015): Section 1, https://www.acf.hhs.gov/orr/ resource/children-entering-the-unitedstates-unaccompanied-section-1#1.1 ........................ 3

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VI

Miscellaneous—Continued:

Page

Section 2, https://www.acf.hhs.gov/orr/ resource/children-entering-the-unitedstates-unaccompanied-section-2 ................................ 3
Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ..................................................................... 23

Case 1:17-cv-02122-TSC Document 44-1 Filed 11/03/17 Page 8 of 36
In the Supreme Court of the United States
No. ERIC HARGAN, ET AL., PETITIONERS
v. ROCHELLE GARZA, AS GUARDIAN AD LITEM TO
UNACCOMPANIED MINOR J.D.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of petitioners, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the en banc court of appeals (App., infra, 18a-64a) is not published in the Federal Reporter, but is available at 2017 WL 4791102. A prior opinion of the court of appeals (App., infra, 1a-3a) is unreported. Another prior opinion of the court of appeals is not published in the Federal Reporter but is available at 2017 WL 4707112.
JURISDICTION
The judgment of the court of appeals was entered on October 24, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
(1)

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2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 75a-94a.
STATEMENT
On the afternoon of October 24, the lower courts held that the government had to immediately facilitate the pre-abortion counseling and abortion sought by an unaccompanied alien minor who was apprehended unlawfully entering the United States, who has declined to request voluntary departure to her home country, and who thus is in the government’s custody. Under Texas state law, the counseling and abortion must be performed by the same physician and separated by at least 24 hours. When Ms. Doe could not receive counseling from a physician on the evening of October 24, her representatives informed the government that her appointment would be moved to the morning of October 25, pushing the abortion procedure to October 26. The government asked to be kept informed of the timing of Ms. Doe’s abortion procedure, and one of respondent’s counsel agreed to do so.
Based on those representations, the government informed this Court’s Clerk’s Office and respondent’s counsel that it would file a stay application the following morning, October 25. At that point, by their own account, Ms. Doe’s representatives did three things: they secured the services of Ms. Doe’s original physician (who had provided counseling the previous week), moved her appointment from 7:30 to 4:15 a.m. on the morning of October 25, and changed the appointment from counseling to an abortion. Although Ms. Doe’s representatives informed the government of the change

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in timing, they did not inform the government of the other two developments—which kept the government in the dark about when Ms. Doe was scheduled to have an abortion. The government did not learn that critical fact until shelter personnel arrived with Ms. Doe at the clinic for her early-morning appointment on October 25. The government’s efforts to reach respondent’s counsel were met with silence, until approximately 10 a.m. Eastern Time, when one of respondent’s counsel notified the government that Ms. Doe had undergone an abortion.
1. When an unaccompanied alien minor enters the United States, the U.S. Department of Health and Human Services (HHS) is normally responsible for the minor’s care and custody pending completion of immigration proceedings. See 8 U.S.C. 1232(b)(1). HHS exercises this responsibility through its Office of Refugee Resettlement (ORR), which contracts with various private entities that operate shelters and detention centers for these minors. See ORR, HHS, Children Entering the United States Unaccompanied: Section 1 (Jan. 30, 2015), https://www.acf.hhs.gov/orr/resource/childrenentering-the-united-states-unaccompanied-section1#1.1.
Generally, a minor has the immediate opportunity to identify an adult sponsor in the United States to whom the minor can be released, with preference given to the minor’s relatives within the United States (if any), though non-relatives can qualify to be sponsors. HHS promptly pursues that opportunity and works with the minor and her family to help identify and consider potential sponsors. See 8 U.S.C. 1232(c)(3); ORR, HHS, Children Entering the United States Unaccompanied: Section 2 (Jan. 30, 2015), https://www.acf.hhs.gov/orr/resource/ children-entering-the-united-states-unaccompanied-

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section-2; 10/23/17 Jonathan White Decl. (10/23/17 White Decl.) 2-4 (filed under seal; redacted version filed Oct. 31, 2017).
Once a prospective sponsor applies, HHS determines whether the applicant is “capable of providing for the child’s physical and mental well-being,” which must “include verification of the [applicant’s] identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. 1232(c)(3)(A). HHS also may, and in some cases must, conduct a home study. 8 U.S.C. 1232(c)(3)(B). If no suitable sponsor is found, and the minor does not voluntarily depart the country, see 8 U.S.C. 1229c; 8 C.F.R. 1240.26, the minor normally remains in an HHS-contracted shelter or other facility until the age of 18.
2. Jane Doe is 17 years old. In early September 2017, she was apprehended at the border as an unaccompanied minor entering the United States without authorization, and was placed in HHS custody. She is currently cared for by a federal grantee at a shelter in Texas. App., infra, 68a.
Following her arrival, Ms. Doe was given a medical examination, after which she was informed that she was pregnant. App., infra, 69a. Shelter staff also asked Ms. Doe about persons who might sponsor her in the United States. 10/23/17 White Decl. 2. Two were identified and called, but they chose not to apply. Ibid. Upon learning this, Ms. Doe informed shelter staff that she desired to return to her country of origin, but she did not file formal papers to do so. Ibid. Shelter staff continued to work with Ms. Doe, those potential sponsors, and other

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family members by phone to help Ms. Doe identify other potential sponsors. Id. at 3.
Ms. Doe subsequently requested an abortion, which under Texas law cannot be provided to a minor absent parental consent or a judicial bypass. App., infra, 69a; Compl. 4. On September 25, 2017, a Texas state court granted Ms. Doe a bypass, and also appointed a guardian ad litem and an attorney ad litem. App., infra, 69a; 10/13/17 Brigitte Amiri Decl. (Amiri Decl.) 1.
Texas law further requires that an individual who seeks to have an abortion receive counseling at least 24 hours in advance of the procedure, and that the counseling be conducted by the same doctor who will perform the procedure. App., infra, 70a. The Director of ORR evaluated Ms. Doe’s request for an abortion and declined to permit Ms. Doe to leave her shelter for purposes of attending the state-mandated counseling session or obtaining an abortion. 10/17/17 Jonathan White Decl. (10/17/17 White Decl.) 2-3; Amiri Decl. 2.
As the ORR’s Deputy Director for Children’s Programs explained, authorizing Ms. Doe to attend such appointments would entail facilitating an abortion. HHS or shelter staff would need to (and did) attend trips to any appointment to maintain ORR’s custody of Ms. Doe. And even if HHS or the shelter did not transport Ms. Doe to the abortion clinic, approval would still require that HHS devote time and staff towards drafting and executing approval documents and providing direction to the shelter on its role in connection with the procedure, and would require that HHS expend resources to monitor Ms. Doe’s health after the abortion. 10/17/17 White Decl. 3.
Although ORR thus denied Ms. Doe’s request that ORR facilitate an abortion, it continued to look for other

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avenues to accommodate her. Shelter staff continued to pursue information Ms. Doe provided about potential sponsors. 10/17/17 White Decl. 4. Indeed, at the time Ms. Doe ultimately underwent an abortion, the government believed that it had identified a potentially suitable sponsor, and it was assisting in compiling the materials for that person’s application. See 10/23/17 White Decl. 3. At that time, the government believed that the process could be completed within a week, and it intended to so inform this Court in its stay application. See id. at 4.
3. On October 13, 2017, Ms. Doe filed the instant lawsuit, via her guardian ad litem, in the District Court for the District of Columbia. Compl. 11.1 Ms. Doe sought to bring the action “as a class” on behalf of herself and “all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” Ibid. Her complaint alleged six claims: four on behalf of Ms. Doe and the putative class, seeking injunctive relief based on alleged violations of their Fifth Amendment rights to privacy and liberty (Count 1), their First Amendment rights to freedom of speech
1 Ms. Doe had previously attempted to challenge the government’s actions by seeking to join a lawsuit in the Northern District of California, ACLU v. Burwell, 16-cv-3539, Docket entry No. 1 (June 24, 2016), and by bringing a habeas corpus action in Texas state court against the shelter and its employees, In re Doe, 17-DLL-6644 (107th Jud. Dist. Oct. 5, 2017). The district court in the federal case held that it lacked venue over Ms. Doe’s claims. 16-cv-3539 Docket entry No. 102, at 4 (Oct. 11, 2017). The state habeas corpus case was removed to the Southern District of Texas, Doe v. International Educational Services (I.E.S.), Inc., 17-cv-211, and subsequently abated until further notice, 17-cv-211 Order 1 (Oct. 18, 2017).

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(Count 2), their Fifth Amendment right to “informational privacy” (Count 3), and their rights under the Establishment Clause (Count 4); and two under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on behalf of Ms. Doe only, based on alleged violations of the Fifth Amendment (Count 5), and the First Amendment (Count 6). Compl. 12-15.
At the same time she filed the complaint, Ms. Doe sought a temporary restraining order (TRO) on several claims, including the claim that HHS was violating her Fifth Amendment rights by allegedly prohibiting her from obtaining state-required counseling and an abortion. D. Ct. Doc. 1-10 (Oct. 13, 2017). The government opposed the TRO, arguing that because Ms. Doe had the option of requesting voluntary departure or of finding a sponsor, HHS had not imposed an undue burden on any abortion right. D. Ct. Doc. 10, at 1-2 (Oct. 17, 2017).
Following an emergency hearing on October 18, the district court granted the TRO. The court ordered the government to transport Ms. Doe (or allow her guardian ad litem or attorney ad litem to transport her) to the nearest abortion provider for counseling and an abortion within two to three days. App., infra, 72a-73a. In addition, the court restrained the government from forcing Ms. Doe to reveal her abortion decision to anyone, or revealing it to anyone themselves; retaliating against Ms. Doe for her decision to have an abortion; or retaliating or threatening to retaliate against the shelter for any actions it might take to facilitate Ms. Doe’s access to counseling or an abortion. Id. at 74a. Con-

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sistent with the TRO, Ms. Doe received the state-mandated counseling on October 19. Resp. C.A. Opp. to Mot. for Stay 8 n.5 (Oct. 19, 2017).
4. The government immediately filed a notice of appeal and an emergency motion for a stay pending appeal, focusing on Ms. Doe’s Fifth Amendment claim. Gov’t Emergency Mot. for Stay 7-8 & n.3 (Oct. 18, 2017). A panel of the D.C. Circuit heard argument on the morning of Friday, October 20. C.A. Oral Arg. Mins.
Later that day, a majority of the panel issued a brief order vacating the portion of the TRO that required HHS to transport Ms. Doe (or to allow her to be transported) to either pre-abortion counseling or an abortion appointment. App., infra, 1a-2a.2 The panel majority recognized that if Ms. Doe, who was then approximately 15 weeks pregnant, secured a sponsor, she would be able to lawfully obtain an abortion on her own. Id. at 2a; see id. at 69a-71a. As the panel majority explained, so long as the sponsorship process “occurs expeditiously,” it “does not unduly burden the minor’s right” to obtain an abortion. Id. at 2a. The panel majority therefore directed the district court to allow until Tuesday, October 31—a period of 11 additional days—for Ms. Doe to identify, and the government to vet and approve, a sponsor. Ibid. If a sponsor could not be approved in that time, then the district court could issue any “appropriate order,” and the parties could appeal. Ibid.
2 The panel majority agreed with the parties that the court had jurisdiction because the TRO “was more akin to preliminary injunctive relief and [wa]s therefore appealable under 28 U.S.C. § 1292(a)(1).” App., infra, 2a n.1.

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Judge Henderson indicated that she concurred in the order, with her reasoning to come within five days. App., infra, 3a. Judge Millett dissented. Id. at 4a-17a.
5. At approximately 10 p.m. on Sunday, October 22, Ms. Doe filed an emergency petition for rehearing en banc and an emergency motion to recall the mandate in the court of appeals, as well as two new declarations in the district court that were supplied to the court of appeals (one of which raised, for the first time in this proceeding, the suggestion that Ms. Doe might have a claim to remain in the United States because she alleged abuse in her home country). Pet. for Reh’g 12. At approximately 11 p.m. on October 22, the D.C. Circuit ordered the government to respond to the petition for rehearing by 11 a.m. the next morning. 10/22/17 C.A. Order 1. The government did so (and also submitted a sealed declaration calling into question Ms. Doe’s abuse allegations). Gov’t Response to Pet. for Reh’g.
At approximately 3 p.m. on October 24, a majority of the en banc court of appeals granted the petition for rehearing and denied the government’s motion for a stay pending appeal because “the stringent requirements for a stay” had not been met. App., infra, 19a. The court also affirmed the substance of the district court’s injunctive relief, remanding the case to the district court “for further proceedings to amend the effective dates in * * * its injunction.” Ibid.; see id. at 19a n.1. The en banc majority did not specify its precise reasoning, but stated that it reached its decision “substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett,” id. at 19a, which had argued that “[t]he government’s refusal to release J.D. from custody” constituted an undue burden and was tantamount to an “unqualified denial of and flat

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prohibition” on the procedure, id. at 8a (Millett, J., dissenting). Judge Millett concurred in the en banc order, reiterating and expanding upon her prior reasoning. Id. at 21a-34a.
Judge Kavanaugh, joined by Judges Henderson and Griffith, dissented on the ground that “[t]he threejudge panel reached a careful decision that prudently accommodated the competing interests of the parties” and was “dictated by Supreme Court precedent.” App., infra, 59a (Kavanaugh, J., dissenting). Judge Henderson would have further held that because Ms. Doe is in the United States illegally, and has not developed substantial connections here, she “cannot avail herself of the constitutional rights afforded those legally within our borders,” including the right to an abortion. Id. at 43a (Henderson, J., dissenting).
6. At approximately 4 p.m. on October 24, Ms. Doe’s guardian ad litem filed in the district court an emergency motion to amend the TRO. The motion requested that the TRO be modified to provide that the government make Ms. Doe available “promptly and without delay, on such dates, including today, * * * as shall be specified by [her] guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure.” D. Ct. Doc. 27, at 1 (Oct. 24, 2017). According to the motion, the guardian ad litem “has been informed, and represents to the [district c]ourt, that a qualified physician is available at the nearest clinic today, and will be available to perform the procedure tomorrow.” Id. at 2.
At approximately 5 p.m., without giving the government an opportunity to respond, the district court granted the motion, adopting Ms. Doe’s proposed language and ordering the government to make Ms. Doe

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immediately available for counseling and an abortion. App., infra, 66a. The remainder of the modified TRO was identical to that court’s original order. Id. at 67a. At approximately 10:30 p.m. that same night, the court entered findings of fact in support of the amended TRO. Id. at 68a-71a.
7. The government planned to seek an emergency stay from this Court before Ms. Doe could obtain an abortion. In light of counsel’s representations that no abortion would take place until October 26, the government informed this Court and respondent’s counsel that it would file an emergency application for a stay on the morning of October 25. Sometime later that evening, Ms. Doe’s appointment was changed so that instead of obtaining counseling at 7:30 a.m. on October 25, she would undergo an abortion at 4:15 a.m. that morning, just hours before the government planned to file its stay application. Respondent’s representatives did not notify the government or the shelter of the changed nature of the appointment.
a. As explained above, under state law, Ms. Doe was required to attend a counseling session 24 hours before any abortion procedure, and the counseling had to be with the same doctor who would perform the abortion. App., infra, 70a.3 Ms. Doe attended counseling on Thursday, October 19, while the first TRO was in effect. Resp. C.A. Opp. to Mot. for Stay 8 n.5. Respondent’s counsel, however, had represented that the doctor who
3 See, e.g., D.C. Cir. Oral Arg. 1:13:45-1:15:10, https://www.cadc. uscourts.gov/recordings/recordings.nsf/DocsByMonday?OpenView &StartKey=201710&Count=37&scode=3 (quoted at App., infra, 31a n.6 (Millett, J., concurring)); Resp. C.A. Opp. to Mot. for Stay 89; D. Ct. Doc. 1-10, at 1.

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was available to perform an abortion (and provide counseling) during the week of October 16 was different than the doctor who would be available to perform the procedure during the week of October 23, when the D.C. Circuit ultimately ruled. Id. at 8-9 (“This week, the doctor at the health care facility in South Texas provides abortions until 17.6 weeks. But next week the doctor only provides abortion to 15.6 weeks.”).
Counsel’s representations to the district court on October 24 confirmed that Ms. Doe would need to participate in a new counseling session and then wait a day before she could undergo an abortion. Counsel asked the court to order the government to make Ms. Doe available “promptly and without delay, on such dates, including today, * * * in order to obtain the counseling required by state law and to obtain the abortion procedure.” D. Ct. Doc. 27, at 1 (emphasis added). Counsel stated: “Plaintiff has been informed, and represents to the Court, that a qualified physician is available at the nearest clinic today, and will be available to perform the procedure tomorrow.” Id. at 2 (emphasis added). Counsel thus reaffirmed to the court that for Ms. Doe to obtain an abortion, she would need to complete a two-step, 24-hour process.
b. Following the district court’s entry of the modified TRO at approximately 5 p.m. on October 24, counsel made similar representations directly to the government. First, Ms. Doe’s guardian ad litem, attorney ad litem, and counsel from the American Civil Liberties Union (ACLU) all requested that the Texas shelter transport Ms. Doe to the clinic immediately. See Assistant U.S. Att’y Decl. 2 & Exs. B-D (Nov. 1, 2017) (AUSA Decl.) (lodged with the Court). At 6:13 p.m. on October 24, government counsel contacted respondent’s counsel

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by telephone, confirming that she was being transported to the clinic and asking to be apprised of the timing of any appointments. Government counsel followed up with an email to respondent’s counsel, confirming that the shelter was transporting Ms. Doe to the clinic on October 24, and asking to be notified of the timing of “tomorrow’s procedure.” Email from Pets. Att’y to Resp. Att’y (Oct. 24, 2017, 18:26 EST) (on file with the Office of the Solicitor General). At 6:28 p.m., respondent’s counsel confirmed receipt of the email and phone call, and assured government counsel that “[a]s soon as we understand the clinic’s schedule tomorrow we will let you know.” Email from Resp. Att’y to Pets. Att’y (Oct. 24, 2017) (on file with the Office of the Solicitor General).
Roughly 45 minutes later, respondent’s counsel informed government counsel that the doctor was not able to stay for the appointment that evening, which would be rescheduled for the following morning at 7:30 a.m. Email from Resp. Att’y to Pets. Att’y (Oct. 24, 2017, 19:17 EST) (on file with the Office of the Solicitor General). Around the same time, Ms. Doe’s attorney ad litem separately informed the assigned Assistant United States Attorney (AUSA) that Ms. Doe’s previous doctor was not available; that it was no longer feasible for Ms. Doe to receive counseling that evening (October 24); and that as a result the abortion could not take place until October 26. Ms. Doe’s attorney ad litem further stated that the doctor had agreed to stay for an extra day, in order to perform the abortion on October 26. See AUSA Decl. 2.
c. These representations made clear that the appointment rescheduled for the morning of October 25 would be for counseling, with an abortion to follow no

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earlier than the morning of October 26. By their own acknowledgement, respondent’s counsel shared that understanding. See Letter from David D. Cole, Nat’l Legal Dir., Am. Civil Liberties Union, to Noel J. Francisco, Solicitor Gen. 2 (Oct. 30, 2017) (ACLU Letter) (lodged with the Court) (“We did not become aware, until late in the evening of October 24, that it might be possible for the physician who had counseled Ms. Doe on October 19 to return to the clinic to perform the abortion on the morning of October 25. It was not clear until the morning of October 25 that he would in fact be able to do so.”).
Based on the representations of counsel that no abortion would occur until October 26, at approximately 9 p.m. on October 24, the government informed the Clerk’s Office and respondent’s counsel that it would file the application the following morning (October 25), which would allow the Court a full day to consider it before Ms. Doe could undergo an abortion. Respondent’s counsel confirmed receipt of the email stating the government’s intent to file the next morning and did not indicate any plans for an abortion to occur before then.
Later that night, Ms. Doe’s guardian ad litem informed the Texas shelter and the AUSA that Ms. Doe’s appointment had been moved to 4:15 a.m. Central Time. AUSA Decl. 4 & Ex. K. The email did not explain the reason for the change nor state that the appointment was now for an abortion. Ibid. In addition, neither the AUSA nor the shelter was instructed to refrain from giving Ms. Doe food or drink before the appointment, as would have been medically indicated if the appointment were for an abortion. Id. at 4 & Exs. I-J. Although the change in the appointment time caused shelter staff to

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wonder later that night whether the nature of the appointment also might have changed, see id. Ex. M, they were never told that the early-morning appointment would be for an abortion rather than counseling.
Respondent’s counsel has now explained that, unbeknownst to the government, at some point “late in the evening of October 24,” they became “aware” that “it might be possible for the physician who had counseled Ms. Doe on October 19 to return to the clinic to perform the abortion on the morning of October 25.” ACLU Letter 2. Respondent’s counsel has further explained that at some point early in the morning of October 25, it became “clear” that the original doctor “would in fact be able to” perform the procedure that morning. Ibid. Significantly, however, respondent’s counsel did not notify the government of this possibility—notwithstanding their earlier acquiescence in a request to keep government counsel informed of the timing of the “procedure” and the government’s subsequent notice of its intent to seek relief in this Court that same morning.
At 4:15 a.m. Central Time on the morning of October 25, shelter staff arrived with Ms. Doe at the clinic. At 4:30 a.m. Central Time, shelter staff emailed government personnel that the clinic had indicated that Ms. Doe would be undergoing an abortion. AUSA Decl. 4-5 & Ex. M. After receiving that information, government counsel twice emailed respondent’s counsel to inquire as to the nature of the appointment. Two hours after the government’s first email was sent, counsel informed the government that Ms. Doe “had the abortion this morning.” Email from Resp. Att’y to Pets. Att’y (Oct. 25, 2017; 10:00 EST) (on file with the Office of the Solicitor General). Because these developments precluded

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any possibility of effective relief, the government did not file its stay application with the Court.
8. On October 26, the Solicitor General wrote to the National Legal Director of the ACLU, which represents respondent in this case. Letter from Noel J. Francisco, Solicitor Gen., to David D. Cole, Nat’l Legal Dir., Am. Civil Liberties Union 1-4 (Oct. 26, 2017) (SG Letter) (lodged with the Court). The Solicitor General recounted the above series of events, ibid., and expressed his concern that “ACLU attorneys misled the Department of Justice about when Jane Doe would undergo an abortion, thereby preventing the Department from seeking Supreme Court review,” id. at 1. The Solicitor General stated that “[i]f such conduct occurred, it would be contrary to those attorneys’ obligations and responsibilities as officers of the Court,” ibid., and he requested “the favor of a response * * * so that I may determine whether to raise this incident with the Court,” id. at 4.
On the morning of Monday, October 30, the ACLU responded to the Solicitor General’s letter. ACLU Letter 1-2. In its view, the government’s concern is “unfounded,” because ACLU attorneys “were in touch with the government about the timing of Ms. Doe’s appointments for the sole purpose of ensuring that the shelter would abide by the court order to transport her at the appropriate times,” and “[c]ounsel never agreed to provide the government information about the nature of Ms. Doe’s appointments or to give the government advance notice of the imminence of the abortion.” Id. at 1. The ACLU did not address government counsel’s request on October 24 to be notified of the timing of Ms. Doe’s abortion, or ACLU counsel’s response that “[a]s

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soon as we understand the clinic’s schedule tomorrow we will let you know,” p. 13, supra.
The ACLU further explained that, as noted above, it “did not become aware, until late in the evening of October 24, that it might be possible for the physician” who had previously counseled Ms. Doe to “perform the abortion on the morning of October 25,” and that “[i]t was not clear until the morning of October 25 that he would in fact be able to do so.” ACLU Letter 2. The ACLU did not say whether those events were a response to the government’s notice that it intended to file a stay application with the Court the following morning, and thus whether respondent’s counsel attempted to prevent this Court’s review. The ACLU also did not dispute that Ms. Doe’s representatives had repeatedly informed the courts and government counsel that Ms. Doe would need to attend a new counseling session with a new doctor and wait 24 hours before she could obtain an abortion; that Ms. Doe’s attorney ad litem had specifically informed the government that the abortion would take place on October 26; and that respondent’s counsel was aware that the United States would seek a stay from this Court on the morning of October 25. Without addressing any of those facts, the ACLU concluded that it was “under no legal, ethical, or self-imposed obligation” to “facilitate the government’s ability” to seek a stay from this Court by informing the government that Ms. Doe would obtain an abortion in the early morning hours of October 25. Ibid.
REASONS FOR GRANTING THE PETITION
This appeal presented the question whether the government must facilitate access to an abortion that is not medically necessary to preserve the life or health of an

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unaccompanied alien minor who was apprehended unlawfully entering the United States, who declines to request voluntary departure to her home country, who has not yet identified a qualified sponsor to whom she can be released, and who thus is in the government’s custody. The answer to that question is no. Under this Court’s case law, the government may adopt policies favoring life over abortion; it is not obligated to facilitate abortion; and the government acts permissibly when it does not place an undue burden in a woman’s path. Here, the government imposed no undue burden: Ms. Doe contended that the government’s actions as her custodian were obstructing her access to an abortion in violation of the Fifth Amendment, but she could have left government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States. Given those options, the government was under no obligation to facilitate Ms. Doe’s abortion.
The divided en banc court of appeals reached the contrary conclusion on the afternoon of October 24. Over the dissent of three judges, without holding oral argument, and after requiring the government to oppose the petition for rehearing en banc literally overnight, the en banc court vacated the panel majority’s decision that had put in place a modest period of time— 11 additional days—for the parties to secure a sponsor to whom Ms. Doe could be released. That narrow ruling, which had the potential to permit Ms. Doe to access an abortion without requiring the government to facilitate it, was far more appropriate in the circumstances of this case than the en banc court’s sweeping constitutional rule and the district court’s order for immediate relief that would be final rather than “temporary.”

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The government therefore was prepared to seek emergency relief from this Court, both because it disagreed with the merits of the en banc court’s ruling and because HHS believed it had identified a potential sponsor. But Ms. Doe’s counsel ensured that did not happen. Although they had represented to the government that, in light of Texas law and logistical constraints, no abortion would occur until the morning of October 26—and although the government had relied on those representations in deciding to file its application for a stay on the morning of October 25 and informed respondent’s counsel of its intent to so file—Ms. Doe then underwent an abortion a few hours before the government would seek relief from this Court. Respondent’s counsel provided no notice to the government of that critical development, despite their previous acquiescence in government counsel’s request that the government be kept informed of the scheduling of the abortion “procedure.”
In light of these circumstances, and the fact that the appeal was mooted before this Court’s review based on the “unilateral action of the party who prevailed below,” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994), this Court should apply its longstanding practice of vacating the judgment of the court of appeals and remanding the case to that court with instructions to direct the district court to dismiss all claims that are now moot, i.e., all claims for prospective relief regarding pregnant unaccompanied minors.
1. The portions of the TRO addressed by the court of appeals—those requiring the government to make Ms. Doe available for pre-abortion counseling and an abortion, and restraining the government from interfering with her access to those services—are now moot.

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According to respondent’s counsel, Ms. Doe has undergone an abortion. Moreover, no exception to the mootness doctrine applies. The government did not voluntarily cease its conduct, and Ms. Doe’s claims regarding access to abortion are not capable of repetition yet evading review because there is no “reasonable expectation that the same complaining party” (i.e., Ms. Doe) will again become pregnant and seek an abortion while in government custody. Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (citation omitted).
2. When, as here, an appeal becomes moot “while on its way [to this Court] or pending [a] decision on the merits,” this Court’s “established practice” is to “vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); see id. at 39 n.2; see also, e.g., Trump v. Hawaii, No. 16-1540, 2017 WL 4782860 (Oct. 24, 2017); Karcher v. May, 484 U.S. 72, 82 (1987); Burke v. Barnes, 479 U.S. 361, 365 (1987); Duke Power Co. v. Greenwood Cnty., 299 U.S. 259, 267 (1936) (per curiam). This Court has followed that approach in “countless cases,” Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam), and it is the “normal” procedure in the event of mootness, Camreta v. Greene, 563 U.S. 692, 713 (2011). The rule serves important purposes: “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance” or the “unilateral action of the party who prevailed below,” “ought not in fairness be forced to acquiesce in the judgment.” Bonner Mall, 513 U.S. at 25. At the same time, “[v]acatur ‘clears the path for future relitigation’ by eliminating a judgment the loser was stopped from

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opposing on direct review.” Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) (citation omitted). The case for vacatur is especially strong here for three reasons.
a. First, the United States was denied review by the actions of opposing counsel. Vacatur is fundamentally an “equitable remedy” that recognizes “[a] party who seeks review of the merits of an adverse ruling * * * ought not in fairness be forced to acquiesce in the judgment” when “mootness results from unilateral action of the party who prevailed below.” Bonner Mall, 513 U.S. at 25; see, e.g., Arizonans for Official English, 520 U.S. at 75 (“agree[ing]” with State’s position that “[i]t would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment”) (citation omitted; second, third, and fourth brackets in original). That is precisely what would happen absent vacatur in this case. Ms. Doe obtained a favorable judgment from the court of appeals, and then mooted that judgment by undergoing an abortion hours before her counsel knew the government would seek review in this Court, and without counsel’s notifying the government of the changed nature of the early morning appointment. In these circumstances, the government should not be forced to “acquiesce in the judgment.” Bonner Mall, 513 U.S. at 25.
b. Second, vacatur is appropriate because, absent mootness, this Court likely would have granted certiorari. The en banc majority’s disposition of Ms. Doe’s Fifth Amendment claim warranted this Court’s review. Over the dissent of three judges, the en banc majority ordered the government to make Ms. Doe—an unaccompanied minor who was apprehended entering the

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United States unlawfully, who has refused to request voluntary departure to her home country, who has not yet located a qualified sponsor to whom she can be released, and who thus is in government custody— immediately available for counseling and an abortion. It ordered that irreversible procedure in the form of “temporary” or “preliminary” relief; without holding oral argument; and after requiring the government to oppose the motion for rehearing en banc literally overnight. The en banc majority did so even though there is no precedent from this Court (or any court) holding that the federal government imposes an “undue burden” by refusing to facilitate access to an abortion for a pregnant unaccompanied minor who retains the freedom to leave government custody by returning to her home country or by helping to identify a suitable sponsor. Moreover, this Court has repeatedly made clear that the government generally need not facilitate abortions. See Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Webster v. Reproductive Health Servs., 492 U.S. 490, 509 (1989); Harris v. McRae, 448 U.S. 297, 315-316 (1980); Maher v. Roe, 432 U.S. 464, 471-474 (1977).
The en banc majority jettisoned the panel majority’s far more moderate decision, which gave the parties a brief additional period of time to secure an acceptable sponsor for Ms. Doe. As the panel majority recognized, such a short pause in the proceedings would not have constituted an undue burden, and it had the potential to remove any alleged government obstacle to Ms. Doe’s obtaining an abortion, while also ensuring that the government was not required to facilitate the procedure. In fact, at the time the en banc court ruled, we had been informed by HHS that a potential sponsor had been

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identified, HHS was assisting that person with the application, and HHS believed that the approval process could be completed within a week (assuming the individual applied and was qualified). The government intended to so inform this Court in its stay application. Given the extraordinary circumstances here, the government respectfully submits it is reasonably likely that the Court would have granted the government’s stay application and its petition for a writ of certiorari.4
c. Third, this Court explained in Munsingwear that “a judgment, unreviewable because of mootness,” should not be permitted to “spawn[] any legal consequences.” 340 U.S. at 41; see Camreta, 563 U.S. at 713. Here, the court of appeals’ decision on Ms. Doe’s nowmoot claim for injunctive relief could have significant legal consequences: Ms. Doe also seeks damages for her Fifth Amendment claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Compl. 14-15; Town of Chester v. LaRoe Estates, Inc., 137 S. Ct. 1645, 1651 & n.3 (2017)
4 The United States has argued that when a case has become moot after the court of appeals’ ruling, but before a petition for certiorari is granted, this Court ordinarily should decline to vacate the decision below if the case would not have warranted review on the merits. See Stephen M. Shapiro et al., Supreme Court Practice § 5.13, at 357-358, 968 n.33 (10th ed. 2013); see, e.g., Gov’t Amicus Br. at 10, McFarling v. Monsanto Co., 545 U.S. 1139 (2005) (No. 04-31). For the reasons discussed above, this Court likely would have granted the government’s stay application and its petition for certiorari; vacating the decision below therefore would be fully consistent with the practice the government has urged in other cases. In any event, even if review were not otherwise warranted under different circumstances, vacatur still would be appropriate in the circumstances of this case because the government’s reasonable reliance on the representations of opposing counsel frustrated the government’s opportunity to seek this Court’s review.

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(noting that “standing is not dispensed in gross” because a case or controversy must exist with respect to each claim) (quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 734 (2008)). Although the individual defendants have additional defenses to that claim, their future litigation should not be constrained by the D.C. Circuit’s “preliminary” adjudication of the merits of the Fifth Amendment claim. Camreta, 563 U.S. at 713.
Moreover, Ms. Doe, through her guardian ad litem, brought this case as a putative class action on behalf of herself and “all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” Compl. 11. If the decision below is not vacated—and the putative class members’ claims are not dismissed, see pp. 25-26, infra—it could be applied to those claims for relief. That would squarely implicate one of vacatur’s key purposes: “clear[ing] the path for future relitigation of the issues between the parties.” Munsingwear, 340 U.S. at 40. The en banc court’s decision should not be left on the books for use by these and other plaintiffs.
3. Under Munsingwear, this Court’s general practice is to vacate the decision below and remand with instructions that the case be dismissed. 340 U.S. at 39. Here, however, Ms. Doe’s abortion did not necessarily moot all of her claims: Counts 5 and 6 seek damages under Bivens, supra, and some of her claims for prospective relief involve the government’s potential postabortion conduct, such as disclosure of the fact that an abortion has occurred. See Compl. 14-15. Thus, the appropriate disposition is for the Court to vacate the judg-

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ment below and remand to the court of appeals with instructions to direct the district court to dismiss Ms. Doe’s claims for injunctive relief insofar as they relate to the government’s treatment of pregnant unaccompanied minors. Ms. Doe is no longer pregnant and has no ongoing interest in those claims.
That Ms. Doe filed this complaint as a putative class action does not change the analysis. See Compl. 11. A putative class action, or particular claims within it, generally will become moot once the named plaintiff’ s claims no longer present a live controversy. Board of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam). This Court has recognized an exception when “the named plaintiff’ s individual claim becomes moot after” the district court rules on class certification, Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013), but that rule does not apply here because this case never reached that juncture. Ms. Doe filed her motion for class certification just one week before she obtained an abortion; the government has not yet responded to the motion; and the district court has not yet ruled on it. D. Ct. Doc. 18 (Oct. 18, 2017); see Genesis Healthcare Corp., 569 U.S. at 75.
Nor are the putative class claims regarding pregnant minors saved by the further exception for claims that “are ‘so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.’ ” Genesis Healthcare Corp., 569 U.S. at 76 (citation omitted); see County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (applying exception in context of individuals held without probable cause determinations); Gerstein v. Pugh, 420 U.S. 105, 110 n.11

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(1975) (same). We simply do not know whether the district court could have ruled on Ms. Doe’s motion for class certification before her interest in the claims for pre-abortion injunctive relief otherwise would have expired. The district court’s consideration was cut short not because Ms. Doe’s pregnancy came to term, or even because she obtained an abortion after an orderly appellate process. It was cut short because Ms. Doe underwent an abortion one week after filing her motion for class certification—and just hours before (as her counsel knew) the government would seek further review.
4. Finally, in light of the extraordinary circumstances of this case, the government respectfully submits that this Court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel—either directly by this Court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review. See Sup. Ct. R. 8.2 (“After reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar.”).5
5 See also, e.g., In re Discipline of Shipley, 135 S. Ct. 779 (2014) (order to show cause why attorney should not be sanctioned for his conduct as a member of the Bar of this Court); In re Sibley, 63 S. Ct. 203 (1942) (same); In re Hall, 57 S. Ct. 107 (1936) (disbarring attorney for conduct unbecoming a member of the Bar of this Court); In re Davis, 289 U.S. 704 (1933) (order to show cause for same); In re Gilbert, 276 U.S. 294 (1928) (imposing sanctions for same); In re Moore, 177 F. Supp. 2d 197, 199 (S.D.N.Y. 2001) (sug-

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Respondent’s counsel have taken the position that they did not have “any legal or ethical obligation” to keep the government informed of the timing of Ms. Doe’s abortion. ACLU Letter 1. Perhaps that would be true if there had not been numerous filings and representations by counsel about the timing of that procedure. But they repeatedly represented—to courts and government counsel—that Ms. Doe would need to attend a new counseling session with a new doctor and wait 24 hours before she could obtain an abortion. Those representations were part of their request for immediate relief from the district court, which the court granted shortly after the court of appeals’ ruling. Once the district court did so, government counsel asked to be notified of the timing of Ms. Doe’s abortion, and respondent’s counsel responded that “[a]s soon as we understand the clinic’s schedule tomorrow we will let you know,” p. 13, supra. Ms. Doe’s attorney ad litem separately informed the AUSA that the doctor had agreed to stay an extra day, so that the abortion would take place on October 26.
It was against that backdrop that the government decided to file its stay application on the morning of October 25, which should have allowed a full day for this Court to consider the application (and the government’s accompanying request for an administrative stay) before Ms. Doe underwent an abortion. The government informed respondent’s counsel of its intent to file the next morning. As the ACLU has now explained, at some point thereafter—and perhaps as a response to the government’s notice—Ms. Doe’s representatives secured
gesting that this Court’s order debarring attorney, In re Disbarment of Moore, 529 U.S. 1127 (2000), was based on conduct unbecoming a member of the Bar).

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the services of her original physician and changed the purpose of her October 25 morning appointment. See ACLU Letter 2. Given the dealings between the parties, respondent’s counsel at least arguably had an obligation to notify the government of this incredibly significant development. Applicants for emergency relief—for instance, in the capital context—often face imminent action by the opposing party, and in the absence of judicial relief, the challenged action generally may proceed. But that does not mean that those planning to take authorized action may covertly change its timing, without notice to those affected by the change and in full awareness that opposing counsel has relied upon previous representations. The government recognizes that respondent’s counsel have a duty to zealously advocate on behalf of their client, but they also have duties to this Court and to the Bar. It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted. At the least, this Court may wish to seek an explanation from counsel regarding this highly unusual chain of events.

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CONCLUSION
The petition for a writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded to the court of appeals with instructions to remand to the district court for dismissal of all claims for prospective relief regarding pregnant unaccompanied minors.
Respectfully submitted.

NOVEMBER 2017

NOEL J. FRANCISCO Solicitor General
CHAD A. READLER Acting Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
ALEX K. HAAS CATHERINE H. DORSEY
Attorneys

 
 Case 1:17-cv-02122-TSC Document 49 Filed 11/09/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of J.D. and others similarly situated,
Plaintiff,
v.
ERIC D. HARGAN, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 17-cv-02122 (TSC) ) ) ) ) ) ) )

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR BRIEFING ON CLASS WIDE RELIEF AND STAY PENDING
SUPREME COURT PROCEEDINGS Defendants1 hereby submit this reply to Plaintiff’s response (ECF No. 46) opposing a stay of proceedings pending the conclusion of Supreme Court proceedings in Eric D. Hargan, et al., v. Rochelle Garza, as Guardian ad Litem to Unaccompanied Minor J. D., No. 17-654. Plaintiff’s opposition to Defendants’ motion ignores the Government’s mootness argument and fails to provide a persuasive reason for why these proceedings should not be stayed. As set forth in Defendants’ motion (ECF No. 45), a ruling by the Supreme Court will likely resolve this matter because the class claims for prospective relief became moot when Plaintiff obtained an abortion after which she no longer maintained an interest in challenging the ability of pregnant unaccompanied minors in detention to obtain an abortion. Accordingly, this Court should stay proceedings relating to class-wide prospective relief pending the Supreme Court’s consideration

1 This reply is filed on behalf of the defendants solely in their official, not individual, capacities. See, e.g., Auleta v. United States Dep’t of Justice, No. CV 11-2131 (RWR), 2015 WL 738040, at *4 (D.D.C. Feb. 20, 2015).
1

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of the government’s petition for certiorari. At the very least, it should allow full briefing on the class certification motion – which will address many of these concerns – prior to moving ahead in considering preliminary injunctive relief.
Plaintiff brushes aside the Defendants’ mootness argument claiming the certiorari petition “lacks merit” but then fails to address the merits of the argument. As set forth in the certiorari petition, “[a] putative class action, or particular claims within it, generally will become moot once the named plaintiff’s claims no longer present a live controversy.” Petition at 25 (citing Board of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam)). Here, Plaintiff’s claim that Defendants must facilitate her abortion became moot when she obtained that relief. And the fact that she, the sole class representative, obtained that relief prior to a class being certified makes the class claims for prospective relief moot. Petition at 25 (citing Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013)).
Thus, there is no continuing case or controversy concerning Plaintiff’s challenge to Defendants’ “policy[,]” and she “has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.” Id. at 78. Given that the Defendants’ certiorari petition raises a strong mootness argument, the Court should reject Plaintiff’s invitation to forge ahead and wade into complex issues regarding class certification and class-wide injunctive relief where there is a significant question as to whether the Court has authority to do so, and where the very question at issue is pending before the Supreme Court. U.S. Const., Art. III, § 2 (limiting federal-court jurisdiction to “cases” and “controversies”) ; Spencer v. Kemna, 523 U.S. 1, 18 (1998) (mootness “deprives [the court] of [its] power to act]”).
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In an attempt to justify denial of a stay of proceedings, Plaintiff relies on speculative assertions. Specifically, Plaintiff’s assertion that “there are hundreds of pregnant unaccompanied minors in Defendants custody each year,” in support of her contention that entry of a preliminary injunction is a “matter of considerable magnitude and urgency” is unsubstantiated. ECF No. 46 at 2. In Plaintiff’s Motion for Class Certification (ECF No. 18), she relies almost exclusively on a report that “[i]n 2014, there were approximately 726 pregnant” [unaccompanied minors in Defendant’s] custody; in 2015, there were 450; and in 2016, 682.” ECF No. 18 at 4.
But Plaintiff’s reliance on this report suffers from a fatal flaw because it does not establish that there are any pregnant unaccompanied minors currently in custody who seek pregnancy termination, and who will be impacted, in any way, by Defendants’ purported “policy.” Rather, in broad-brush fashion, Plaintiff simply assumes that the purported “constitutional rights of young women” will be violated yet has provided nothing to show that “hundreds of pregnant unaccompanied minors” will elect to have an abortion, will choose not to voluntarily depart, will not have an appropriate sponsor available, will satisfy state laws relating to abortion, will be at a point in the pregnancy where an abortion is permissible, will have completed any judicial bypass of parental notification and consent, will have access to funds to pay for the abortion, and then will be denied based on the “policy” at issue in Plaintiff’s case. Indeed, despite this speculation, the current, identified number of putative class members is one, J.D., whose claim, as discussed above, is now moot. Accordingly, because Plaintiff is the only identifiable putative class member, and there is no live controversy, this Court lacks jurisdiction to entertain Plaintiff’s class claims for injunctive relief insofar as they relate to Defendants’ treatment of pregnant unaccompanied minors. Because the Supreme Court is considering that very issue in this case, a stay is warranted.
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November 9, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation
PAPU SANDHU Assistant Director Office of Immigration Litigation
BY: /s/ Sabatino F. Leo SABATINO F. LEO Trial Attorney Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 514-8599 Fax: (202) 616-4975 sabatino.f.leo@usdoj.gov
Attorneys for Defendants

4

 
 Case 1:17-cv-02122-TSC Document 46 Filed 11/07/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR BRIEFING ON CLASS-WIDE RELIEF AND FOR STAY PENDING SUPREME COURT APPEAL

Plaintiff opposes Defendants’ attempt (ECF No. 44) to delay adjudication of Plaintiff’s

motion for class certification (ECF No. 18) and motion for a preliminary injunction (ECF No. 5)

for the following reasons:

1. Defendants first ask this Court to stay the district court proceedings until the U.S.

Supreme Court rules on their recent petition for certiorari. Defendants’ petition for certiorari

lacks merit, but will be pending for several months even if denied. There is no automatic stay in

the meantime; the mandate has issued, and this Court has jurisdiction. Granting a “stay [of] civil

proceedings in the interest of justice and ‘in light of the particular circumstances of the case’” is

a matter committed to this Court’s discretion, Bush v. Semyenova, 255 F. Supp. 3d 235 (D.D.C.

2017) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980)), and the

equities do not favor a stay in these circumstances, where the members of the plaintiff class will

suffer irreparable injury in far less time than it will take the Supreme Court to act on the petition.1

1 Defendants’ principal complaint in their petition is that Plaintiff thwarted their ability to seek Supreme Court review. Ironically, if this Court proceeds and rules in Plaintiff’s favor,

Case 1:17-cv-02122-TSC Document 46 Filed 11/07/17 Page 2 of 4
Defendants have given no indication that they will refrain from obstructing class members’ access to abortion while their petition for certiorari is pending, despite the fact that the en banc Court recognized that their policy is likely unconstitutional. In fact, all indications are to the contrary, as Defendants continue to defend their policy in their petition. As noted in Plaintiff’s Motion for Class Certification, there are hundreds of pregnant unaccompanied minors in Defendants’ custody each year. See Pls.’ Mot. for Class Certification at 4, ECF No. 18 (noting that in 2016, there were 682 pregnant unaccompanied minors in ORR custody, relying on attached exhibits). Entry of a preliminary injunction to protect the class is therefore a matter of considerable magnitude and urgency, for the same reason that relief for J.D. was urgent. Defendants should not be permitted to delay this case, and inflict their unconstitutional policies on the putative class in the interim. This Court should not facilitate Defendants’ desire to put this case on hold for several months while they continue to violate the constitutional rights of young women.
2. Alternatively, Defendants ask this Court to first rule on the motion for class certification, and subsequently receive additional briefing on the motion for a preliminary injunction. This approach would likewise delay adjudication of the preliminary injunction for weeks, without justification, and would cause irreparable harm to the putative class, as discussed supra. There is no reason why the Court cannot proceed simultaneously with the motion for class certification and preliminary injunction as to the class. Indeed, contrary to Defendants’ unsupported claim that the “scope and nature” of the class is “highly relevant” to the preliminary injunction, Defs.’ Mot. at 4, the class is in the same position as J.D., namely, they are subject to
Defendants will have an opportunity to seek interlocutory review from the Supreme Court by taking an appeal from the grant of a preliminary injunction as to the class and then petitioning for certiorari if the court of appeals affirms.
2

Case 1:17-cv-02122-TSC Document 46 Filed 11/07/17 Page 3 of 4

Defendants’ unconstitutional policies that obstruct abortion access. There is nothing particular or unique about the class that would need to be resolved prior to the preliminary injunction. If Defendants believe there is, they can make their arguments in their simultaneously filed briefs. At a minimum, if the Court remains uncertain about the precise “scope and nature” of the class, it can enter an order provisionally certifying the class at the same time that it preliminarily enjoins the Defendants from blocking class members’ access to abortion. See Plaintiff’s Motion for Class Certification (ECF No. 18) at 1 n.2 (noting this Court’s provisional class certification in conjunction with granting preliminary injunction in the context of an immigration detention case in R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 179-80 (D.D.C. 2015)).
3. Lastly, Defendants ask this Court for leave to file an opposition to Plaintiff’s motion for a preliminary injunction as to the class on November 20, 2017. Plaintiff does not object, as long as Plaintiff is allowed until November 30, 2017, to file a unified reply in further support of both her motion for class certification and preliminary injunction.
CONCLUSION For the reasons given above, the Defendants’ motion should be denied. A proposed order is filed herewith.

Date: November 7, 2017

Respectfully submitted,
/s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org
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Case 1:17-cv-02122-TSC Document 46 Filed 11/07/17 Page 4 of 4
smichelman@acludc.org
Brigitte Amiri* Meagan Burrows Jennifer Dalven American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Jennifer L. Chou Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Admitted pro hac vice
Attorneys for Plaintiff
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Case 1:17-cv-02122-TSC Document 46-1 Filed 11/07/17 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

[PROPOSED] ORDER DENYING DEFENDANTS’ MOTION FOR STAY, AND GRANTING DEFENDANTS’ REQUEST FOR LEAVE TO FILE ADDITIONAL BRIEFING OPPOSING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Upon consideration of Defendants’ Motion for Briefing on Class Wide Relief and Stay Pending Supreme Court Proceedings (ECF No. 44), it is hereby
ORDERED that Defendants’ motion to stay or otherwise delay adjudication of the preliminary injunction and class certification is denied;
ORDERED that Defendants may file an opposition to Plaintiff’s preliminary injunction as to the class on November 20, 2017, and Plaintiff’s reply in further support of her motion for class certification and motion for preliminary injunction is due November 30, 2017.

Date: ________________________

Tanya S. Chutkan United States District Judge

 
 Case 1:17-cv-02122-TSC Document 53 Filed 11/20/17 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

_________________________________________ )

No. 17-cv-02122-TSC

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION1

This Court should deny Plaintiff’s Motion for Class Certification because Plaintiff fails to

satisfy several elements of Rule 23 of the Federal Rules of Civil Procedure, which sets forth the

standards for certification of a class. Foremost, Plaintiff’s only class representative, Ms. Jane

Doe, has had an abortion and is not pregnant. Yet Plaintiff still asks this Court to certify a class

action on behalf of “all pregnant unaccompanied immigrant minors [‘UCs’] who are or will be in

the legal custody of the federal government,” and prevent Defendants “from obstructing,

hindering, blocking or otherwise interfering with [UC’s] access to abortion.” ECF No. 18 at 1.

Plaintiff cannot meet the adequacy of representation, commonality, numerosity, and typicality

1 The Defendants have requested that this Court stay proceedings pending Supreme Court review, consider the motion for class certification prior to addressing class relief, or as an alternative authorize the Defendants to file a response to the motion for a preliminary injunction to address the class-wide relief sought by Plaintiffs. The Court has not acted on that request, which we here reiterate. We also note that Defendants’ response to the complaint or a dispositive motion to dismiss is due December 12, 2017 under the Federal Rules of Civil Procedure.
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Case 1:17-cv-02122-TSC Document 53 Filed 11/20/17 Page 2 of 28
requirements of Rule 23(a). Additionally, Plaintiff has failed to establish that at least one of the requirements of Rule 23(b) is met. Consequently, Rule 23 precludes certification.
Ms. Doe is not an adequate representative under Rule 23(a)(4) because: (1) she cannot vigorously prosecute the interests of the proposed class, and (2) her interests are not aligned with other individuals in the class. As an initial matter, Ms. Doe is no longer a member of the class she seeks to represent; her claim against the United States became moot when she obtained an abortion. Following that abortion, she no longer maintains a legally cognizable interest in challenging the alleged Office of Refugee Resettlement (“ORR”) “policy” regarding the unrestricted ability of an unaccompanied minor in ORR custody to obtain an abortion, and thus, she cannot be a vigorous advocate for the class she now seeks to represent. Nor are her interests typical of the class; the overwhelming majority of pregnant UCs that have been in the custody of ORR in fiscal year (“FY”) 2017 have sought to carry their pregnancies to full term, and used the counseling and medical services provided by ORR. Indeed, there are currently no pregnant UCs in ORR’s care who seek to terminate their pregnancies. Plaintiff’s suggestion that future UCs will be different is pure speculation. Consequently, Ms. Doe is not an adequate class representative, and this Court should deny Plaintiff’s Motion on that ground alone.
Even if Ms. Doe were an adequate representative under Rule 23(a)(4), her other arguments for class certification are similarly fraught with problems. Ms. Doe has failed to establish commonality and typicality under Federal Rules 23(a)(2) and (a)(3) because she has not articulated a question of law or fact capable of generating a common answer for the putative class as a whole under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Rather, she gloms together ORR “policies and practices” that allegedly “interfere, obstruct or prevent pregnant UCs from accessing” abortions and related services, and argues that the lawfulness of those “policies
2

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and practices” is a question that will yield answers common to the class as a whole. ECF. No. 18 at 7. Yet there are no pregnant minors in ORR’s care who seek to terminate their pregnancies and the vast majority of the putative class members are not even seeking access to abortions and related services. And even assuming that some future putative class members might seek such access, they would invariably diverge in age and have different medical and psychological histories and presentations, familial situations, abilities and desire to voluntarily depart the United States and opportunities for expeditious release to sponsors. Moreover, they would be physically present in different states with different abortion laws, and may be in different phases of judicial proceedings to bypass parental notification or consent requirements. Facts like these are different for different potential class members and are relevant to applying the undue burden analysis, as the D.C. Circuit majority acknowledged. See Garza v. Hargan, No. 17-5236 (D.C. Cir. Oct. 24, 2017) (en banc order) at 3-5. Because no putative class member is affected by the same combination of ORR policies and practices in the same way, Plaintiff’s far-ranging, systemic inquiry cannot “resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. Plaintiff’s abortion-based claims cannot be typical of putative class members who have no interest in those procedures or services.
Plaintiff’s decision to draw her proposed class so broadly as to incur fatal commonality and typicality problems is strategic: if her putative class were limited to UCs in ORR custody currently seeking access to an abortion, she could not demonstrate numerosity under Federal Rule 23(a)(1). Ms. Doe had an abortion on October 25, 2017. In the wake of her abortion, there are no other UCs in ORR custody who are seeking access to abortion. A case with (at most) one plaintiff is an individual action – and here, a moot one – not a class action under Federal Rule 23(a)(1).
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Finally, Plaintiff has not met the requirements for a class action under Rule 23(b)(2) for the same basic reason that she failed to establish commonality or typicality. Rule 23(b)(2) requires that Defendants act in a manner which impacts all members of the putative class so that this Court can grant relief respecting the class as a whole. Plaintiff has provided no basis in fact and no reason to believe that all pregnant UCs will elect to have an abortion, will choose not to voluntarily depart the United States, will not have an appropriate sponsor available, will satisfy state laws relating to abortion, will be at a point in the pregnancy where an abortion is permissible, will have completed any judicial bypass of parental notification and consent, will have access to funds to pay for the abortion, and then will be denied based on the alleged “policy” at issue in Plaintiff’s case.
BACKGROUND This case arises from the efforts of Ms. Doe, a formerly pregnant minor alien in ORR custody, and a putative class of pregnant minor aliens in federal custody, to compel the government-official defendants to facilitate their potential decisions to obtain elective abortions. Defendants incorporate by reference the factual and procedural background, including cited supporting documents and evidence, included in Defendants’ Memorandum of Law in Opposition to Plaintiff’s Application for a Temporary Restraining Order and Motion for a Preliminary Injunction. ECF No. 10 at 3-7. As particularly relevant here, Ms. Doe is a 17-yearold alien minor who attempted to enter the country illegally, was apprehended, and is currently in the care and custody of the ORR in Texas. ECF No. 10 at 3. While in the care and custody of ORR, Ms. Doe requested an elective abortion. Id. She obtained a judicial bypass of Texas’ parental notification and consent requirement from a Texas state court. Id. HHS policy requires that ORR approve all major surgical interventions for minors in its custody. Id. at 4. ORR,
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acting in this custodial capacity, denied Ms. Doe’s request to obtain an abortion and to be transported from her shelter so that she could attend the abortion and associated appointments. Id. at 5.
On October 13, 2017, Ms. Doe and her guardian filed this suit as a putative class action on behalf of herself and “all other pregnant unaccompanied immigrant minors [‘UCs’] in ORR custody nationwide, including those who will become pregnant.” 2 ECF No. 1 ¶47. Plaintiff also filed a request for a temporary restraining order and preliminary injunction, releasing Ms. Doe to obtain abortion counseling and an abortion if she so elected. ECF Nos. 3, 5. On October 18, 2017, Plaintiff filed her Motion to Certify a Class, ECF No. 18, requesting the Court to certify a class of “of all pregnant UCs who are or will be in the legal custody of the federal government.” Id. at 1. Plaintiff asserts that there are “hundreds” of such alien minors in federal custody each year. Id. at 4. Plaintiff maintains that “[i]n 2014, there were approximately 726 pregnant UCs in ORR custody; in 2015, there were 450; and in 2016, 682.” Id. However, a recent statistical analysis reveals that, during fiscal year 2017 (running October 1, 2016, through September 30, 2017) (“FY2017”), ORR had 420 pregnant UACs referred to its custody. Attachment, Declaration of Jonathan White, Dated Nov. 20, 2017, (“White Nov. 20 Decl.”) at ¶ 4. Of those
2 Notably, Plaintiff’s Complaint filed with this Court suggests a class “of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” ECF No. 1 ¶ 47. However, in her motion, Plaintiff sets forth a putative class of “all pregnant unaccompanied immigrant minors [‘UCs’] who are or will be in the legal custody of the federal government.” ECF No. 18 at 1-2. The court may wish to order Plaintiff to clarify which definition they wish to advance and/or file an amended complaint using the definition given in their class certification motion. See, e.g., Costelo v. Chertoff, 258 F.R.D. 600, 604–05 (C. D. Cal. 2009) (“The Court is bound to class definitions provided in the complaint and, absent an amended complaint, will not consider certification beyond it.”). As is, the disparate definitions threaten to make the proposed class not “sufficiently definite that it is administratively feasible for the court to determine whether a particular individual is a member.” Bynum v. D.C., 214 F.R.D. 27, 31 (D.D.C. 2003).
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420, only 18 requested abortion services. Id. at ¶ 5. In response to the 18 requests, 11 of the UACs received abortion services; 5 rescinded their requests; and 2 were released to sponsors. Id.
On October 18, 2017, the Court granted Plaintiff’s request for a Temporary Restraining Order (“TRO”) as to Ms. Doe. ECF No. 20. Defendants appealed and initially obtained a stay of the TRO from a panel of the U.S. Court of Appeals for the D.C. Circuit. However, subsequently, the D.C. Circuit, en banc, dissolved the stay, Garza v. Hargan, No. 17-5236 (D.C. Cir. Oct. 24, 2017) (recalling mandate), and sent the case back to this Court. Following and in compliance with the Court’s Order of October 24, 2017, ECF No. 29, Defendants released Ms. Doe to the care of her guardian ad litem for transportation to an abortion provider. See Jackie Wang, “Unauthorized immigrant minor ‘Jane Doe’ has abortion after back-and-forth court battle,” Dallas Morning News, https://www.dallasnews.com/business/healthcare/2017/10/25/undocumented-teen-texas-abortion (last updated Oct. 25, 2017). On October 25, 2017, Ms. Doe underwent an abortion, terminating her pregnancy. Id.
On November 3, 2017, Defendants filed a petition for certiorari, asking that the Supreme Court vacate the judgment of the court of appeals, with a remand to instruct this court to dismiss all claims for prospective relief as moot. Defendants also suggested that the Supreme Court may wish to issue an order to show cause as to why disciplinary action should not be taken against Plaintiff’s counsel for what appear to be material misrepresentations and omissions to government counsel in the hours leading up to the abortion designed to thwart Supreme Court review of the TRO.
LEGAL STANDARD FOR CLASS CERTIFICATION “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33
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(2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To fall within the exception, Plaintiff “must affirmatively demonstrate [her] compliance” with Rule 23 of the Federal Rules of Civil Procedure. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A party seeking certification of a proposed class bears the burden of demonstrating that the required elements set forth in Rule 23(a) exist, including: (1) “that the class [be] so numerous that joinder of all members is impractical” (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the named plaintiffs are typical of claims or defenses of the class (“typicality”); and (4) the named plaintiffs will fairly and adequately protect the interests of the class (“adequacy of representation”). See Fed. R. Civ. P. 23(a). In addition to meeting the requirements set forth in Rule 23(a), the proposed class must also qualify under Rule 23(b)(1), (2), or (3). See Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); Franklin v. Barry, 909 F. Supp. 21, 30 (D.D.C. 1995); see also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).
The proponents of a class action have the burden of proof as to each of Rule 23’s requirements. See McCarthy v. Kleindienst, 741 F.2d 1406, 1414 n. 9 (D.C. Cir. 1984). The Supreme Court has held that “actual, not presumed, conformance with Rule 23(a) [is] indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982). If a court is not fully satisfied, the class cannot be certified. Id. “While the trial court has broad discretion to certify a class, its discretion must be exercised within the framework of Rule 23.” Zinser, 253 F.3d at 1186. When reviewing a motion for class certification, it “‘may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,’ and that certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” See Gen. Tel. Co., 457 U.S. at 160 (“[A]ctual,
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not presumed, conformance with Rule 23(a) remains . . . indispensable”). The failure by a plaintiff to prove that each one of Rule 23(a)’s requirement is met, precludes certification. WalMart Stores, Inc., 564 U.S. at 349.
ARGUMENT I. Ms. Doe is not an adequate representative because her claim for prospective
relief became moot when she obtained an abortion. 3 The adequacy requirement serves to protect the due process rights of absent class members who will be bound by the judgment. In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002). A determination of legal adequacy is based on two inquiries: (1) “the representative must appear able to vigorously prosecute the interests of the class through qualified counsel,”4 and (2) “the named representative must not have antagonistic or conflicting interests with the unnamed members of the class.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575, 326 U.S. App. D.C. 17 (D.C. Cir. 1997) (quoting National Association of Regional Medical Programs,
3 Because this opposition responds only to the Plaintiff’s request for equitable relief, and because government officials may not be sued in an individual capacity for equitable relief relating to their performance of official duties, this brief is filed on behalf of the Defendants solely in their official, not individual, capacities. See, e.g., Auleta v. United States Dep’t of Justice, No. CV 112131 (RWR), 2015 WL 738040, at *4 (D.D.C. Feb. 20, 2015). 4 Defendants do not concede that Plaintiff’s counsel are qualified. We note that Defendants’ petition for certiorari requested that the Supreme Court “may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel-either directly by this Court or through referral to the state bars to which counsel belong-for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.” Cert. Petition at 26. Those potential proceedings could complicate opposing counsel’s role in representing a class in this action and are a further reason to deny Plaintiff’s Motion. Defendants reserve the right to revisit this issue depending on the outcome of those proceedings.
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Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)). Plaintiff is not an adequate representative under Rule 23(a)(4) because she cannot satisfy the first inquiry.
Ms. Doe’s request to serve as a class representative should be rejected because she cannot vigorously prosecute the interests of the proposed class now that her interests are moot and she no longer has any rights to vindicate before the court. Consideration of mootness acts to ensure that “vigorous advocacy can be expected to continue” throughout the litigation. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 492 (1980). The Supreme Court has held that “[i]n the absence of any claimant’s opting in, [a putative class representative’s] suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2016).
Here, Plaintiff’s claim is that ORR’s policy puts an obstacle in the path of unaccompanied minors who seek an elective abortion. Ms. Doe’s claim on that score became moot when she obtained an abortion on October 25, 2017. See Jackie Wang, “Unauthorized immigrant minor ‘Jane Doe’ has abortion after back-and-forth court battle,” Dallas Morning News, https://www.dallasnews.com/business/health-care/2017/10/25/undocumented-teen-texasabortion (last updated Oct. 25, 2017). Thus, she cannot be a vigorous advocate for the class she now seeks to represent.
This is not a case where the “challenged conduct and the claims raised are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. at 76 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). That is especially true given the facts here, where Ms. Doe obtained an abortion only twelve days after filing suit—just one week after moving for class certification—
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and where the timing appears to have been based in part on a desire to avoid further judicial review. Moreover, a substantial amount of time passed between when Ms. Doe learned of her pregnancy and when this suit was filed. Specifically, she was informed in early September that she was pregnant; she obtained a judicial bypass by September 25, 2017; her request for transport or release was denied on September 28 or 29, 2017; however, the suit did not commence until October 13, 2017 – more than a month after she was told of her pregnancy, nearly three weeks after obtaining a judicial bypass, and two weeks after being denied transportation or release. Indeed, it took her longer to go to court than to get a resolution from the court. In a promptly filed suit by a pregnant minor, the government submits that the expeditious process already demonstrated by this Court would be able to address class certification before a claim for pre-abortion injunctive relief would become moot, even if a court believed preliminary relief were warranted. Given the adequate time for class certification to be addressed, it would not be appropriate to certify a class action here under the reasoning of Genesis Healthcare.
While there is no set time before the “inherently transitory” doctrine can be invoked, by definition, it excludes a period in which the trial court could likely have ruled on certification had the claim not been mooted. Given that the circumstances of each class member will vary broadly, in most cases, there will be ample time for the court to rule on a UC’s motion for class certification early during a pregnancy. In fact, Plaintiff claims that the potential number of UCs is “substantial” and alleges a “large” number of UCs but can point to not one, other than Ms. Doe, who seeks an abortion. ECF No. 18 at 4. There is no reason that Ms. Doe must serve as the class representative in this case rather than another pregnant minor in custody, unless she is in actuality only one of a handful who wants to have an abortion. Indeed, given that as many as
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26 states permit elective abortion until the 20th week, the 24th week, or third trimester of the pregnancy, see https://www.guttmacher.org/state-policy/explore/overview-abortion-laws, there is little reason to believe that the category is so inherently transitory that the exception must be invoked. Thus, there is nothing to suggest that ORR’s “policy” would be “effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. at 76. Accordingly, this Court should decline to allow Ms. Doe to invoke the “inherently transitory” doctrine in order to serve as a representative for a class with whom she does not share an interest.
As Ms. Doe cannot vigorously prosecute the interests of the proposed class because her claim for prospective relief became moot when she obtained an abortion, she is not an adequate representative under Rule 23(a)(4), and this Court should deny Plaintiff’s Motion for Class Certification on this ground alone. See Fed. R. Civ. P. 23(a); Hartman v. Duffey, 19 F.3d at 1468.
II. There are no common questions of law or fact, or legal interests typical of all putative class members, and joinder is practical.
Despite Plaintiff’s attempt to identify common questions of law and fact with regard to their proposed class, those questions cannot be answered on a class-wide basis. Plaintiff does not establish commonality and typicality in the proposed class definitions, where the putative class is broadly drawn, bringing within its ambit differing factual circumstances and differing legal claims. Fed. R. Civ. P. 23(a)(2), (3). “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 350. A common question of law and fact is a question “of such a nature that it is capable of class wide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. “Dissimilarities within the proposed class are what have
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the potential to impede the generation of common answers.” Id. (citation omitted). “What matters to class certification is not the raising of common ‘questions’ - even in droves - but, rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc., 564 U.S. at 350 (citation omitted).
The typicality requirement of Rule 23(a)(3) ensures that the interests of the named representative align with the interests of the class. As long as the claims “resemble or exhibit the essential characteristics of those of the representatives,” Rule 23(a)(3) will be satisfied. Kas v. Financial General Bankshares, Inc., 105 F.R.D. 453, 461 (D.D.C. 1984). The typicality requirement is not met, however, if the proposed class representatives are subject to unique defenses. Id. At bottom, the typicality requirement is used to ascertain “whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of the absent class members so as to assure that the absentees’ interests will be fairly represented.” In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 27 (D.D.C. 2001) (citations omitted).
Rule 23(a)’s commonality and typicality requirements occasionally merge: “[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Wal-Mart Stores, Inc., 564 U.S. at 2551 n.5 (quoting Falcon, 457 U.S. at 157-58, n. 13); see also Little v. Washington Metro. Area Transit Auth., No. CV 14-1289 (RMC), 2017 WL 1403122, at *17 (D.D.C. Apr. 18, 2017).
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A. Plaintiff cannot establish commonality or typicality because her proposed class encompasses a broad range of minors with numerous differing factual and legal bases for individual claims and defenses.
Plaintiff’s class definition of “all pregnant UCs who are or will be in the legal custody of the federal government” and her allegation that Defendants must be prevented “from obstructing, hindering, blocking or otherwise interfering with unaccompanied immigrant minors’ access to abortion” are not sufficient to establish commonality. ECF No. 18 at 1. Plaintiff cannot establish that Ms. Doe’s allegations share a common question of fact or law with other proposed class members because the definition of the class fails to take into consideration the circumstances of each potential class member with regard to pregnancy-related issues as an individual well as issues relating to reunification and sponsorship that would impact the undue burden analysis. In fact, this is Plaintiff’s critical misstep before this Court -- that is, Plaintiff seeks to project the specific facts surrounding Ms. Doe onto all members of the proposed class of pregnant UCs in the custody of the federal government. However, as further discussed infra, Ms. Doe’s select set of facts are distinct, and so, too, are those of each class member, which serve to impede this Court’s ability to address “common answers” and “drive the resolution of the litigation.” Wal-Mart Stores, Inc., 564 U.S. at 350 (citation omitted). Plaintiff attempts to clarify the proposed class in terms of “pregnancy-related care[,]” and “unconstitutional obstructions” thereto; but at bottom, her claim rests entirely on access to abortion. Id. In particular, the circumstances of each class member will vary broadly, including, but not limited to, whether they desire an abortion, whether such procedure would be elective or necessary to avoid serious harm to the mother, whether the minor can be reunified with a parent, and the role the parent should play in the timing of the abortion decision, the availability of and timing for sponsorship, what the particular legal requirements and restrictions on abortions are in the state
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where the minor resides, and the circumstances surrounding the minor’s pregnancy. There are other conspicuous, significant flaws in the class definition. While the phrase uses the word “immigrant,” it makes no distinction regarding the child’s status. For example, lawful immigrants would not be in ORR custody. Further, it makes no distinction regarding how the child came into federal custody, nor does it make any distinction as to the federal agency acting as custodian. Each of those variations presents significant variations making this case inappropriate for class action litigation.
Moreover, Ms. Doe’s interests remain “antithetical to the interests of [other putative] class members.” Mayfield v. Dalton, 109 F.3d 1423, 1427 (9th Cir. 1997). In Mayfield, members of the United States Marine Corps sought certification of a class which included all members of the U.S. Armed Forces to contest the Department of Defense DNA collection policy. Id. at 1423-24. The Ninth Circuit denied class certification on grounds of typicality because there were “undoubtedly” people in the class who would not oppose the DNA collection policy and who, in fact, sought to have the requirement enforced. Id. 1427. Here, as discussed infra, there are “undoubtedly” UCs in the putative class who do not object to Defendants’ “policy” and, moreover, each class member’s situation will be the result of issues specific to that applicant. Indeed, Plaintiff’s argument reinforces the diverse circumstances actually presented by the class members. ECF No. 18 at 4. Specifically, in support of class certification, Plaintiff maintains that there are “hundreds” of such alien minors in federal custody each year. Id. at 4. Plaintiff asserts that “[i]n 2014, there were approximately 726 pregnant UCs in ORR custody; in 2015, there were 450; and in 2016, 682.” Id. But Plaintiff’s assertion suffers from a fatal flaw because it does not establish that there are any pregnant unaccompanied minors currently in ORR custody who seek pregnancy termination, who will be immediately affected, in any way, by Defendants’
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purported “policy,” or were in custody for a period that made necessary addressing hard questions about the role of ORR, the state, the minor, the minor’s parents, and potential sponsors for the minor. In fact, a recent statistical analysis reveals that, during FY 2017 ORR had 420 pregnant UACs referred to its custody. White Nov. 20 Decl. at ¶ 4. Of those 420, only 18 requested abortion services, a significantly small number of proposed class members and in marked contrast to “hundreds” posited by Plaintiff. Id. at ¶ 5.
Plaintiff relies heavily on the specific facts surrounding the circumstances of Ms. Doe and the “obstacles” encountered in her pursuit to terminate her pregnancy. ECF No. 18 at 8 (setting forth facts specific to named J.D.). However, as discussed above, there is nothing to suggest that proposed class members have faced, or will face, the same purported “obstacles,” and whether a class member encounters such obstacles remains entirely dependent on the facts and particular details of the situation. Here, Ms. Doe fled her country of nativity and citizenship and alleges that, following her apprehension, she learned she was pregnant and requested an elective abortion. ECF No. 10 at 3. She further claimed that she was “forced . . . to visit” a pregnancy center and view a “sonogram.” Id. at 3. She did not seek return to her home country nor was a suitable sponsor located. Id. She sought, and was granted, a judicial bypass in Texas state court. Id. Notably, Plaintiff has offered no evidence of proposed class members, other than that of Ms. Doe, who sought pregnancy termination and were refused services or where ORR exercised its purported “veto power over . . . abortion.” ECF No. 18 at 6, 8.
Plaintiff’s complaint incorrectly assumes that all proposed class members would object to informing potential sponsors and/or family members regarding the status of her pregnancy, the potential termination thereof, and would refuse counseling at pregnancy centers. In reality, many minors would likely seek guidance from family when facing this difficult situation.
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Additionally, Plaintiff’s proposed class includes those who might seek voluntary departure or are provided a suitable sponsor in whose custody she could be released. Office of Refugee Resettlement, ORR Guide: Children Entering the United States Unaccompanied § 2.2 (Sept. 8, 2017), available at http://www.acf.hhs.gov/orr/resource/childrenentering-the-united-statesunaccompanied (ORR makes an ongoing assessment to determine whether there is a suitable sponsor for all children in its care); 6 U.S.C. § 279(a), (b); 8 U.S.C. § 1232(c)(3)(A). That is, whether Defendants’ “policy” would be applicable is a fact-intensive inquiry taking into account the situation of each minor. Specifically, a UC may elect not to seek an abortion, may choose to voluntarily depart the United States, may have a sponsor, including a parent, who is available for reunification, may be unable to satisfy state laws relating to abortion, may not have the funds for the procedure, or be at a point in the pregnancy where an abortion is impermissible.
For example, Judge Millett, for the en banc court, recognized that the ability to find a sponsor in a timely manner played an important role in determining whether there was a right to relief, along with numerous other fact-bound circumstances that potential class members will not share. See Garza v. Hargan, No. 17-5236 (D.C. Cir. Oct. 24, 2017) (en banc order) at 3-5 (“centerpiece of the panel order” is the expeditious search for a sponsor and accepting that it is possible some “type[s] of short-term burden . . . could plausibly pass muster under Supreme Court precedent”); see id. (identifying five factual issues relating to promptly finding a sponsor that may be relevant to the right to court-ordered relief); id. at 1 (finding it relevant that case involved a “child who is alone in a foreign land”); id. (Doe “made a considered decision” to terminate the pregnancy); id. (“Texas court” approved her “capacity to make the decision . . . consistent with state law”); id. (minor must act “in compliance with state law requirements”); id. at 4 (relevant that sponsorship search lasted “almost seven weeks” but that “[n]one
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materialized”); id. at 6 (accepting that “sponsorship . . . might be more optimal in the policy sense” for a child to make the difficult decision regarding abortion); id. at 8 (voluntary departure “not a constitutionally adequate choice either given both the life-threatening abuse that J.D. claims a . . . and her potential claims of legal entitlement to remain in the United States”); id. at 9 (observing relevance to facilitation argument of whether the guardian ad litem will pay for the abortion or transport the minor); id. at 9-10 (an “individualized ‘best interests’ judgment” may be relevant to obligation of the government); id. at 10 (relevant to granting injunctive relief that “J.D. is already into the second trimester of her pregnancy” and delay would “materially” increase health risks); id. at 11 (relevant to granting injunctive relief that ‘return to her country at this time would expose her to . . .physical abuse”); id. at 11 (“increasing practical barriers to obtaining an abortion in Texas” is relevant to need for relief including fact that Doe is “on the cusp of having to travel hundreds of miles to obtain an abortion”); id. at 12 (showing of “severe child abuse” in home country relevant to granting relief). Thus, to suggest that class members share “common issues” or that their claims or defenses are “typical” misses the mark. ECF No. 18 at 7, 8; see Dakalea v. Washington Humane Soc., 275 F.R.D. 346, 358 (D.D.C. 2011) (commonality and typicality requirements of Rule 23(a) tend to merge “particularly” where class is broad and class members have suffered “wide range of deprivations . . . and . . . distinct injuries); see also Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (“The typicality criterion is intended to preclude certification of those cases where the legal theories of the named plaintiffs potentially conflict with those of the absentees by requiring that the common claims are comparably central to the claims of the named plaintiffs as to the claims of the absentees.”).
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To the extent that Plaintiff relies on this Court’s decisions in DL v. D.C., 302 F.R.D. 1 (D.D.C. 2013), aff’d 860 F.3d 713 (D.C. Cir. 2017), and Thorpe v. District of Columbia, 303 F.R.D. 120 (D.D.C. 2014), in support of class certification, her argument fails. ECF No. 18 at 67. Both DL and Thorpe stood for the proposition that when assessing the commonality requirement under Rule 23(a)(2), plaintiff must establish that “class members must have suffered the same injury for the same reason, such as a uniform policy or practice that is illegal.” DL v. D.C., 302 F.R.D. at 12 (emphasis added); see Thorpe, 303 F.R.D. at 145-46 (commonality under Rule 23(a)(2) requires plaintiff to establish “uniform policy or practice that affects all class members”). Although Plaintiff here contends that proposed class members will “suffer the same injury as a result of Defendant’s new policies[,]” in particular access to “pregnancy-related care[,]” she can point to no policy or practice that affects all proposed class members. In contrast, as a result of the wide disparity of issues impacting each class member discussed above, the unique facts and circumstances of each case will be affected in different ways by any purported “policy.” As a result, any risk of “injury” widely varies among individual members of the proposed class. See DL, 302 F.R.D. at 12.
B. Ms. Doe cannot establish commonality or typicality because her interests do not align with the proposed class.
Further, Ms. Doe’s interests do not align with other prospective class members. “Representatives must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Ms. Doe seeks to represent a class of individuals who have wide and divergent interests, and thus, cannot establish commonality and typicality.
Ms. Doe seeks to serve as a representative for a class of pregnant minors, which would include minors who both do and do not want an abortion. The interests of these groups do not
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align. Pregnant minors who have no desire for an abortion will have little interest in challenging the purportedly “significant hurdles” erected by ORR in obtaining one. ECF No. 18 at 3. Without a percentage breakdown of which women do and do not want an abortion, this Court risks certifying a class comprised primarily of pregnant minors who do not want an abortion, or who are struggling with the difficult decision whether to have an abortion, represented by an individual who had an abortion, and thus, whose interests do not align with those of the class. Indeed, now that Doe has sought media attention and become an advocate for her position, see, e.g., Antonia Hylton, Jane Doe Speaks, HBO Vice News, October 25, 2017, at https://news.vice.com/story/exclusive-jane-doe-talks-about-herabortion-battle-with-trumps-doj, she may seek relief or requirements that are at odds with the wishes of other minors in ORR custody, or may work to steer minors towards abortion services in a manner that undermines the critical custodial role of ORR and various care providers. This is of special concern given the vulnerability of the children who are in ORR custody away from family and face this difficult situation.
Notably, in Amchem, the Supreme Court found that “named parties with diverse medical conditions” failed to adequately represent the interests of “a single giant class[.]” Amchem Prods., Inc. v. Windsor, 521 U.S. at 595. “[T]he interests of those within the single class are not aligned[,]” the Court added, where currently injured named plaintiffs sought immediate payment while the class members sought a future payout. Id. Similarly, Ms. Doe cannot adequately represent minors in states with different abortion laws, minors at different stages of pregnancy, minors unable to obtain a judicial bypass or subject to differing state law processes for addressing parental consent, minors without resources to obtain abortions, minors for whom ORR is able to readily secure a sponsor or who might avoid sponsorship or parental reunification
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due to the abortion issue, or where a minor’s pregnancy is beyond the pre-viability stage. This “disparity” between Ms. Doe and members of the putative class indicate that their claims are simply “not aligned.” Amchem Prods., Inc. v. Windsor, 521 U.S. at 595.
This is particularly true here, where Ms. Doe has brought a cause of action against Defendants in their personal capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking monetary damages. Indeed, in light of the fact that she has successfully obtained an abortion, her only continuing interest in the case is the recovery of those monetary damages, which presents interests that may conflict with the interests of the class. In Ziglar v. Abbasi, the Supreme Court observed that “a Bivens action is not a proper vehicle for altering an entity’s policy[,]” and is “brought against the individual officer for his or her own acts, not the acts of others.” 137 S. Ct. 1843, 1860 (2017) (internal quotations omitted). But this rule is in tension with Ms. Doe’s core class claims here, which seek to establish a so-called ORR “policy,” as well as commonality and typicality among the class. Because her only interest now would be in pursuing her monetary claims, which diverge from the class interests in prospective relief, she is an inappropriate class representative given the divergent and contrary interests. Amchem Prods., 521 U.S. at 595.
Because there is no common issue, the resolution of which will satisfy the claims of all proposed class members, Plaintiff cannot satisfy Rule 23(a) commonality and typicality requirements. “[C]ommonality is established by a common issue the resolution of which will advance the litigation, but is lacking where the case will turn on a series of individualized inquiries.” Disability Rights Council of Greater Washington v. WMATA, 239 F.R.D. 9 (D.D.C. 2006) (quoting Love v. Johanns, 439 F.3d 723, 730 (D.C. Cir. 2006) (internal quotations and citations omitted); Wal-Mart Stores, Inc., 564 U.S. at 2551 (Rule 23(a)’s commonality and
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typicality requirements occasionally merge). Therefore, this Court should deny certification of the class.
C. Plaintiff cannot establish numerosity because there is either one proposed class member, or the class size is exceedingly small.
Rule 23(a)(1) provides that a class action may be maintained only if “the class is so numerous that joinder of all members is impracticable.” Bynum, 214 F.R.D. at 33. “The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); see also Civic Ass’n of Deaf of New York City v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y.1996) (explaining that a “precise quantification of the class members is not necessary because the court may make ‘common sense assumptions’ to support a finding of numerosity”) (citation omitted). As this Court recognized, “[g]enerally speaking, . . . a proposed class consisting of at least forty members will satisfy the impracticability requirement.” Bynum, 214 F.R.D. at 32. “The general rule is that a plaintiff need not provide the exact number of potential class members in order to satisfy this requirement.” Id. at 33; see, e.g., Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.”); Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998) (“Mere conjecture, without more, is insufficient to establish numerosity, but plaintiffs do not have to provide an exact number of putative class members in order to satisfy the numerosity requirement.”). Vargas v. Meese, 119 F.R.D. 291, 293 (D.D.C. 1987).
Plaintiff contends that while the precise number of its proposed class is “unknowable, general knowledge and common sense indicate that it is large.” ECF No. 18 at 4. Again, Plaintiff relies almost exclusively that “[i]n 2014, there were approximately 726 pregnant UCs in
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ORR custody; in 2015, there were 450; and in 2016, 682.” ECF No. 18. However, she has offered nothing demonstrating that UCs in custody seek pregnancy termination or have been impacted, in any way, by Defendants’ purported “policy.” For the reasons set forth above, Ms. Doe remains the only identifiable class member “injured” by the purported “policy” of Defendants. ECF No. 18 at 4. So she cannot possibly satisfy numerosity.
It is true that Plaintiff need not “provide an exact number” of proposed class members. But “conjecture, without more, is insufficient to establish numerosity.” Pigford v. Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998). She cannot assume that “all pregnant UCs who are or will be in legal custody of the federal government” will seek an elective abortion; not be released to a sponsor, be reunited with a parent, voluntarily depart, or be removed pursuant to expedited process; be in a State where the abortion laws accommodate the minor; be at a point in the pregnancy where an elective abortion is permissible; have completed judicial bypass of parental notification and consent and obtained bypass; have funds to pay for the abortion; and be denied on the grounds asserted in Ms. Doe’s case. The current, identified number of such individuals is one: Ms. Doe, whose claim is now moot. Ms. Doe is a very rare case.
Also, Plaintiff contends incorrectly that “[i]n 2014, there were approximately 726 pregnant UCs in ORR custody; in 2015, there were 450; and in 2016, 682.” ECF 18 at 4. In FY 2017 ORR had 420 pregnant UACs referred to its custody. White Nov. 20 Decl. at ¶ 4. Only 18 of the 420 requested abortion services. Id. at ¶ 5. In response to the 18 requests, 11 of the UACs received abortion services; 5 rescinded their requests; and 2 were released to sponsors. Id. With those numbers, joinder is practical and Plaintiff cannot establish numerosity. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986) (explaining that “while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more
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than forty adequate, with numbers between varying according to other factors”) (internal punctuation omitted).
III. Plaintiff cannot satisfy Rule 23(b)(2) because Defendants’ “policies” do not apply to the putative class as a whole, making class-wide relief improper.
Plaintiff asks the Court to certify a class under Rule 23(b)(2). ECF No. 18 at 10. To prevail, plaintiffs must demonstrate that the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Wal-Mart Stores, Inc., 564 U.S. at 360 (quoting Fed. R. Civ. P. 23(b)(2)). This standard imposes two separate requirements: “(1) that defendant’s actions or refusal to act are ‘generally applicable to the class’ and (2) that plaintiffs seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Bynum, 214 F.R.D. at 37. Plaintiff fails both prongs.
First, Plaintiff cannot demonstrate that Defendants’ actions are “generally applicable to the class.” Id. “The key to the [Rule 23](b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart Stores, 564 U.S. at 360. As explained above, the circumstances of all class members will vary broadly, and any agency action will depend on considerations such as whether a UC elects to seek an abortion; whether the UC chooses to voluntarily depart the United States; whether the UC is at a point in the pregnancy where an abortion is lawful; whether the procedures poses a substantial risk to the health of the UC; whether the UC has adequate funds for the procedure; whether the UC has the means of getting to a treatment facility; and whether a treatment facility is located within reasonable proximity to the ORR shelter. A UC could be denied on any of those grounds which are not presented in Ms. Doe’s case, never implicating any so-called policy regarding the
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facilitation of abortion. Ultimately, only when a mother has found herself in Ms. Doe’s very narrow circumstances would the ORR policy specifically raised by Ms. Doe present a potential injury to a class member. Accordingly, the reasoning and result of Defendants’ application of ORR’s policy may vary dramatically from class member to class member and is not likely to be “based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2) Advisory Comm. Note (1966).
Importantly, the particular injunctive relief called for in each minor’s situation— assuming arguendo this Court determines that there is a violation of a right to obtain an abortion—will vary from person to person. “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart Stores, 564 U.S. at 360 (emphasis in original). Here, each class member may require an individualized injunction as the specific abortion procedures vary from State to State, as do the individuals’ circumstances with respect to custody, care, sponsorship, removal, reunification, and timing: Has she a consenting parent or sponsor whom she could be released to in time to receive the necessary services? Will she require greater facilitation or transport? Must Defendants be ordered to make her available for State required pre-abortion counseling services first? Minors in different circumstances would likely require injunctions specifically tailored to the particular custodial actions the Court determines Defendants would have to take to arrive at the abortion result.
Finally, to satisfy Rule 23(b)(2), Plaintiff must at least show that Defendants “‘ha[ve] acted in a consistent manner toward members of the class so that [their] actions may be viewed as part of a pattern of activity.’” Bynum, 214 F.R.D. at 37 (quoting 7A Charles Alan Wright,
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Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1775 (2d ed.1986)). However, Plaintiffs do not allege any other case in which Defendants have refused to release a minor in ORR care to obtain an abortion. Plaintiff only asserts that Defendants’ “policy” of doing so would apply equally to members of the class. ECF No. 18 at 11. However, there is no such policy. The only relevant “policy” is the HHS policy requiring ORR approval for all major surgical procedures. ECF No. 10-1 ¶¶ 6, 8-12. This policy, which addresses all major surgical procedures generally (and not abortions specifically), will necessarily require a different analysis in different minors’ circumstances, with the most salient example being where the abortion is elective versus recommended to prevent a risk of death or serious injury to the mother. See 6 U.S.C. 279(b)(1)(B) (noting HHS’s duties in caring for the well-being of alien minors); ECF No. No. 10-1 ¶¶ 6, 8-12. These considerations will include, inter alia, issues of the minor’s age, the minor’s health, the temporal status of the pregnancy, the availability of a sponsor/guardian, whether the minor has parental consent or has obtained a judicial bypass, and the availability of funds for the procedure. Again, these factual considerations complicate the picture, and Plaintiff has not shown that the Defendants act in the same way toward all class members. Accordingly, Plaintiff’s claim fails to pass muster under Rule 23(b)(2).
Plaintiff tries to fix this problem by arguing that judicial economy favors class certification. ECF No. 18 at 12. But Plaintiff is wrong: any class action would likely degenerate into individual evidentiary hearings and litigation over particularized relief orders given the differences in the individual potential class members’ circumstances, the particular rules regarding abortion of the State where they are housed, the many nuanced issues relating to the custodial role of ORR, and the likely need to fashion individual relief to address these variations. Judicial economy accordingly favors individual and not class-wide litigation. See, e.g., Nelson v.
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U.S. Steel Corp., 709 F.2d 675, 679 (11th Cir. 1983) (rejecting that judicial economy weighed in favor in class certification where claims were insufficiently overlapping such that mass action had the chance of “degenerating into a series of mini-trials”).
Plaintiff also asserts that class-wide relief is “necessary to avoid mootness and facilitate enforcement of judgments” given the temporally limited nature of pregnancy. ECF No. 18 at 12. Yet that assertion cannot be reconciled with federal practice. A court may enter a TRO very promptly, and may then expedite a hearing on a preliminary injunction. See Fed. R. Civ. P. 65(b). The denial of preliminary injunctive relief is immediately appealable under 28 U.S.C. § 1292(a)(1). The right to immediate appeal encompasses a TRO that would “‘effectively foreclose’ [the litigant] ‘from pursuing further interlocutory relief in the form of a preliminary injunction . . . .’” Belbacha v. Bush, 520 F.3d 452, 455 (D.C. Cir. 2008) (quoting Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978)). Thus, even pregnant litigants denied a TRO very late in their terms would have access to immediate injunctive relief and appeal rights in individual litigation. See id. This litigation bears that point out: the Court entered preliminary relief in Ms. Doe’s favor, with a final, affirmed order going into effect within 11 days of filing the complaint and TRO request, well before the end of the period in which a minor normally could legally obtain an elective abortion.
CONCLUSION This Court should deny Plaintiff’s Motion for Class Certification because Plaintiff has not satisfied Rule 23(a). Ms. Doe is not an adequate representative because she had an abortion and her interests conflict with the overwhelming majority of putative class members who have no interest in abortions. There are no common questions of law or fact, nor are there any legal interests typical of all putative class members. Plaintiff also cannot establish numerosity.
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Even if Plaintiff can satisfy Rule 23(a), the proposed class does not satisfy Rule 23(b)(2) because Defendants’ “policies” are not generally applicable to the class, and awarding any final injunctive or declaratory relief to the class as a whole would be inappropriate.

Attorneys for Defendants

Respectfully submitted,
CHAD A. READLER Principal Deputy Assistant Attorney General Civil Division
August E. Flentje Special Counsel Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation
PAPU SANDHU Assistant Director Office of Immigration Litigation
BY: /s/ Sabatino F. Leo SABATINO F. LEO W. DANIEL SHIEH JOSEPH DARROW Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 514-8599 Fax: (202) 616-4975 sabatino.f.leo@usdoj.gov daniel.shieh@usdoj.gov joseph.a.darrow@usdoj.gov

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad Litem to unaccompanied minor J.D., on behalf of J.D. and others similarly situated,
Plaintiff,
v.
ERIC D. HARGAN, et al.,
Defendants.

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Civil Action No. 17-cv-02122 (TSC)

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PROPOSED ORDER FOR CONSIDERATION OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Class Certification (ECF No. 18).
UPON CONSIDERATION of the Motion, the Court hereby ORDERS: For the reasons set forth in Defendants’ Opposition, Plaintiff’s Motion for Class Certification is hereby DENIED;
It is SO ORDERED. Signed this __day of _______, 2017

____________________________ TANYA S. CHUTKAN United States District Judge

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 Case 1:17-cv-02122-TSC Document 56 Filed 11/27/17 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

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)

Plaintiff,

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v.

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ERIC D. HARGAN, et al.,

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Defendants.

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No. 17-cv-02122-TSC

PLAINTIFF’S REPLY IN FURTHER SUPPORT OF CLASS CERTIFICATION

Defendants ignore key facts and well-established precedent in an attempt to insulate from

adjudication their unconstitutional policy of preventing unaccompanied immigrant minors (or

“unaccompanied children” or “UC”) from obtaining information about their pregnancy options,

coercing them to carry their pregnancies to term, and obstructing them from accessing abortion.

Defendants present four main arguments, none of which withstand scrutiny. First, Defendants

point to a series of irrelevant potential factual differences between class members (such as the

minors’ age, length of pregnancy, and state of residence), to argue that Plaintiff fails to meet the

criteria for commonality and typicality. But none of those facts have any bearing on the central

common question in this case: whether Defendants’ anti-abortion policy, which applies to all

pregnant minors, is constitutional. The presence of this common policy alone suffices to meet the

commonality and typicality requirements.

Second, as to the adequacy of representation prong, Defendants’ primary argument is that

because J.D. had an abortion, she no longer has a sufficient interest in litigating this case. But

this argument ignores the fact that J.D. shares many claims with the class that are currently live,

including that Defendants seek to violate her and other minors’ constitutional rights by telling

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others about their pregnancies and abortion decisions. Moreover, J.D.’s abortion access claim fits within well-established exceptions to the mootness doctrine, especially given that claims related to pregnancy and abortion are classic examples of those that are “capable of repetition, yet evading review” and “inherently transitory.”
Third, Defendants assert that only 18 UCs requested abortions in the past year and, as a result, Plaintiffs cannot meet the numerosity requirement. This argument fails on multiple levels: As an initial matter, the class includes all pregnant UC, and the parties agree both that there are hundreds of such young women every year, which far exceeds the threshold for numerosity. But even if the Court focused only on the number of young women who seek abortions, Plaintiff still meets this requirement. Given Defendants’ policies of discouraging and prohibiting abortion, the actual number of pregnant minors who would seek an abortion is likely much higher than the 18 requests that have been formally transmitted to ORR. Moreover, given the vulnerability of this population, its transitory nature, and widespread geographic diversity, joinder is impractical.
Lastly, Defendants’ arguments under Rule 23(b)(2) are meritless. Plaintiff has clearly shown that Defendants “acted … on grounds that apply generally to the class” by implementing and enforcing a policy against unaccompanied minors that robs them of their ability to freely decide whether to have an abortion. For all of these reasons, Defendants’ arguments should be rejected, and this Court should certify the proposed class.
ARGUMENT I. Plaintiff Satisfies the Requirements of Rule 23(a).
A. J.D.’s Claims are Common and Typical of the Class. Defendants argue that Plaintiff cannot establish commonality or typicality because not all members of the class will face exactly the same “obstacles” as J.D., and different class members
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may have slightly different factual scenarios depending on their location and personal circumstances. Defs.’ Opp. to Pl.’s Mot. for Class Certification (“Opp.”) at 13-15. But this argument ignores that commonality and typicality requirements are clearly met where, as here, (1) the core legal and factual questions in the case revolve around a uniform and coherent policy (here, to coerce and control all UCs’ pregnancy decisions to ensure that they carry their pregnancies to term while in ORR custody, at least unless doing so would pose a risk of death or serious injury); (2) the class members share a common injury (here, invading all class members’ rights to control their own reproductive decision-making and private information disclosure, free of government coercion); and (3) all class members’ claims can be resolved though the relief the class representative seeks (here, enjoining the policy and declaring it unconstitutional).
First, commonality and typicality requirements are easily met where “[t]here is a uniform policy or practice that affects all class members” in the case. DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015) (provisionally certifying a class where a uniform “unlawful [immigration] detention policy aimed at deterring mass migration” applied to all class members); Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394, 419 (D.D.C. 2017) (finding commonality and typicality where the “harm alleged by each class member was the result of the same corporate-wide policies, because a question common to all members will be whether that policy was unlawful.”) (internal quotation marks omitted); DL v. District of Columbia, 302 F.R.D. 1, 12 (D.D.C. 2013), aff’d, 860 F.3d 713 (D.C. Cir. 2017) (finding commonality and typicality “where plaintiffs allege[d] widespread wrongdoing by a defendant because [of] a uniform policy or practice that affects all class members”). In Wal-Mart Stores v. Dukes, the Court made clear that even in fact-
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intensive workplace discrimination cases, commonality and typicality are met when a company “operated under a general policy of discrimination.” 564 U.S. 338, 353 (2011).
Here, since March 2017, Defendants have had a uniform policy, applicable to all pregnant UCs in their custody, of ensuring that all pregnant young people continue their pregnancies while in government custody, unless doing so would pose a risk of death or serious injury, and that the government and federally funded shelters support only “pregnancy services and life-affirming options counseling,” never abortion, regardless of a young person’s decision about her pregnancy. Dec. of Brigitte Amiri in Supp. of Pl.’s Mot. for TRO/PI (“TRO Amiri Dec.”), Ex. C (ECF No. 5-6). The government effectuates this policy through close monitoring of each pregnant UC’s pregnancy, and coercion tactics to ensure that the UC remains pregnant while in ORR custody. For example, ORR’s policy is to require shelters to notify ORR immediately when a pregnancy is discovered, “before” any action is taken to “explore” options. Ex. A to Dec. of Brigitte Amiri (“Reply Amiri Dec.”). ORR requires reporting and monitoring of all pregnancies, even if a UC originally states she wants to carry to term. Ex. B to Reply Amiri Dec. (requiring notification in all cases because “[w]e also know these girls change their minds”); see also Ex. A (requiring notification for all positive pregnancy tests). Government documents suggest that ORR Director Scott Lloyd receives, or for some time this year received, weekly updates concerning each pregnant UC’s location, the circumstances of her pregnancy, her gestational age, and whether she requested information regarding abortion. See, e.g., Ex. C to Reply Amiri Dec.; see also Ex. D to Reply Amiri Dec. Rather than send pregnant UCs to regular medical clinics that provide comprehensive family planning services and unbiased options counseling, ORR requires, as a matter of policy, shelters to send pregnant UCs to “trusted” providers, most of which are anti-abortion “counseling” centers. TRO Amiri Dec., Exs. E-G
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(ECF Nos. 5-8, 5-9, 5-10). ORR requires parents and potential sponsors to be notified about the UC’s pregnancy decision, regardless of the young person’s need to keep her abortion decision private. TRO Amiri Dec., Exs. H-I (ECF Nos. 5-11, 5-12). Mr. Lloyd also has spoken directly with pregnant UCs to dissuade them from abortion. TRO Amiri Dec., Exs. D-E (ECF Nos. 5-7, 5-8); Rachel Siegel, The Trump Official Who Tried to Stop a Detained Immigrant from Getting An Abortion, The Washington Post, Oct. 26, 2017, available at https://www.washingtonpost.com/news/post-nation/wp/2017/10/26/the-trump-official-who-triedto-stop-a-detained-immigrant-from-getting-an-abortion/?utm_term=.d1751bfed674 (“Lloyd has personally intervened to try to persuade unaccompanied minor girls not to have abortions, according to an HHS official. ‘When there’s a child in the program who is pregnant, he has been reaching out to her and trying to help as much as possible with life-affirming options,’ the spokesman said. ‘He by law has custody of these children, and just like a foster parent, he knows that that’s a lot of responsibility and he is going to make choices that he thinks are best for both the mother and the child.’”). Contrary to the government’s suggestion, Opp. at 18, the government’s policy applies to all proposed class members because the policy is aimed at monitoring and steering all pregnant UCs, not only those who affirmatively seek abortions, to childbirth and away from abortion.
Where dissuasion and coercion fail, and a minor continues to ask for abortion access, ORR imposes an outright ban on abortion, again as a matter of policy. If a UC requests an abortion, ORR requires the shelter to notify ORR immediately. TRO Amiri Dec. Ex. B-C (ECF Nos. 5-5, 5-6). ORR will not “facilitate” access to abortion and prohibits grantee shelters from taking “any steps that facilitate [abortion] procedures” under any circumstances, without ORR approval. Id., Ex. B (ECF No. 5-5) (emphasis added); see also id., Ex. C (ECF No. 5-6); Ex. E to
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Reply Amiri Dec (making clear grantees can take no steps, even where a minor has a state judicial bypass court order).1 This policy applies regardless of whether federal funding is necessary. See TRO Amiri Dec. Ex. B (ECF No. 5-5). All pregnant UCs in ORR custody are subject to this policy of ensuring that all pregnant unaccompanied minors remain pregnant until they give birth or leave ORR custody.2
That all pregnant minors are subject to this policy is sufficient to meet the requirements for class certification. See DL, 302 F.R.D. at 12. In addition, all pregnant UCs suffer the same injuries as a result of this policy: (1) they are deprived of comprehensive and unbiased options counseling, and instead are subjected to coercive counseling not designed to meet their medical needs but rather to skew their decision-making; (2) they are denied the power to decide for themselves whether to involve their parents in their pregnancy decision-making; and (3) they are stripped of their right to make autonomous decisions about whether and when to become a parent—a power the government cannot constitutionally take away through coercion, undue burden, or a de facto abortion ban.
Moreover, J.D.’s and other class members’ claims “are based on the same legal theory” and arise from the same government policy and “course of conduct” to ensure that UCs carry their pregnancies while in government custody. Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003); accord Vista Healthplan, Inc. v. Warner Holdings Co. III, 246 F.R.D. 349,
1 The government’s briefing suggests that the only exception the government might make is when the pregnancy poses “a risk of death or serious injury to the mother.” Opp. at 25. 2 The government suggests that it does not have a specific policy concerning pregnancy and abortion access but rather that it simply applies a standard policy for approval of serious surgical procedures. Opp. at 25. The government’s own documents show this is patently untrue. See, e.g., Ex. F to Reply Amiri Dec. (“The email was intended to reinforce the policy concerning pregnancy terminations . . . . The email was not intended to focus on other significant medical procedures or medical costs.”).
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357 (D.D.C. 2007) (resolution “will affect all or a significant number of the putative class members”). Although “for purposes of Rule 23(a)(2) even a single common question will do,” Wal-Mart Stores, Inc., 564 U.S. at 359, proposed class members here share many common issues, chief among them whether the government can constitutionally deprive young women of access to unbiased abortion counseling, whether they can coerce young people to carry their pregnancies to term, block their access to abortion if those coercion efforts fail, and whether the government can force them to disclose highly personal information. The resolution of any of these common issues “will generate common answers apt to drive the resolution of the litigation,” id. at 350, because the relevant questions will concern whether the government can strip any pregnant UCs of their constitutional right to privacy, bodily autonomy, and freedom from coerced speech.
That not all pregnant UCs in the proposed class may ultimately decide to have an abortion, Opp. at 14, is irrelevant. Defendants’ policy affects all pregnant UCs by steering their pregnancy decisions in coercive ways, limiting them from obtaining unbiased information, taking away their decision to involve their parents, and by ultimately taking the power to determine the outcomes of their pregnancies out of their hands and placing it, unconstitutionally, into the hands of Defendant Lloyd. All pregnant UCs are subject to, affected by, and injured by the policy regardless of their ultimate pregnancy decisions.3
The litany of potential factual differences between J.D. and other pregnant UCs the government recites, Opp. at 14-15, 18-19, are both irrelevant to the claims at issue, and would
3 Even if this Court agrees with Defendants’ that the proposed class should be confined to those who have explicitly requested abortion, Plaintiff should be permitted to proceed as the class representative for the reasons stated herein, and Plaintiff meets the test for numerosity as discussed infra.
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not defeat commonality and typicality in any event. Defendants argue that class members may be of different ages, at different stages of pregnancy, have different relationships with their parents, or have differing abilities to find sponsors, but none of this has any bearing on the questions at hand here: Whether Defendants can enforce this policy against young women while they are in ORR custody. Moreover, even if these factual distinctions had some bearing on this case—which they do not—“[f]actual variations between the claims of the class representatives and claims of the other class members do not negate typicality” nor do “factual variations among the class members . . . defeat the commonality,” so long as a single aspect or feature of the claim is common to all proposed class members and the claims arise from the same course of conduct.4 Bynum, 214 F.R.D. at 33-35; Little, 249 F. Supp. 3d at 420 (holding that “[f]actual variations between the claims of class representatives and the claims of other class members do not negate typicality” and that “[p]laintiffs’ claims are typical if they arise from the same course of events” such as “application of [a] [p]olicy” and “class members make similar legal arguments”)(citing Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987)); Nio v. U.S. Dep’t of Homeland Sec., No. CV 17-998 (ESH), 2017 WL 4876276, at *3 (D.D.C. Oct. 27, 2017) (“factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.”).
In R.I.L-R, 80 F. Supp. 3d at 181-82, for example, the court rejected the government’s argument that there was no commonality or typicality among a proposed class challenging consideration of mass migration patterns as a factor in immigration detention determinations just
4 For the same reasons, the government’s reliance on Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), is misplaced. Moreover, the Supreme Court’s focus on factual variations among class members in that case focused primarily on a predominance analysis not relevant here because this is not a Rule 23(b)(3) class.
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because “ICE officers can consider a number of factors” when making an individual detention decision. Even though the “exact role” the challenged detention factor “played in any specific [individual detention] determination [was] unknowable,” commonality and typicality were still satisfied because ICE policy required consideration of the challenged factor, the policy was being applied, and “all (or nearly all) class members were subjected to a determination that included it.” In DL v. District of Columbia, the D.C. Circuit very recently rejected the argument that a proposed class challenging the District’s failure to comply with the IDEA could not meet commonality or typicality because “there [were] many different reasons” the District denied individual class members special education services. 860 F.3d 713, 725 (D.C. Cir. 2017). Because IDEA liability did not depend on “the reason” for the District’s failure but rather whether it failed to meet its statutory obligations and have procedures required to meet the needs of all children, the court found commonality and typicality were easily met. Id. at 725-26; see also Rodriguez v. Hayes, 591 F.3d 1105, 1122-23 (9th Cir. 2010) (rejecting argument that proposed class of immigrants detained more than six months without a bond hearing failed to meet commonality and typicality requirements just because individuals “suffer detention for different reasons and under the authority of different statutes” where “the constitutional [due process] issue at the heart of each class member’s claim for relief [was] common”). Here, as in those cases, J.D.’s and the proposed class members’ claims stem from a single policy designed to steer all pregnant UCs away from considering abortion or having an abortion while in ORR custody, no matter what their personal circumstances or desires may be, and resolution of the legal questions about the government’s power does not turn on individualized factual circumstances.5
5 The government grossly misreads Judge Millett’s concurring en banc opinion. Opp. at 16-17. 9

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Finally, the government also suggests that J.D.’s interests do not align with other
proposed class members’ because no other young people have been injured by Defendants’
policy, Opp. at 15, or are actively seeking access to abortion, Opp. at 22. First, plaintiff has
offered evidence that other members of the proposed class have been injured. See infra at 20-21.
Second, even if Defendants’ assertion that there are no other UCs in ORR custody who are
seeking access to abortion at this particular moment is true, it ignores the fact that it is just a
matter of time before one does so, and when she does so, she will be subject to Defendants’
policy of coercion and obstruction. Even by the government’s own admission, at least 18 young
people have requested abortion services this year and it is impossible to know how many of those
18 or others not included in the base number were unconstitutionally swayed or forced away
from that decision, particularly the five young people the government reports “rescinded their
requests.” Opp. at 5-6. For all of these reasons, Plaintiff has shown that J.D.’s claims are
common and typical of the proposed class.
Judge Millett’s conclusion is that under settled Supreme Court law, the “government may not put substantial and unjustified obstacles in the way of a woman’s exercise of her right to an abortion pre-viability,” and that the government had no “constitutionally sufficient justification for asserting a veto right over J.D. and Texas law.” Garza v. Hargan, 874 F.3d 735, 737 (D.C. Cir. 2017) (en banc) (Millett, J., concurring). Indeed, none of the facts the government cites to oppose commonality and typicality did or could justify any further delay and are, thus, irrelevant: a young person’s undocumented status, id. (“Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own”); ability to find a sponsor, id. at 739 (“Nor does sponsorship bear any logical relationship to J.D.’s decision to terminate the pregnancy. . . . a sponsor would have no ability to control or influence J.D.’s decision. Accordingly, finding a sponsor and allowing J.D. to exercise her unchallenged constitutional right are not mutually exclusive. The two can and should proceed simultaneously.”) (internal citations omitted); and voluntary departure, id. at 738 (finding J.D. “need not wait additional weeks just because she—in the government's inimitably ironic phrasing—‘refuses to leave’ its custody”); id. at 742-43 (“The government's mere hope” that J.D. would take voluntary departure or eventually a sponsor would be found “is not a remotely constitutionally sufficient reason for depriving J.D. of any control over this most intimate and life-altering decision.”).
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B. Plaintiff J.D. Will Continue to Adequately Protect the Interests of the Proposed Class Through Qualified Class Counsel.
Defendants’ assertion that J.D. is unable to adequately represent the class is similarly unavailing. Defendants’ primary argument here is that J.D.’s success in obtaining an abortion on October 25, 2017 moots all of her interests in this case and thereby precludes her from “vigorously prosecut[ing] the interests of the proposed class.” 6 Opp. at 11; Fed. R. Civ. P. 23(a). This argument fails at multiple levels. As an initial matter, Defendants are forced to acknowledge that J.D. indisputably has live claims stemming from Defendants’ uniform “anti-abortion” policy. See Pet. for Cert., No. 17-654, at 24 (“Ms. Doe’s abortion did not necessarily moot all of her claims.”). Indeed, despite J.D.’s abortion, coercive aspects of this policy continue to actively affect her, particularly forced disclosure of private information. See, e.g., Defs.’ Mot. to Recons. (ECF No. 45). As recent filings in this case show, J.D. continues to “vigorously prosecute” these claims. See Pl.’s Opp. to Defs.’ Mot. for Recons. of Extending Am. TRO (ECF No. 52). Defendants therefore cannot—and do not—dispute that J.D. has a continuing interest in invalidating Defendants’ anti-abortion policy, on behalf of both herself and the class.7
But even assuming—as Defendants wrongly do—that J.D.’s only claim concerns her ability to access the abortion procedure, class certification would still be warranted here. J.D.
6 Defendants concede that J.D.’s claim for monetary relief under Bivens is not moot. Opp. at 20. But Defendants are wrong to suggest that this claim for relief hinders her ability to vindicate the rights of other pregnant UCs to have the freedom to make their own decisions about pregnancy by obtaining declaratory and injunctive relief against the government policy. J.D.’s goals of obtaining monetary relief and striking down the policy are in harmony, not in tension. 7 Though Defendants apparently “do not concede that Plaintiff’s counsel are qualified,” Opp. at n.4, all evidence indicates that class counsel will zealously represent both J.D. and the putative class. As set forth in Plaintiff’s Complaint and Motion for Class Certification, Plaintiff’s attorneys are experienced civil rights lawyers and are considered able practitioners in federal constitutional litigation. Compl. ¶ 52 (ECF No. 1); see also Declarations of A. Spitzer, S. Michelman, and B. Amiri in Supp. of Pl.’s Mot. for Class Cert. (ECF Nos. 18-1, 18-2, 18-3).
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filed her complaint on October 13, 2017 (ECF No. 1), and her motion to certify a class on October 18, 2017 (ECF No. 18). These events occurred well before she finally obtained her abortion on October 25, 2017. In other words, because J.D. had a live claim when she filed her complaint and when she sought class certification, there would be no question of mootness here but for the fact that she succeeded in obtaining her abortion before her class certification motion was ruled upon. See Sosna v. Iowa, 419 U.S. 393, 400-402 (1975). But the Supreme Court has recognized at least two exceptions to mootness doctrine that permit class certification in such cases, both of which apply here.8
First, class certification is appropriate where claims are “capable of repetition, yet evading review.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980) (noting that the “capable of repetition, yet evading review” exception has been applied to permit class certification); Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977) (applying the “capable of repetition, yet evading review” exception where “[t]he challenged regulations are still in effect and can be applied against appellant when she seeks food stamp recertification in the future”).
Second, class certification is also appropriate where the claims are “so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Geraghty, 445 U.S. at 399 (citing Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)); Cty. of Riverside v. McLaughlin,
8 There is also precedent in other courts for finding that so long as the named plaintiff’s individual claim was live when she filed the motion for class certification the class action is not moot and, accordingly, it is not necessary for a court to determine that a mootness exception applies in order for the case to proceed. See Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135–36 (3d Cir. 2000) (“So long as a class representative has a live claim at the time he moves for class certification, neither a pending motion nor a certified class action need be dismissed if his individual claim subsequently becomes moot.”).
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500 U.S. 44, 52 (1991) (retaining jurisdiction in class action even though “the class was not certified until after the named plaintiffs’ claims had become moot [by their receipt of probable cause hearings or their release from custody]” because the claims were “inherently transitory”) (quotation marks omitted); Thorpe v. D.C., 916 F. Supp. 2d 65, 66–67 (D.D.C. 2013) (noting that the “inherently transitory” exception to mootness applies “where the population of the claimant population is fluid, but the population as a whole retains a continuing live claim” and applying it because the “[t]he length of any individual’s stay in a nursing facility is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals.”) (quotation marks omitted).
Both exceptions are applicable in this case. Challenges related to pregnancy and access to abortion have come to be viewed as quintessential examples of claims that are “capable of repetition, yet evad[e] review,” id., and, based on the same rationale, have also been characterized as “inherently transitory” in nature. See, e.g., Geraghty, 445 U.S. at 398 (citing Roe v. Wade as an example of a case concerning a claim “capable of repetition, yet evading review.”) (quotation marks omitted); Doe v. Bolton, 410 U.S. 179, 187 (1973) (declining to dismiss case as moot despite termination of pregnancy before appeal); Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644 (4th Cir. 1975) (Roe “clearly establishes that a woman retains standing and the case is not rendered moot by an abortion subsequent to the initiation of the action but before appellate review”); Doe v. Poelker, 497 F.2d 1063, 1065–67 (8th Cir. 1974) (finding “that the plaintiff Jane Doe in this case presents a justiciable controversy and the termination of her pregnancy sometime after the filing of the complaint, but prior to trial, does not render her case
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moot.”); Ciarpaglini v. Norwood, 817 F.3d 541, 547 (7th Cir. 2016) (characterizing pregnancy as
an “inherently transitory” situation).
Indeed, it is very unlikely that this “inherently transitory” claim will remain live for any
pregnant unaccompanied immigrant minor long enough for a court to certify the class, and
certainly will not do so without unnecessarily prolonging the application of the challenged policy
to such a young woman. Like all pregnant women, every unaccompanied minor who is pregnant
in ORR custody faces a limited gestational period, as well as risks associated with pregnancy and
abortion that increase as the pregnancy progresses, including the risk that, if she is delayed from
accessing abortion care too long, she will be forced to carry her pregnancy to term against her will.9 Added to the classically transitory nature of these minors’ pregnancies is the fact that the
minors are literally “transitory” themselves—moving into ORR custody as they enter the United
States, and moving out of ORR custody as they are released to sponsors or are deported. Indeed, the average length of stay in the program in FY 2015 was a mere 34 days.10 As such – and as the proceedings thus far show11—it is highly unlikely that any one pregnant unaccompanied minor
9 Indeed, Defendants still fail to acknowledge the well-accepted medical fact that the risks associated with pregnancy and abortion increase as the pregnancy progresses and thus, it is critical that young women who wish to obtain abortions do so as quickly as possible to protect their health. See Pl.’s Mem. in Supp. of App. for TRO & Prelim. Inj. 15 (ECF No. 5-1) (citing Williams v. Zbaraz, 442 U.S. 1309, 1314–15 (1979) (Stevens, J., sitting as Circuit Justice) and H.L. v. Matheson, 450 U.S. 398, 412 (1981)). Thus, contrary to Defendants’ assertion, Opp. at 11, state abortion limits are not goalposts that Defendants can use to defeat class certification. 10 See U.S. Department of Human Services, Administration for Children and Families, ORR, Unaccompanied Children’s Program, Fact Sheet, available at https://www.acf.hhs.gov/sites/default/files/orr/orr_uc_updated_fact_sheet_1416.pdf. 11 J.D.’s situation illustrates the time-limited nature of the claim at issue here: by the time this Court decides this motion, even in this highly-expedited case, J.D. would have been past the point of an abortion in Texas. Tex. Health & Safety Code Ann. § 171.044 (prohibiting abortion at 20 weeks post-fertilization).
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seeking to enforce her right to make her pregnancy-related decision free from government obstruction will remain both pregnant and in ORR custody long enough to certify a class. But those short stays will be long enough for the government to apply their coercion to get minors to continue their pregnancies and, for those who still decide they want an abortion, cause unconstitutional and problematic delays and possibly even force a young person to carry to term against her will.
Nevertheless, and despite acknowledging that “there is no set time before the ‘inherently transitory’ doctrine can be invoked,” Opp. at 10, Defendants argue that the doctrine is inapplicable here because it is possible that other minors may file earlier in their pregnancies than J.D. did and may be forced to stay pregnant against their will for longer than J.D., thereby permitting a court more time to rule on class certification. Opp. at 9-11.12 This is absurd. Indeed, Defendants’ argument elucidates exactly why exceptions to mootness are necessary: following Defendants’ argument through to its logical conclusion, the only way in which a class could be certified in this case is if a pregnant unaccompanied minor is forced to endure the irreparable harm of carrying a pregnancy against her will (and all associated risks) until briefing on a motion for class certification is complete and a court renders a decision. Defendants should not be allowed to rely on their ability to inflict harm on additional minors in the future for longer periods of time for the purposes of evading class certification now.
12 Contrary to Defendants’ implication, J.D. did not unduly delay in filing her complaint, such that it can be assumed that other similarly situated pregnant minors would be certain to file sooner. Soon after learning of her pregnancy, J.D. sought and obtained a judicial bypass. When it became clear that Defendants would nevertheless persist in physically blocking her from obtaining an abortion, J.D. quickly moved to vindicate her rights in the Northern District of California and – when that court found venue to be improper – promptly filed in this Court. See Dec. of B. Amiri in Supp. of Pl.’s App. for TRO and Mot. for Prelim. Inj. ¶ 5 (ECF No. 5-3).
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Defendants also attempt to undermine J.D.’s adequacy by asserting that J.D.’s interests are “antithetical” to interests of the class, because some proposed class members will decide to carry their pregnancies to term or may be comfortable divulging highly private information to their parents, sponsors, and religious “crisis pregnancy centers.” Opp. at 14-15.13 But as explained supra, J.D.’s interests are perfectly aligned with the interests of the proposed class. Similarly, that some members of the proposed class might ultimately find sponsors or choose to voluntarily depart the country, Opp. at 16, has no bearing on their right to privacy, bodily autonomy and free speech while still in government custody.
The government cites the Ninth Circuit’s decision in Mayfield v. Dalton, but there the court found that the plaintiffs were inappropriate class representatives because of an actual “conflict between the interests of the putative representative and members of the class” because some class members actively supported the government’s policy and wanted it enforced. 109 F.3d 1423, 1427 (9th Cir. 1997). The court distinguished an actual conflict from a situation akin to this case where “some class members might prefer to leave violation of their rights unremedied” — a circumstance that does not make class representative’s interests antithetical to the rest of the class. Id.; see also Wilder v. Bernstein, 499 F. Supp. 980, 993 (S.D.N.Y. 1980) (“Similarly unpersuasive is defendants’ additional argument . . . that there may be conflicting interests within the class because some children may be happy with the present system). Here,
13 While Defendants make this argument when discussing commonality or typicality, Opp. at 1415, this is in fact an argument regarding J.D.’s ability to serve as an adequate representative. See Opp. at 2 (previewing the same points in the introductory discussion of Plaintiff’s ability to adequately represent the class); Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 41 (D.D.C. 2017) (quoting Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997)) (“Two criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.”).
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the government is hard pressed to credibly assert that pregnant UCs in their custody, even if they have no desire to terminate their pregnancies, affirmatively want that decision taken away from them and placed in the government’s hands. Similarly, no pregnant UC in ORR custody wants the government to decide for her if and when to involve her parents or to be sent to unnecessary non-medical appointments where they are forced to talk about intimate matters. See Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (to defeat the adequacy requirement, a conflict “must be fundamental” and not “merely speculative or hypothetical”) (quotation and citation omitted). Thus, there is no conflict between J.D.’s desire to ensure she is free to make her own decisions about her pregnancy, private information, and speech without government coercion or interference and other proposed class members’ similar right and desire, even if they ultimately make different choices than J.D. has made.14
In sum, given that J.D.’s claims align with the class, and that she retains live claims, shared with the class, that she will continue to “vigorously prosecute,” and that the one inherently transitory claim on which she has already obtained TRO relief is subject to mootness exceptions, there is no need to start the process all over again by replacing her with another class member, as Defendants suggest. Opp. at 10.15 Instead, this Court should certify the class to permit J.D. and the putative class members to continue to vigorously litigate all the claims in this case. McLaughlin, 500 U.S. at 51; see also Samuels v. District of Columbia, 770 F.2d 184, 193,
14 Nor is J.D. in any way “work[ing] to steer minors toward abortion services.” Opp. at 19. Rather, J.D. seeks to vindicate every UC’s fundamental freedom to decide if and when to become a parent, as the Constitution has guaranteed people in the United States for decades. 15 Nor, as Defendants also seem to suggest, id., does Plaintiff’s not doing so somehow prove that there are actually no other pregnant minors in ORR custody whose interests align with J.D.’s. To the contrary, as set forth infra 18-21, the class is sufficiently numerous so as to make joinder impracticable, warranting certification here.
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n.5 (D.C. Cir. 1985) (finding that defendants’ provision of “partial and long-delayed relief” to named plaintiffs in the action did not render the case moot, where the plaintiffs “sought class certification to represent all public housing tenants in the District, [and] allege[d] that the District has systematically refused to provide an administrative forum for certain tenant complaints on a classwide basis.”).
C. Plaintiff Meets the Numerosity/Impracticability of Joinder Requirement Defendants do not dispute that each year there are hundreds of pregnant unaccompanied immigrant minors in ORR’s legal custody. See Op. at 22 (noting that there were 420 pregnant UC in ORR’s custody in FY 2017). As discussed supra, Defendants’ policy applies to all pregnant UCs. Accordingly, Plaintiff’s class is several hundred UCs, which is plainly numerous under Rule 23(a). See, e.g., Coleman through Bunn v. District of Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015) (noting that numerosity is satisfied when a proposed class has at least forty members). Unable to dispute that a class of several hundred meets the numerosity test, Defendants instead state that ORR received 18 abortion requests in FY 2017, and argue that Plaintiff’s putative class consists of 18 young women. But even if the court accepted Defendants’ argument that the only relevant members of the class are those who have explicitly asked for an abortion, Plaintiff has still met the numerosity requirement. The fact that, according to Defendants, only 18 requests for an abortion have been formally transmitted to ORR says little about the actual number of class members who would seek an abortion absent Defendants’ policy, which is designed to coerce, intimidate, and prevent young women from seeking abortion care, including by sending them to anti-abortion counseling centers and informing their parents about their pregnancies against their will. Tellingly, in March 2017 alone, just as Defendants began
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developing the challenged policy, four minors requested abortion. Ex. G. to Reply Amiri Dec.; TRO Amiri Dec., Ex. G (ECF No. 5-10). Once Defendants’ policy was in place, other minors have undoubtedly been dissuaded from seeking abortion. Defendants cannot, by their own unconstitutional actions, drive down the number of identifiable class members and then claim the class size is not numerous. See Coleman through Bunn, 306 F.R.D. at 77 (rejecting the District’s attempt to calculate the class by excluding members who acquiesced to the District’s challenged policy).
Even if this Court confined its analysis to the 18 abortion requests in FY 2017, Plaintiff would nevertheless meet the numerosity requirement. As Defendants correctly point out, Opp. at 21, there is no specific threshold that must be met to satisfy Rule 23(a). A class of 25-40 members is presumed to be adequately numerous, but even a class that encompasses fewer than 20 members may be certified upon a showing of impracticability of joinder. Coleman through Bunn, 306 F.R.D. at 76 & n.2. Plaintiff has made such a showing. The factors courts consider in assessing joinder include: “(1) “judicial economy arising from avoidance of a multiplicity of actions”; (2) “geographic dispersion of class members”; (3) “size of individual claims”; (4) “financial resources of class members”; and (5) “the ability of claimants to institute individual suits.” Id. at 80 (citation omitted). As discussed in Plaintiff’s opening brief, factors (2), (4), and (5) are particularly pertinent here: unaccompanied immigrant minors are in shelters across the United States, and they generally lack the financial resources, the knowledge, and the ability to bring their own cases. Pl.’s Mot. for Class Certification (ECF No. 18) at 5. The ability of these minors to bring their own cases is particularly hampered given ORR’s policy of preventing them from meeting with attorneys about abortion access without ORR’s prior approval. See TRO Amiri Dec., Ex. G (ECF No. 5-10) (email from Defendant Scott Lloyd instructing that “UC
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should not be meeting with an attorney regarding her termination or otherwise pursuing judicial bypass at this point”). Indeed, given their specific circumstances, “[t]he members of the proposed class[] in this case are, by definition, uniquely vulnerable.” Coleman, 306 F.R.D. at 81. Furthermore, “the class seeks prospective relief for future class members, whose identities are currently unknown and who are therefore impossible to join.” DL, 302 F.R.D. at 11. Thus, joinder is impractical regardless of the precise class size.
Defendants fail to address any of Plaintiff’s arguments related to impossibility of joinder, but instead assert that J.D.’s case is “very rare.” Opp. at 22. However, as demonstrated by Defendants’ own documents, ORR has subjected multiple young women to their unconstitutional policies since March 2017. Based on Plaintiff’s limited information, which ends in April 2017, the minors affected by Defendants’ policy include: 1) a young woman in San Antonio who was in the process of a medication abortion when ORR intervened to try to stop her from having the abortion, see Ex. G to Amiri Reply Dec.; TRO Amiri Dec., Ex. A (ECF No. 5-4); 2) another young woman in San Antonio who requested abortion but ORR instructed her shelter to refrain from acting on the request without prior ORR authorization, and likely forced her to go to a crisis pregnancy center (“CPC”) and told her mother about her abortion, see Ex. G to Amiri Reply Dec.; id. at Exs. D, H; TRO Amiri Dec., Ex. D (ECF No. 5-7); 3) a young woman in Arizona who requested an abortion, but whom ORR forced to go to an abortion-abortion center, to tell her parents about her abortion decision despite obtaining a judicial bypass, and whom ORR prohibited from meeting with her attorney about the abortion, see TRO Amiri Dec. Exs. C, G (ECF Nos. 5-6, 5-10); 4) another young woman in Arizona who requested and obtained an abortion after securing a judicial bypass, and whose parents ORR told over her objection and despite the fact that her advocate expressed concern that the young woman’s father might
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retaliate against her mother in her home country because the minor had an abortion, see Ex. G to Reply Amiri Dec.; TRO Amiri Dec., Exs. H, I (ECF Nos. 5-11, 5-12); Ex. I to Amiri Reply Dec.; 5) yet another young woman in Arizona who requested an abortion but “changed her mind,” see Ex. J to Amiri Reply Dec.; 6) a young woman in California who requested an abortion, and “changed her mind,” but shelter staff expressed concerns over her deteriorating mental health and asked ORR for permission to explore pregnancy options with the minor, see Ex. K to Amiri Reply Dec. It is inevitable that Defendants’ policy will be imposed on other minors in the future. For all of the reasons above and in Plaintiff’s opening brief, the policy applies to a class too numerous to join.
II. Plaintiff Satisfies the Requirements of Rule 23(b)(2). Defendants appear to either misunderstand the requirements of Rule 23(b)(2) or
incorrectly assume Plaintiff is moving under Rule 23(b)(3). Defendants argue that Plaintiff’s proposed class does not satisfy Rule 23(b)(2) because “the circumstance of all class members will vary broadly, and any agency action will depend on considerations [specific to each UC]…” Opp. at 23. Their opposition reads as though Plaintiff was moving to certify the class under Rule 23(b)(3), which requires the Court to find “the questions of law or fact common to class members predominate over any questions affecting only individual members…” Fed. R. Civ. P. 23(b)(3). In fact, Plaintiff is moving under Rule 23(b)(2) and therefore must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate to the class as a whole.” Fed. R. Civ. P. 23(b)(2). To satisfy Rule 23(b)(2), “it is enough to show that a defendant has acted in a consistent manner toward members of the class so that his actions may be viewed as part of a pattern of activity.” Bynum, 214 F.R.D. at 37 (internal citation omitted). Plaintiff clearly
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meets this requirement because ORR’s policy to coerce and control all UCs’ pregnancy decisions to ensure they carry pregnancies while in ORR custody applies to all class members. See supra at 4-5.
Indeed, the government’s own documents show that Defendants have adopted a policy that ensures all pregnant UCs carry their pregnancies while in ORR custody, and it applies to all pregnant minors regardless of their age, physical location, length of pregnancy, the applicable abortion-related laws in the state she resides in, her access to funds, etc. Defendants’ reliance on the particularities of each unaccompanied pregnant minor is misplaced—those differences are irrelevant to ORR’s unconstitutional policy of coercing and/or obstructing pregnant minors. Defendants recognize only one exception to their policy, namely for minors who would face death or “serious injury” if they carried their pregnancies to term. Opp. at 25. By Defendants’ implicit admission, therefore, the policy otherwise applies across the board. Moreover, these factual differences Defendants raise are also irrelevant to the applicability of any injunctive relief awarded. Certification of a class under Rule 23(b)(2) does not require every class member to have been injured or aggrieved in the same way by a defendant’s conduct. Rather, a class may properly be certified under Rule 23(b)(2) if the opposing party’s “[a]ction or inaction is directed to a class … even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2) Advisory Committee’s Note (1966). “And Rule 23(b)(2) was intended for civil rights cases.” In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015). Thus, it is sufficient if the defendant has engaged in a pattern of activity that is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct. Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994). The proposed class also requests uniform relief,
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prohibiting future implementation of Defendants’ unconstitutional policy. Because a single injunction would afford this relief to all members of the proposed class, certification under Rule 23(b)(2) is appropriate. See Taylor, 241 F.R.D. at 47 (classwide declaratory and injunctive relief proper where defendant “is alleged to have acted or refused to act on grounds generally applicable to all class members and that injunctive relief would be applicable to the entire class.”).
Moreover, certification of the proposed class is appropriate to further judicial economy, avoid mootness, and facilitate enforcement of judgments given the temporal nature of pregnancy. See supra at 13-15. Defendants suggestion that each class member should be forced to come forward to file her own claims is entirely unrealistic. First, Defendants’ claim that a class action “would likely degenerate into individual evidentiary hearings and litigation over particularized relief orders” is simply unfounded. Opp. at 25. The injunctive relief sought would simply enjoin application of Defendants’ unconstitutional policy to all class members and prevent ORR from denying class members their constitutional rights. There would be no need for any individualized hearings because, as discussed supra, their specific details are not relevant to a permanent injunction. Second, Defendants argue that the transitory nature of pregnancy is irrelevant because courts can move quickly to issue necessary injunctive relief, citing J.D.’s case as an example. On the contrary, J.D. is the exception that proves the rule: despite having a committed guardian ad litem and attorney ad litem and a team of eight civil rights litigators across the country, it took J.D. weeks to obtain her bypass and then a federal court order permitting her to exercise her constitutional right. To suggest that all others in J.D.’s circumstances will be able to access counsel (which ORR has actively discouraged) and similarly enforce their rights in the teeth of ORR’s opposition is farfetched. Even if proposed class members could easily litigate their cases
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as individuals, doing so would constitute a tremendous waste of judicial resources. Matyasovszky v. Hous. Auth. of the City of Bridgeport, 226 F.R.D. 35, 40 (D. Conn. 2005) (“when making a determination of joinder impracticability, relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersions of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members”) (citing Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993)). Accordingly, all the requirements of Rule 23 are met.
CONCLUSION For the reasons given above, and for the reasons stated in Plaintiff’s opening brief, Plaintiff’s motion for class certification should be granted.

Date: November 27, 2017

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org
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jdalven@aclu.org Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice
Attorneys for Plaintiff
25

 
 Case 1:17-cv-02122-TSC Document 63 Filed 12/15/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et. al., )

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

No. 17-cv-02122-TSC

APPLICATION FOR A TEMPORARY RESTRAINING ORDER
Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Plaintiffs Jane Roe and Jane Poe hereby apply for the issuance of an order temporarily restraining Defendants (along with their respective successors in office, officers, agents, servants, employees, attorneys and anyone acting in concert with them) from, inter alia, interfering with or obstructing Ms. Roe’s and Ms. Poe’s access to abortion; forcing, coercing, or requiring Ms. Roe and Ms. Poe to obtain “counseling” from an anti-abortion entity, including a crisis pregnancy center or “pregnancy resource center” either before or after their abortions; forcing, coercing, or requiring Ms. Roe and Ms. Poe to notify anyone of their abortion decision, either before or after their abortions; disclosing Ms. Roe’s and Ms. Poe’s abortion decision themselves, either before or after their abortions, to her family or immigration sponsors; coercing or attempting to “persuade” Ms. Roe and Ms. Doe to carry their pregnancies to term; or retaliating against Ms. Roe and Ms. Doe and the shelter staff who assist them based on their decision to have an abortion and their assistance, respectively.
This motion is based on the memorandum of points and authorities submitted herewith, all declarations, pleadings and filings filed in this action, and such oral arguments and evidence as may be presented at a hearing on the motion.

Case 1:17-cv-02122-TSC Document 63 Filed 12/15/17 Page 2 of 3

The grounds for this application are that Defendants’ actions and policies violate Ms. Roe’s and Ms. Doe’s rights under the First and Fifth Amendments to the Constitution of the United States, insofar as these actions and policies unlawfully violate Ms. Roe’s and Ms. Doe’s rights to privacy, liberty and informational privacy, and rights against compelled speech; that Ms. Roe and Ms. Doe will suffer irreparable injury if the Defendants are not enjoined; that Defendants will not be injured if a temporary restraining order issues; and that the public interest favors the issuance of a temporary restraining order.

December 15, 2017

Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005
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Case 1:17-cv-02122-TSC Document 63 Filed 12/15/17 Page 3 of 3
Telephone: (202) 675-2330 dmach@aclu.org Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
3

Case 1:17-cv-02122-TSC Document 63-1 Filed 12/15/17 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et. al., )

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS JANE ROE’S AND JANE POE’S MEMORANDUM IN SUPPORT OF THEIR APPLICATION FOR A TEMPORARY RESTRAINING ORDER PRELIMINARY STATEMENT
Jane Roe and Jane Poe seek a temporary restraining order (TRO) to prohibit the federal government from continuing to block them from obtaining an abortion. Both are 17-year-old unaccompanied immigrant minors who are currently in the federal government’s legal custody, living in government-funded shelters.1 Ms. Roe and Ms. Poe are pregnant and are resolute in their desire to have an abortion. Nevertheless, as a result of Defendants’ continued enforcement of their policy of ensuring that all pregnant minors in their custody continue their pregnancies, even against their will, both of these women are being blocked from exercising their constitutionally protected decisions.
Ms. Roe learned she was pregnant approximately three weeks ago and, after being counseled about her options, asked for an abortion. Similarly, Ms. Poe requested an abortion last

1 Plaintiffs’ motion for Ms. Roe and Ms. Poe to proceed using pseudonyms to protect their privacy has been filed simultaneously with this motion.

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week after having been informed by her doctor that she is quickly approaching the point in her
pregnancy after which she will no longer be able to obtain an abortion in the state where she is
located. To date, however, Defendants have not permitted either Ms. Roe’s shelter or Ms. Poe’s
shelter to allow Ms. Roe and Ms. Poe to access abortion. Absent an immediate temporary
restraining order, Ms. Roe and Ms. Poe will both be pushed further into their pregnancies,
increasing the risks associated with the abortion procedure, and, if the Court does not intervene, Ms. Roe and Ms. Poe will be forced to carry to term against their will.2
This Court has already considered the parties’ arguments as to the Plaintiffs’ likelihood
of success in their constitutional challenge to Defendants’ no-abortion policy. It has already
balanced the irreparable harm to a minor from being unduly delayed and/or blocked from
effectuating her abortion decision against any alleged harm to Defendants, and it has already
considered the public interest. Having done all of this, this Court issued a TRO to prevent
Defendants from interfering with or obstructing Plaintiff Jane Doe’s access to abortion. Order (ECF No. 20).3 The same factors that counseled in favor of granting that relief to Ms. Doe
support doing the same with respect to Ms. Roe and Ms. Poe. Accordingly, Plaintiffs respectfully
request that this Court similarly issue an immediate temporary restraining order prohibiting
2 Plaintiffs’ motions for class certification and for a preliminary injunction on behalf of the class to prohibit Defendants from interfering with and obstructing access to abortion for unaccompanied immigrant minors are fully briefed. See Pl.’s Mot. for Prelim. Inj. (ECF No. 5); Pl.’s Mem. in Supp. of TRO & Prelim. Inj. (ECF No. 5-1); Pl.’s Reply in Supp. of TRO & Prelim. Inj.; Defs.’ Opp. to TRO & Prelim. Inj. (ECF No. 10); Pl.’s Mot. in Supp. of Class Cert. (ECF No. 18); Defs.’ Opp. to Pl.’s Mot. for Class Cert (ECF No. 53); Pl.’s Reply in Supp. of Class Cert (ECF No. 56). In absence of a preliminary injunction, Defendants have continued to enforce their unconstitutional no abortion policy against minors in their care, including Ms. Roe and Ms. Poe. 3 Defendants appealed the TRO this Court entered for Jane Doe to the D.C. Circuit. The D.C. Circuit en banc denied the government’s emergency request for a stay, concluding that the government had “not met the stringent requirements for a stay pending appeal.” See Garza v. Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017).
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Defendants from further obstructing or interfering with Ms. Roe’s and Ms. Poe’s ability to exercise their fundamental right to obtain an abortion.
FACTUAL BACKGROUND In March of 2017 Defendants established a policy of prohibiting all federally funded shelters from “taking ‘any action that facilitates’ abortion access for unaccompanied minors absent ‘direction and approval from the Director of the ORR.’” See Findings of Fact in Supp. of Amended TRO ¶ 5 (ECF No. 30).4 Defendants are currently applying this policy to block Jane Roe and Jane Doe from exercising their constitutionally protected rights. Ms. Roe and Ms. Poe are both 17 years old and arrived in the U.S. from their home countries without their parents. See Ex. 1, Decl. of J.R. ¶¶ 2-3. Both minors have been placed in an ORR-funded shelter. Id. ¶ 4. Ms. Roe learned that she was pregnant on November 21, 2017, during a medical examination, and—after having been informed of all her options by her doctor—decided to have an abortion. Ex. 1, Decl. of J.R. ¶ 5. She requested that the doctor and the shelter provide her with access to an abortion. Id. Despite this request, and her continued insistence that she wants an abortion, Defendants have refused to grant consent for her shelter to provide her with access an abortion provider. Id. ¶¶ 6, 9. Similarly, after having been informed by her doctor that she is now in her second trimester of pregnancy and after having discussed her options with her doctor, including abortion, Ms. Poe decided to have an abortion. Like Ms. Roe, she has also asked the doctor and her shelter for access to abortion. And like Ms. Roe, to date she has not been allowed to access an abortion provider.
4 Plaintiffs incorporate by reference the facts submitted in support of their Application for a TRO and Motion for a Preliminary Injunction (ECF Nos. 3, 5).
3

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Defendants’ actions have already caused Ms. Roe to delay her abortion by several weeks. Ms. Poe is in her second trimester of pregnancy and is quickly approaching the point at which abortion will no longer be option; accordingly any further delay (however minimal) risks stripping her of her constitutional right to abortion. Plaintiffs respectfully request that this Court prohibit Defendants from forcing these minors to remain pregnant against their will any longer.
ARGUMENT To obtain a preliminary injunction or temporary restraining order, a plaintiff must establish (1) “that [s]he is likely to succeed on the merits,” (2) “that [s]he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [her] favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016) (standards for issuing a temporary restraining order and a preliminary injunction are “the same” and can therefore be analyzed together). Courts in this Circuit have traditionally applied these factors on a “sliding scale,” where a stronger showing on some factors can compensate for a weaker showing on others. See, e.g., Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). It has been suggested, but not decided, that a likelihood of success on the merits may be required. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (citing Winter, 555 U.S. at 20-22). Under either approach, Plaintiffs make the necessary showing here. I. Plaintiffs Jane Roe and Jane Poe Are Likely to Succeed on the Merits of Their
Claims. A. Defendants’ Conduct Violates Jane Roe’s and Jane Poe’s Fifth and First
Amendment Rights. 1. Defendants Cannot Block Jane Roe and Jane Poe From Accessing Abortion.
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As in the Jane Doe case, Roe v. Wade, 410 U.S. 113 (1973) and its progeny, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), control here. These Supreme Court cases make clear that government may not place a “substantial obstacle” in the path of women seeking abortion. Whole Woman’s Health, 136 S. Ct. at 2309. Defendants’ policy of blocking minors from accessing abortion goes beyond imposing a substantial obstacle—it outright prohibits minors from exercising their right to decide to terminate their pregnancies before viability. Such a prohibition is blatantly unconstitutional under binding Supreme Court precedent. See, e.g., Casey, 505 U.S. at 871 (a “woman’s right to terminate her pregnancy before viability” is “a rule of law and a component of liberty we cannot renounce”).
Defendants are once again violating binding Supreme Court precedent here by refusing to allow Ms. Roe and Ms. Poe to obtain an abortion. As was the case with Ms. Doe, Defendants are exercising their veto power over Ms. Roe’s and Ms. Poe’s constitutionally protected abortion decisions by refusing to allow them to access an abortion. As was the case with Ms. Doe, there is no reason that remotely passes constitutional muster for Defendants to be doing so. Nevertheless, Defendants persist in enforcing their blatantly unconstitutional policy against Ms. Roe and Ms. Poe, refusing to permit them to access abortion care in direct violation of the Fifth Amendment.
2. Defendants Cannot Force Jane Roe and Jane Poe To (Or to Disclose Themselves) Their Pregnancy Decisions to Others Without Their Consent.
As Plaintiffs have explained, Defendants’ infringement of minors’ constitutional rights goes beyond blocking their ability to access abortion. Defendants’ policy also requires minors to tell parents and/or sponsors about their pregnancies and abortion decisions even if they do not wish to do so—otherwise Defendants will tell those parents and sponsors themselves over the minors’ objections—and compels minors to attend “life-affirming” spiritual counseling. See,
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e.g., Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Exs. A-I to Decl. of B. Amiri in Supp. of TRO & Prelim. Inj. (ECF Nos. 5-3 – 5-12); Pl.’s Mot. for Class Cert. (ECF No. 18); Pl.’s Reply in Supp. of Class Cert. (ECF No. 56). As set forth in Plaintiffs’ prior briefings, these aspects of Defendants’ policy also violate minors’ Fifth and First Amendment rights. Pl.’s Mem. in Supp. of TRO & Prelim. Inj. (ECF No. 5-1) 11-14. Given that Defendants continue to enforce their unconstitutional policy against pregnant minors in their care, Ms. Roe and Ms. Poe are at risk of being subjected to these aspects of the policy. Accordingly, like Plaintiff Jane Doe before them, Ms. Roe and Ms. Poe are likely to succeed on Fifth and First Amendment claims.
C. Jane Roe and Jane Poe Will Suffer Irreparable Injury Unless Defendants Are Enjoined.
Ms. Roe and Ms. Poe will suffer immediate and irreparable harm if this Court does not require Defendants to provide them with immediate access to the abortion care they seek. As Plaintiffs have explained, time is “of the essence in an abortion decision.” H.L. v. Matheson, 450 U.S. 398, 412 (1981); see Pl.’s Mem. in Supp. of TRO & Prelim Inj. (ECF No. 5-1) 14-15. This is both because the medical risks associated with the abortion procedure increase as the pregnancy progresses and because delaying a woman from accessing abortion care past a certain point in her pregnancy will strip her of her right to choose entirely. See Pl.’s Mem. in Supp. of TRO & Prelim Inj. (ECF No. 5-1) 14-15; Williams v. Zbaraz, 442 U.S. 1309, 1314–15 (1979) (Stevens, J., sitting as Circuit Justice) (increased risk of “maternal morbidity and mortality” supports claim of irreparable injury).
Like Plaintiff Jane Doe before them, Ms. Roe and Ms. Poe face irreparable harm if they are not granted the relief they seek. Each day that goes by is another day that Ms. Roe and Ms. Poe are forced by Defendants to remain pregnant against their will. Although abortion is safe
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throughout pregnancy, the risks do increase as the pregnancy advances. The irreparable harm to Ms. Roe and Ms. Poe will only increase if Defendants are permitted to continue to block them from exercising their right, to the point where they are forced to carry to term against their will. They will also be irreparably harmed if they are forced to tell (or if Defendants tell) family members, sponsors and other third parties that they are seeking or having obtained an abortion and if they are forced to be “counseled” by a religious entity in violation of their First Amendment rights. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 15-16 (ECF No. 5-1).
D. The Balance of Harm Strongly Favors Plaintiffs. In contrast to the irreparable harm Ms. Roe and Ms. Poe face absent relief, as this Court found in the case of Jane Doe, Defendants “will not be harmed if [a TRO] is issued.” Order at 1 (ECF No. 20). Defendants have no legal right to override Ms. Roe’s and Ms. Poe’s constitutional right to choose whether to carry a pregnancy to term by prohibiting them from attending abortion appointments absent the “consent” they withhold. Private funds will be used to pay for both Ms. Roe’s and Ms. Poe’s procedures and shelter staff will transport Ms. Roe and Ms. Poe to abortion providers. In other words, the costs are covered, the logistics related to the transfer of Ms. Roe and Ms. Poe to their respective abortion providers will be handled by their shelters, and any necessary post-procedure care will be handled by the shelters in conjunction with Ms. Roe’s and Ms. Poe’s medical providers. Once again, Defendants are being asked only to refrain from prohibiting those willing to help Ms. Roe and Ms. Poe effectuate their constitutional rights from doing so. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 16 (ECF No. 5-1). Accordingly, once again, Defendants simply cannot claim that they suffer any harm from allowing Ms. Roe and Ms. Poe to access the care that they seek and to which they are constitutionally entitled. E. A TRO Serves the Public Interest.
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Finally, the public interest will be served by issuing a TRO here. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting Abdah v. Bush, No. 04-cv-1254, 2005 WL 711814 at *6 (D.D.C. Mar. 29, 2005)); accord Lamprecht v. F.C.C., 958 F.2d 382, 390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently conflict with the public interest”); see also Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017); Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely, upholding constitutional rights serves the public interest.”); Planned Parenthood Ass’n of City of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (“the public is certainly interested in the prevention of enforcement of ordinances which may be unconstitutional”); Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) (“the public interest … requires obedience to the Constitution”). As in Jane Doe’s case, there is no conceivable way the public interest will be adversely affected by protecting Ms. Roe’s and Ms. Poe’s choice toterminate their pregnancies, the most private and intimate of decisions. Indeed, the opposite is true: The public interest will be served by ending this violation of Ms. Roe’s and Ms. Poe’s constitutional rights.
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully requests that this Court issue a temporary restraining order prohibiting the Defendants from continuing to interfere with Jane Roe’s and Jane Poe’s right to obtain an abortion.

DATED: December 15, 2017

Respectfully submitted, /s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945)
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American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Admitted pro hac vice
Attorneys for Plaintiffs
9

 
 Case 1:17-cv-02122-TSC Document 65 Filed 12/17/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of J.D. )

and others similarly situated, et al.

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

SUPPEMENTAL MEMORANDUM REGARDING ADDITIONAL CLASS REPRESENTATIVE IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

Plaintiffs submit this supplemental memorandum in support of Plaintiffs’ motion for

class certification to provide the Court with new facts relevant to the class certification motion

and to request that Plaintiff Jane Roe be added as an additional class representative. The

proposed addition of Jane Roe as a class representative simplifies the issues before the Court

and, if certification is granted at this time, renders irrelevant several of Defendants’ arguments

against certification.

On December 15, 2017, Plaintiffs were granted leave to file an amended complaint in this

action, and filed a motion for a temporary restraining order on behalf of Jane Roe, a 17-year-old

unaccompanied immigrant minor who is currently in the federal government’s legal custody,

living in a government-funded shelter. Ms. Roe is pregnant and is resolute in her desire to have

an abortion. Nevertheless, as a result of Defendants’ continued enforcement of their policy of

ensuring that all pregnant minors in their custody who desire abortions continue their

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pregnancies against their will, see Findings of Fact in Supp. of Amended TRO ¶ 5 (ECF No. 30), she is being blocked from exercising her constitutionally protected decision.
Ms. Roe arrived in the U.S. from her home country without her parents. Ex. 1, Decl. of Jane Roe ¶ 5 in Support of Plaintiffs’ Motion for a TRO. She was detained upon arrival and placed in an ORR-funded shelter. Id. ¶ 4. On November 21, 2017, she learned that she was pregnant during a medical examination, and – after having been informed of all her options by her doctor – decided to have an abortion. Id. ¶ 5. Defendants have refused to grant consent for her shelter to provide her with access an abortion provider. Id. ¶ 6, 9. Ms. Roe is also at imminent risk of other severe harm. Defendants’ policy requires that the parents and/or potential sponsors be notified about the minors’ pregnancies and abortion decisions even if the minor objects and also compels such minors to attend “life-affirming” spiritual counseling. See e.g., Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Exs. A-I to Decl. of B. Amiri in Supp. of TRO & Prelim. Inj. (ECF Nos. 5-3 – 5-12); Pl.’s Mot. for Class Cert. (ECF No. 18); Pl.’s Reply in Supp. of Class Cert. (ECF No. 56). Since Ms. Roe has continued to assert her desire for an abortion, and because Defendants continue to enforce their unconstitutional policy of coercing minors to continue their pregnancies, Ms. Roe is at serious risk of being subjected to these aspects of the policy as well.
Having amended the complaint to add Ms. Roe as a Plaintiff, Plaintiffs propose to add Ms. Roe as an additional class representative. With the addition of Ms. Roe, the class would continue to meet the requirements of numerosity and commonality and the criteria for a Rule 23(b)(2) class for the reasons explained in Plaintiffs’ moving papers and reply in support of the motion. See Dkt 18, at 3-7, 10-12; Dkt. 56, at 2-10, 18-21.
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Ms. Roe’s claims are typical of the class, Fed. R. Civ. Pro. 23(a)(3), because they raise the same issues that apply to the rest of the class: whether the government can constitutionally institute a policy to ensure that no pregnant young people in its custody obtain an abortion (unless continuing the pregnancy would pose a risk of death or serious injury), by requiring government and federally funded shelter to support only “pregnancy services and life-affirming options counseling,” forcing pregnant young people to disclose their pregnancy and planned abortions to their parents, sponsors, and anti-abortion counselors as part of the coercion effort, and ultimately blocking their access to abortion if the coercion efforts fail. Dkt. 56, at 4-6; Dkt. 18, at 7.
Like Ms. Doe and other members of the putative class, Jane Roe is pregnant and in the custody of ORR and living at a government-funded shelter. Ex. 1, Decl. of Jane Roe ¶ 4 in Support of Plaintiffs’ Motion for a TRO. She is therefore subject to the same policy that applies to all pregnant minors in Defendants’ custody – a policy designed to ensure that no minors terminate their pregnancy while in ORR custody. Indeed, like Ms. Doe was, Ms. Roe has already been obstructed for several weeks from accessing abortion services that she desired to obtain. Id. ¶ 5-6, 9. Like Ms. Doe and all other class members, Ms. Roe is being stripped of her right to make autonomous decisions about whether to become a parent, and is at risk of being subjected to other coercive practices, including being forced to notify others of her pregnancy and abortion decision. Ms. Roe thus suffers the same constitutional injuries (violation of her Fifth and First Amendment rights) as the other class members do, and so her claims are typical. See Coleman through Bunn v. District of Columbia, 306 F.R.D. 68, 80 (D.D.C. 2015) (“A class representative satisfies the typicality requirement if the representative’s claims are based on the same legal theory as the claims of the other class members and her injuries arise from the same course of
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conduct that gives rise to the other class members’ claims.” (internal citation omitted)); Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003) (“[I]f the named plaintiffs’ claims are based on the same legal theory as the claims of the other class members, it will suffice [for typicality] to show that the named plaintiffs' injuries arise from the same course of conduct that gives rise to the other class members’ claims.”). Resolution of the legal questions presented and issuance of the requested injunction would protect the rights of the class members just as it would protect Jane Roe’s rights.
Ms. Roe will adequately protect the interests of the class because she seeks relief on behalf of the class as a whole and has no interest antagonistic to other members of the class. Fed. R. Civ. Pro. 23(a)(4). Like the class members she seeks to represent, Ms. Roe seeks to be free from Defendants’ challenged policies and practices that coercively ensure that no unaccompanied minors terminate their pregnancies while in ORR custody. To the extent Defendants object to adequacy on the ground that some members of the proposed class might not wish to exercise their rights, that argument is misguided for the reasons Plaintiffs have already explained. See Dkt. 56, at 16-17. (Ms. Roe has the same counsel as Ms. Doe, and so the same arguments as to adequacy of counsel apply fully to Ms. Roe. See Dkt. 18, at 9-10.)
Not only is Ms. Roe an appropriate additional class representative, but she also simplifies the issue of class certification presented to the Court. The government has argued against class certification on the ground that Jane Doe is an inadequate or atypical class representative or that class certification was otherwise improper because Jane Doe has already received an abortion. Dkt 53, at 8-11. Those arguments, in addition to being wrong for the reasons Plaintiffs have already shown, Dkt. 56, at 11-18, are now irrelevant in light of the presence of Ms. Roe, who like every other unnamed class member has not yet obtained an abortion. Resolution of the class
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certification motion at this stage of the proceedings with Ms. Roe as an additional representative

would obviate the need to reach several of the government’s erroneous arguments.

For these reasons, Plaintiffs ask the Court to consider these new facts in deciding

Plaintiffs’ motion for class certification and to certify Jane Roe as an additional class

representative along with Jane Doe. An amended proposed order is attached.

DATED: December 17, 2017

Respectfully submitted,

/s/ Scott Michelman

Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street

5

Case 1:17-cv-02122-TSC Document 65 Filed 12/17/17 Page 6 of 6 San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
6

 
 Case 1:17-cv-02122-TSC Document 66 Filed 12/17/17 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated;

)

JANE ROE on behalf of herself and others

)

similarly situated; and JANE POE,

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

_________________________________________ )

No. 17-cv-02122-TSC

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

INTRODUCTION1

This Court should decline Plaintiffs Jane Roe’s (“Ms. Roe”) and Jane Poe’s (“Ms. Poe”)

(collectively referred to as “Plaintiffs”) requests for an order directing the government to

affirmatively facilitate their decisions to have an elective abortion because the facts in each of their

respective situations do not meet the requirements for a temporary restraining order.

First, Plaintiffs have not demonstrated a likelihood of success on their claims for injunctive

relief. Plaintiffs contend that as in the case of Ms. Jane Doe, the government is “once again

violating binding Supreme Court precedent here by . . . exercising their veto power over Ms. Roe’s

1 Because this opposition addresses only the Plaintiffs’ request for equitable relief, and because government officials may not be sued in an individual capacity for equitable relief relating to their performance of official duties, this brief is filed on behalf of the Defendants solely in their official, not individual, capacities. See, e.g., Auleta v. United States Dep’t of Justice, No. 11-cv2131 (RWR), 2015 WL 738040, at *4 (D.D.C. Feb. 20, 2015).
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and Ms. Poe’s constitutionally protected abortion decisions by refusing to allow them to access an abortion.” Plaintiffs’ Memorandum ISO App. for TRO at 5. But the en banc D.C. Circuit never held that any period during which the Department of Health and Human Services (“HHS”) can seek sponsorship is per se unconstitutional. As Judge Millett wrote for the en banc court, the factbound issue in Ms. Doe’s case was that the government did not argue the delay there was “the type of short-term burden that could plausibly pass muster under Supreme Court precedent to bar an abortion[,]” implying that a short delay in certain circumstances would not impose such a burden. Garza v. Hargan, 874 F.3d 735, 739 (D.C. Cir. October 24, 2017) (en banc). And the en banc court acknowledged that in some circumstances, the government does not impose an undue burden because the alien should return to her home country. Id. at 740. Moreover, unlike in Ms. Doe’s case where she obtained a judicial bypass from a Texas state court, there has been no judicial determination that either Ms. Roe or Ms. Poe, both 17 year old minors, are sufficiently mature to make their abortion decision. Nor has Ms. Poe shown that the same test applied by the en banc court applies to her later-stage pregnancy. The facts presented here therefore are distinguishable and do not similarly establish a likelihood of success on the merits.
Second, Plaintiffs cannot establish irreparable injury. Ms. Roe’s sponsorship process is near completion, as a potential sponsor has already been identified, who “is a family member, a U.S. citizen, and [who] has submitted an application[,]” and who is only awaiting an expedited background check, with an estimated completion time of two weeks. White Decl. ¶ 4. It is undisputed that Ms. Roe has several weeks remaining pre-viability in which an abortion would be legally permissible, so it is unnecessary for her to obtain emergency judicial relief this week to vindicate the right to abortion that she invokes. In Ms. Poe’s case, she decided as recently as December 4, 2017 that she did not want an abortion, and only last week changed her mind. White
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Decl. ¶ 5; Jane Poe Decl. ¶ 5. Given these facts, and Plaintiffs’ ability to seek voluntary departure or a qualified sponsor, the government is forcing neither Ms. Roe nor Ms. Poe to carry their pregnancy to term against their will. In both cases, granting immediate relief would disrupt the status quo and would irreversibly harm the government’s interests without an opportunity for a full adjudication on the merits.
Finally, the balance of hardships and public interest weigh strongly against the relief that Ms. Roe and Ms. Poe have requested. The government has strong and constitutionally legitimate interests in promoting its interest in life, in refusing to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in federal custody. Those interests would be irreparably undercut if Ms. Roe and Ms. Poe were granted the relief they seek.
However this Court rules on the motion, it should do so in a way that preserves the right— of both sides—to seek appellate review. In particular, given the magnitude of the interests in play—including the irreversible nature of abortion—any ruling by this Court on the motion should be stayed pending appeal with respect to both minors. If the Court is not willing to enter a stay pending appeal for both minors, because Ms. Roe is only 10 weeks pregnant and is very likely to have a sponsor soon, the Court should grant a stay of 2 weeks with respect to Ms. Roe. At a minimum, the Court should grant a stay of 24 hours to allow the government an opportunity to seek emergency relief from the D.C. Circuit and the Supreme Court.
BACKGROUND Ms. Roe is a 17 year old unaccompanied minor in the custody of the Office of Refugee Resettlement (“ORR”), who learned she was pregnant during a medical examination on November 21, 2017. Jane Roe Decl. ¶ 5. She is “approximately 10 weeks pregnant.” Jane Roe Decl. ¶ 7.
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Shortly upon her arrival into ORR custody, Ms. Roe “identified a potential sponsor” who “is a family member, and U.S. citizen, and [who] has submitted an application.” White Decl. ¶ 4. ORR acknowledges that “[a]lthough additional documents, fingerprint results, and a home study are required,” ORR states that “if the background checks and home visits return favorable results, [ORR] estimate[s] the process of reunification would be completed within two week.” Id. Moreover, “ORR has not notified [Ms. Roe’s] parents of her pregnancy and does not plan to notify them.” Id. ORR has not made a final determination on whether she would be released to obtain an abortion, largely in light of the prospects of her sponsorship process, nor has she indicated that anyone is willing to assist her in scheduling or paying for an abortion absent assistance from ORR and its grantee.
Ms. Poe is a 17 year old unaccompanied minor in ORR custody who “is approximately 22 weeks pregnant.” White Decl. ¶ 4. She arrived in ORR “custody less than a month ago” and “was estimated to be approximately 9 weeks pregnant.” White Decl. ¶ 5. Ms. Poe “was subsequently determined to be significantly further along in her pregnancy.” Ms. Poe herself “informed her parents of her pregnancy and of her contemplation of abortion.” Id. After she spoke with her parents, Ms. Poe indicated to ORR on December 4, 2017 that “she no longer requested an abortion.” Id. Only last week did Ms. Poe change her mind again, indicating that she wanted an abortion. Jane Poe Decl. ¶ 5. Ms. Poe has not indicated that anyone is willing to assist her in scheduling or paying for an abortion absent assistance from ORR and its grantee.
ARGUMENT The Court should deny Plaintiffs Jane Roe’s and Jane Poe’s request for a TRO. To obtain a TRO, Plaintiffs must establish that they are “likely to succeed on the merits,” that they are “likely to suffer irreparable harm in the absence of preliminary relief” that “the balance of equities tips in
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[her] favor,” and that “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012). Plaintiffs cannot satisfy any of those requirements, and thus, their request for a TRO should be denied. I. Plaintiffs’ Request for a TRO Should be Denied Because They Cannot Show a
Likelihood of Success on the Merits. Plaintiffs’ request for relief fails at the first step because they are not likely to succeed on the merits of their claims. A. Plaintiffs Have Failed to Demonstrate a Likelihood of Success on the Merits of Their Fifth Amendment Undue-Burden Claim. Under the framework of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the government may pursue its interest in protecting life before fetal viability provided it does not do so in a manner that imposes an undue burden on the mother. After viability, the government may regulate or even proscribe abortion. Id. at 879. The government does not violate the rights outlined in Casey by declining to facilitate an abortion in circumstances like those Plaintiffs present. Importantly, Plaintiffs’ claim that ORR’s policies violate the Fifth Amendment—and instead that the Constitution in every factual circumstance requires the type of facilitation that would enable them to enter the United States for an elective abortion—is incorrect. First, under the D.C. Circuit’s en banc decision in Garza, the cases here are distinguishable and no undue burden has been imposed by the Government. Second, while we understand this Court is bound by Garza, we preserve the argument that Garza was wrongly decided for purposes of appeal. 1. Under Garza, Plaintiffs Have Not Shown an Undue Burden Applying the Garza decision, neither minor has shown that the government has imposed an undue burden. Judge Millett, for the en banc court, recognized that the ability to find a sponsor
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in a timely manner played an important role in determining whether there was a right to court ordered facilitation of the abortion by the government. See Garza, 874 F.3d at 738-39 (“centerpiece of the panel order” is the expeditious search for a sponsor and accepting that it is possible some “type[s] of short-term burden . . . could plausibly pass muster under Supreme Court precedent”); see id. at 739 (identifying five factual issues relating to promptly finding a sponsor that may be relevant to the right to court-ordered relief). In weighing these factors, what most troubled the en banc court in Ms. Doe’s case was that the government did not allege that “there was any prospect of finding a sponsor at all,” particularly “since no family member has been approved as a sponsor” or that “a non-family member could be identified, vetted, and take custody of J.D. within [the requested] eleven days.” Id. Adding to that factor was the long period of time that had passed since Ms. Doe made the decision to obtain an abortion and the length of the sponsorship search. See id. at 739, 741 (“J.D. is already into the second trimester of her pregnancy” and while “sponsorship . . . might be more optimal in the policy sense” for a child to make a difficult decision, the search for a sponsor had lasted “almost seven weeks” without a sponsor). This combination of factors, the Court held, rendered any further delay an undue burden.
In contrast, Ms. Roe has already “identified a potential sponsor” who “is a family member, and U.S. citizen, and [who] has submitted an application” to sponsor her. White Decl. ¶ 4. Moreover, ORR “estimate[s] the process of reunification would be completed within two weeks.” Id. And she is only ten weeks pregnant, meaning that there is time to complete the sponsorship process. In these circumstances, the government does not impose an undue burden in awaiting the completion of the sponsorship process to avoid the need to facilitate the termination of Ms. Roe’s pregnancy.
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In Ms. Poe’s case, she has equivocated on whether she wants an abortion and decided only last week that she would like to obtain one. Jane Poe Decl. ¶ 5. As recently as December 4, 2017, she determined that she wanted to keep the baby. White Decl. ¶ 5. She is 22 weeks pregnant, id., and she has not made any further factual showing.
Importantly, nobody has determined that Ms. Poe is making a considered and informed decision here. As the Supreme Court has long recognized, “during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” Bellottti v. Baird, 443 U.S. 622, 635 (1979). Unlike Ms. Doe, Ms. Poe does not have a guardian at litem to assure the Court that her interests are being pursued in this litigation. See Fed. R. Civ. P. 17(b) & (c).2 And ORR, her current guardian and the only appropriate entity capable of acting on her behalf, see Fed. R. Civ. P. 17(a), has not made a best interest determination because Ms. Poe changed her mind so recently and immediately sought judicial relief.
Because of Ms. Poe’s equivocation, she is now approaching the point of viability, if she is not already there. In Casey, the Court held that the undue-burden framework applies only before a fetus is viable, regardless of “whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today [in 1993], or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future.” Id. at 860. “The time when viability is achieved may vary with each pregnancy,” Webster v. Reprod. Health Servs., 492 U.S. 490, 516–17 (1989); id. at 527 (O’Connor, J., concurring) (same), and here Ms. Poe does not meet her burden regarding whether viability has been reached in her pregnancy, which is at 22 weeks. See M. Rysavy et al., Between-Hospital
2 Ms. Roe is also appearing in this Court without a guardian at litem. 7

Case 1:17-cv-02122-TSC Document 66 Filed 12/17/17 Page 8 of 15
Variation in Treatment and Outcomes in Extremely Preterm Infants, 372 N. Engl J Med 1801 (2015) (23% of fetuses born at 22 weeks and provided medical treatment survive); America College of Obstetricians and Gynecologists, Obstetric Care Consensus (Oct. 2017) (“A review of studies published over the past three decades reveals a progressive increase in the rate of survival for infants born at 22, 23, 24, and 25 weeks of gestation.”). In the absence of such a determination, the undue burden standard does not apply under Casey's own terms. Nor has Ms. Poe shown that a post-viability abortion would be appropriate because the pregnancy endangers her life or health. See Casey, 505 U.S. at 846.
And assuming the undue burden standard applies, Ms. Poe does not allege that HHS has placed any burden in her path -- notably absent in their pleading is the fact that her situation is delayed not because ORR erected an undue burden in her path to obtaining an abortion, but because she herself decided not to get an abortion until only last week.
Moreover, unlike in Ms. Doe’s case where she obtained a judicial bypass from a Texas state court, there has been no similar determination that either Ms. Roe or Ms. Poe, both 17 year old minors, are sufficiently mature to make their abortion decision. See Bellotti, 443 U.S. at 635. While Ms. Roe and Ms. Poe are in States that do not require that determination to be made by a judge, ORR’s mission of protecting the interests of the child is required as a matter of federal law, and some determination is needed to address this issue beyond that child’s own independent decision. 6 U.S.C. § 279(b)(1)(A), (B) (stating that ORR’s Director is responsible for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” and for “implementing policies with respect to the care and placement of unaccompanied alien children.”). The Supreme Court has held that “[t]o promote the State’s profound interest in potential life, throughout the pregnancy the State may take
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measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated so long as their purpose is to persuade the woman to choose childbirth over abortion.” Casey, 505 U.S. at 878. Given that neither Plaintiff has appeared before a state judge or other impartial body that can ensure their decisions are informed, the existence of an informed choice cannot be presumed.
In short, the facts presented here in both Ms. Roe and Ms. Poe’s cases are distinguishable from Jane Doe, and do not similarly establish a likelihood of success on the merits. And Ms. Roe’s case in particular does not call for immediate judicial intervention, given that she is early in pregnancy and a sponsor has been found and can be approved in two weeks.
2. The Due Process Clause Does Not Require the Government to Facilitate an Abortion, Given the Government’s Legitimate Interest in Protecting Life and the Ability of an Alien to Return to Her Country of Nationality
Defendants concede that for purposes of this TRO, they are bound by the D.C. Circuit’s October 24, 2017 en banc decision insofar as the law and the facts contained herein are indistinguishable. However, to preserve the issue, Defendants again argue that the government’s refusal to facilitate an elective abortion does not impose an undue burden in violation of the Fifth Amendment. Plaintiffs’ Memorandum ISO App. for TRO at 4-5. Under Casey, the government is entitled to pursue its legitimate interests, provided that it does not impose an “undue burden” on a woman’s choice to terminate her pregnancy before viability. Id. at 870. Plaintiffs cannot show that an alleged ORR policy of protecting fetal life necessarily imposes such an undue burden in every application, or even a large fraction of applications, for one fundamental reason: an alien who illegally crosses the border and is detained pending a determination of whether she will be permitted to remain in the United States retains the power to withdraw her application for admission and may depart the United States to return to her home country, cf. Parra v. Perryman,
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172 F.3d 954, 958 (7th Cir. 1999) (“An alien in Parra’s position can withdraw his defense of the removal proceeding and return home to his native land, thus ending his detention immediately. He has the keys in his pocket.”), where she may presumably take the appropriate steps to exercise her right to an abortion there. Plaintiffs here have not put forward any facts relating to their ability to return to their country of nationality. See Garza, 874 F.3d at 740 (in the case of J.D., voluntary departure “not a constitutionally adequate choice either given both the life-threatening abuse that J.D. claims a . . . and her potential claims of legal entitlement to remain in the United States”).
Given these points, Plaintiffs are incorrect in claiming that the government has imposed an undue burden on their abortion decision.
B. Plaintiffs have not Demonstrated a Likelihood of Success on their Related Claims. Finally, Plaintiffs have no likelihood of success on their claim that the government has
violated their rights by providing counseling or including the parents of the children in the decision. Plaintiffs’ Memorandum ISO App. for TRO at 5-6. They assert that ORR “requires minors to tell parents and/or sponsors about their pregnancies and abortion decisions even if they do not wish to do so—otherwise Defendants will tell those parents and sponsors themselves over the minors’ objections—and compels minors to attend ‘life-affirming’ spiritual counseling.” Id. at 5. This, they claim, violates their speech rights and abortion rights.
There is no issue with respect to Ms. Poe and Ms. Roe on parental notification. In Ms. Roe’s case, “ORR has not notified her parents of her pregnancy and does not plan to notify them.” White Decl. ¶ 4. In Ms. Poe’s case, she herself already disclosed her pregnancy and consideration of abortion to her parents. White Decl. ¶ 5. Neither claim the contrary in their declarations. In any event, it is appropriate for HHS to confer with the parents of a minor on weighty medical matters like an abortion, and that consultation in no way imposes an undue burden on the minor’s decision.
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With respect to counseling, Plaintiffs are unlikely to show it to be a constitutional violation. The government only impermissibly compels speech when it forces a speaker to convey a message and “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Rumsfeld v. FAIR, 547 U.S. 47, 63 (2006); see Nat’l Assoc. of Manufacturers v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (a “compelled-speech violation’ occur[s] when ‘the complaining speaker’s own message was affected by the speech it was forced to accommodate’”); see also Nat’l Assoc. of Manufacturers v. SEC, 800 F.3d 518, 521-23 (D.C. Cir. 2015) (collecting compelled speech cases). It is not compelled speech when the individual is not required to say anything. Snyder v. Phelps, 562 U.S. 443, 458 (2011) (The First Amendment contemplates that listeners may be exposed to messages that “in someone’s eyes are misguided.”).
Indeed, HHS serves in the role of the child’s legal custodian and is directed to place UACs “in the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while in HHS custody—that is, until they are released to a suitable sponsor, obtain lawful status or leave the country and thus are no longer unlawfully present. See 6 U.S.C. § 279(g); 8 U.S.C § 1232(b)(1), (g). HHS provides an extensive amount of speech to UACs: on-campus schooling, regular psychological counseling as needed, regular case management and social work discussions, as well as information about their medical care. When caring for a child’s medical needs, HHS exercises custodial responsibility, and in these circumstances must consider child welfare. In addressing the UAC’s welfare, and more specifically, the needs of a pregnant minor, ORR provides pregnancy counseling in this custodial capacity. Despite Plaintiffs’ assertion that they are being “compelled” to speak during counseling, ECF No. 1 ¶ 57, they are not forced to engage in discourse, or respond to any inquiries, and may remain completely silent during any such counseling. Finally, the Supreme Court and various lower courts thereafter have recognized that
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the government imposes no undue burden or First Amendment violation when it requires the provision of specific, and often extensive, information prior to an abortion. See, e.g., Casey, 505 U.S. at 881–84. ORR’s decision to provide options counseling and information before an abortion, from ORR’s grantees’ own medical and counseling professionals, is sustainable on the same grounds.
For these reasons, Plaintiffs’ compelled-speech claim has no likelihood of success. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”).
* * * Accordingly, Plaintiffs have failed to demonstrate a likelihood of success on the merits of their claims. II. Plaintiffs Have Not Established that a TRO Is Needed to Prevent Irreparable Harm. Plaintiffs cannot obtain relief for the independent reason that they have not established irreparable harm. Plaintiffs contend that, unless this Court grants the TRO, they will face the irreparable injury of being forced to carry the pregnancy to term against their will. Plaintiffs’ Memorandum ISO App. for TRO at 7-8. This claim fails for both Ms. Roe and Ms. Poe. Ms. Roe’s claimed injury provides no basis for the injunctive relief that she seeks. The issue before this Court is not whether Ms. Roe will have to carry a pregnancy to full term, but rather whether she can obtain a court order enabling her to have an abortion as early as this week. Ms. Roe has weeks, not a few days, before viability. She has a sponsor lined up who is only awaiting a background check, which could be completed in two weeks’ time. White Decl. ¶ 4. She need not compel the government to facilitate her abortion to an abortion this week to vindicate
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the right that she claims. Because Ms. Roe’s fetus is still weeks away from viability, she will not be irreparably injured if she does not obtain effectively irreversible relief now, and the Supreme Court has noted evidence that even second trimester abortions present few complications. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016); Gonzales, 550 U.S. at 164. In Ms. Poe’s case, her situation is delayed in part because she changed her mind regarding whether she requested abortion as recently as December 4, 2017, and only decided last week that she again wanted the procedure. White Decl. ¶ 5. In both cases, granting immediate relief would disrupt the status quo and would irreversibly harm the government’s strong interests in not facilitating the termination of fetal life without an opportunity for a full adjudication on the merits. III. The Balance of Hardships and Public Interest Weigh Against Plaintiffs’ Request for
Relief. The balance of the hardships and the public interest weigh against granting Plaintiffs’ motion. The government has a legitimate and significant interest in ensuring that it does not affirmatively facilitate an abortion, especially, as in the case of Ms. Poe, a later-stage abortion. That interest would be completely extinguished if Plaintiffs’ motion is granted and Plaintiffs have an abortion this week or next week. The public interest also weighs against incentivizing illegal immigration by compelling the federal government to facilitate an unaccompanied alien child’s request for an elective abortion. Cf. Landon v. Plsencia, 459 U.S. 21, 34 (1982) (“The government's interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.”).
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Case 1:17-cv-02122-TSC Document 66 Filed 12/17/17 Page 14 of 15 IV. Any Ruling by this Court Should Allow Time for Appellate Review.
Defendants request that any disposition by the Court permit the unsuccessful party sufficient time to vindicate its position through emergency appeal. If the Court issues a TRO, given the magnitude of the interests in play—including the irreversible nature of abortion—any ruling by this Court on the motion should be stayed pending appeal with respect to both minors. If the Court is not willing to enter a stay pending appeal for both minors, because Ms. Roe is only 10 weeks and is very likely to have a sponsor soon, the Court should grant a stay of 2 weeks with respect to Ms. Roe. At a minimum, the Court should grant a stay of 24 hours to allow the government an opportunity to seek emergency relief from the D.C. Circuit and the Supreme Court.
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CONCLUSION

For the foregoing reasons, the Court should deny Plaintiffs’ request for a temporary

restraining order.

DATED: December 17, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

AUGUST E. FLENTJE Special Counsel Office of Immigration Litigation

ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

Attorneys for Defendants

BY: /s/ W. Daniel Shieh W. DANIEL SHIEH SABATINO F. LEO JOSEPH DARROW Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-9802 Fax: (202) 305-1890 daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov joseph.a.darrow@usdoj.gov

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Case 1:17-cv-02122-TSC Document 66-1 Filed 12/17/17 Page 2 of 2

 
 Case 1:17-cv-02122-TSC Document 67 Filed 12/17/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated,
Plaintiff, v.
ERIC HARGAN, Acting Secretary of Health and Human Services;
STEVEN WAGNER, Acting Assistant Secretary for Administration for Children and Families, in his official and individual capacity; and
SCOTT LLOYD, Director of Office of Refugee Resettlement, in his official and individual capacity,
Defendants.

No. 1:17-cv-02122

OPPOSITION TO MOTION FOR TEMPRORY RESTRAINING ORDER OF DEFENDANTS WAGNER AND LLOYD (IN THEIR INDIVIDUAL CAPACITIES)
Defendants Steven Wagner and Scott Lloyd have been named as Defendants in the Amended Complaint in this action, in both their official and individual capacities. As the government has noted, Wagner and Lloyd may not be sued in an individual capacity for equitable relief relating to their performance of official duties. See, e.g., Auleta v. United States Dep’t of Justice, No. CV 11-2131 (RWR), 2015 WL 738040, at *4 (D.D.C. Feb. 20, 2015). But because Plaintiffs also seek damages against Wagner and Lloyd in their individual capacities— based on allegations that they “acted intentionally and unlawfully in violating [Plaintiffs’] clearly established rights” under the Constitution, Am. Compl. ¶¶ 64, 67—Wagner and Lloyd have a vested interest in defending the constitutionality of ORR’s policies.
Wagner and Lloyd thus have an interest in these TRO proceedings to the extent they

Case 1:17-cv-02122-TSC Document 67 Filed 12/17/17 Page 2 of 5
address the merits of Plaintiffs’ constitutional claims. In addition to the arguments advanced by the government—in which Wagner and Lloyd join—Plaintiffs are unlikely to succeed on their First or Fifth Amendment claims for an additional reason: Plaintiffs have not entered the United States and do not have any substantial connections with this country, so they cannot rely upon the unenumerated right to abortion. “It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Aliens who have “effected an entry” into the United States are “person[s]” protected by the Fifth Amendment, regardless of “whether their presence here is lawful.” Id. at 678. But the same cannot be said for aliens “who have not yet gained initial admission to this country.” Id. at 682; see also Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”). When an alien is “stopped at the boundary line” and detained, there is no entry “unless and until her right to enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230 (1925). The fact that the alien may be detained within the United States does not alter this fact; the “detention of an alien in custody pending determination of [her] admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 357 U.S. 185, 188 (1958). An immigrant held at Ellis Island for nearly two years (and subject to an order of indefinite detention) thus “was ‘treated,’ for constitutional purposes, ‘as if stopped at the border.’” Zadvydas, 533 U.S. at 693 (quoting Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 213 (1953)).
Plaintiffs’ status here is no different. Nothing in the Amended Complaint or the declarations supporting the TRO suggests that Jane Roe or Jane Poe have any connection to this
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country. See Roe Declaration (Dkt. 63-2) ¶ 4 (noting she “was detained upon arrival” in the United States); Poe Declaration (Dkt. 64-1). Even if they were no longer detained in federal custody, they would remain “in theory of law at the boundary line,” having “gained no foothold in the United States” unless and until their legal right to enter was determined. Kaplan, 267 U.S. at 230. Thus, they are not “within the United States,” and the Due Process Clause does not apply. Zadvydas, 533 U.S. at 693; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990).
Even aliens who have effected entry into the United States could not assert a constitutional right to an elective abortion absent connections to this country. Aliens undoubtedly receive some level of constitutional protection “when they have come within the territory of the United States and developed substantial connections with this country.” Verdugo-Urquidez, 494 U.S. at 271. But the precise scope of rights due is not fixed: as an alien’s connections to the country increase, so do the constitutional guarantees available to her. See Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (explaining that an alien is “accorded a generous and ascending scale of rights as he increases his identity with our society”); see also Zadvydas, 533 U.S. at 694.
Entry alone confers baseline protections against undue harm, but not affirmative liberties. “Mere lawful presence in the country creates an implied assurance of safe conduct and gives [an alien] certain rights.” Eisentrager, 339 U.S. at 770. These include basic negative rights like freedom from “wanton or malicious infliction of pain or gross physical abuse” by the government. Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014). An alien’s constitutional guarantees “become more extensive and secure when [she] makes preliminary declaration of intention to become a citizen.” Eisentrager, 339 U.S. at 770; see also Plasencia, 459 U.S. at 32. These rights only “expand to those of full citizenship upon naturalization.” Id. at 770. It is
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therefore unsurprising to find policies that might be “unacceptable if applied to citizens” are often the status quo in the immigration context. Demore v. Kim, 538 U.S. 510, 522 (2003).1
Courts have routinely acknowledged these principles, holding that unlawfully present aliens are not entitled to the same affirmative liberties enjoyed by American citizens. See, e.g., United States v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011) (right to keep and bear arms under the Second Amendment); United States v. Carpio-Leon, 701 F.3d 974, 982 (4th Cir. 2012) (same); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam) (same); Kleindienst, 408 U.S. at 762, 769-70 (freedom of speech under the First Amendment); Galvan v. Press, 347 U.S. 522, 531-32 (1954) (freedom of association under the First Amendment). The substantive-due-process right to an elective abortion is, at best, analogous to these liberties, which have never been accorded to aliens lacking substantial connections to the United States.
To hold otherwise would defy logic. It would suggest that the full panoply of affirmative liberties accorded by substantive due process is at the base of the ascending scale of rights, while the full extent of procedural due process is not. See Plasencia, 459 U.S. at 34 (noting that the extent of procedural due process afforded to aliens “varies with the circumstances”). There is no reason to suppose that the unenumerated right to an elective abortion comes before core enumerated liberties such as the right to engage in political speech or the right to keep and bear arms. See, e.g., Kleindienst, 408 U.S. at 762; Portillo-Munoz, 643 F.3d at 442. And the Supreme Court has never implied in its abortion cases that this substantive-due-process right extends to

1

The Constitution is, of course, not the only law that governs the treatment of aliens. See

Garza v. Hargan, 874 F.3d 735, 750 (D.C. Cir. 2017) (en banc) (Henderson, J., dissenting)

(noting the U.N. Convention Against Torture and federal laws imposing liability on government

officials who commit torts or crimes). And Congress has charged ORR with “ensuring that the

interests of the child are considered in decisions and actions relating to the care and custody of

an unaccompanied alien child,” “implementing policies with respect to the care and placement of

unaccompanied alien children,” 6 U.S.C. § 279(b)(1)(A), (B). Denial of a TRO will not alter

ORR’s obligation to provide care consistent with its statutory and regulatory duties.

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unlawfully present aliens with no ties to this country. See, e.g., Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992) (plurality opinion).
Absent evidence of any connection—let alone a substantial connection—with the United States prior to detention, Plaintiffs cannot claim the full extent of affirmative liberties afforded to citizens, including the substantive-due-process right to an elective abortion. To hold otherwise would ignore decades of “well established” Supreme Court precedent. Zadvydas, 533 U.S. at 693.
CONCLUSION For all these reasons, Defendants Wagner and Lloyd respectfully request that this Court deny the TRO. Dated: December 17, 2017
Respectfully submitted,

Patrick Strawbridge CONSOVOY MCCARTHY PARK PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 (617) 227-0548 patrick@consovoymccarthy.com

s/ William S. Consovoy William S. Consovoy, D.C. Bar No. 493423 Caroline A. Cook CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Boulevard Suite 700 Arlington, VA 22201 will@consovoymccarthy.com caroline@consovoymccarthy.com
Michael H. Park CONSOVOY MCCARTHY PARK PLLC 3 Columbus Circle, 15th Floor New York, NY 10019 (212) 247-8006 park@consovoymccarthy.com

5

 
 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 17- 5276

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, JANE ROE on behalf of herself and
others similarly situated; and JANE POE, Plaintiffs-Appellees,
v.
ERIC D. HARGAN, et al., Defendants-Appellants.

RESPONSE TO COURT ORDERS

CHAD A. READLER Acting Assistant Attorney General Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation Civil Division

AUGUST E. FLENTJE Special Counsel Civil Division
CATHERINE H. DORSEY Attorney, Appellate Staff Civil Division
W. DANIEL SHIEH SABATINO F. LEO JOSEPH A. DARROW Trial Attorneys Office of Immigration Litigation U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044

Appellants Eric Hargan, Steven Wagner, and Scott Lloyd, in their official capacities, hereby respond to this Court’s briefing order, its extension order, and its order regarding the ORR decision document.
As an initial matter, we understand that U.S. Immigration and Customs Enforcement (ICE), a component of the U.S. Department of Homeland Security (DHS), will imminently take custody of Jane Roe and, upon transfer, intends to process her for release on her own recognizance. That release may occur yet today. Once that release has occurred, the government intends to move the Court to dismiss this appeal. See Fed. R. App. P. 42(b). I. Appellants’ Responses to Extension Order
In this Court’s extension order, it directed the government to provide a “precise timetable for when Jane Roe will be transferred to Homeland Security and specifically whether and precisely when, upon her transfer, she will be permitted to obtain an abortion.”
This morning, ORR determined that Ms. Roe is, in fact, nineteen years old, not seventeen as previously believed. (Attached as Ex. 1). This determination was made after ORR obtained a copy of Ms. Roe’s certificate of birth from her home country on December 18, 2017. Ms. Roe had previously represented that she was 17 years old. Once it determined that Ms. Roe was 19 years old, it immediately began the process to
1

transfer Ms. Roe to ICE custody.1 That process has not quite concluded, but should
conclude very soon. Once ICE takes custody, it intends to process Ms. Roe for release
on her own recognizance, so she will no longer be in government custody. We will
promptly advise the Court once that occurs, and anticipate it may occur tonight. Once
she is released, her release will render moot the portion of the temporary restraining
order requiring the government to “allow J.R. * * * to be transported * * * to an abortion
provider,” TRO at 5 (ECF No. 73), and in any event the government has complied with
that order by releasing Ms. Roe from custody.
II. Appellants Responses to This Court’s Three Questions Posed in its December 18, 2017 Briefing Order
In its briefing order, this Court asked the parties to address
(1) whether Jane Roe’s independent request for and decision to undergo an abortion fully complies with the relevant state law governing abortions by minors, and (2) whether the Office of Refugee Resettlement (ORR) has yet made an individualized decision regarding its view concerning why termination of the pregnancy would not, in its judgment, be in Jane Roe’s best interests and, if so, to submit that decision and analysis under seal with its reply brief, and (3) if no such individualized decision has been made (see DCT Tr. 19), identify on what basis ORR has concluded that an abortion would not be in Jane Roe’s best interests
In response to the Court’s three questions posed in its briefing order, the
government provides the following information. First, we are neither aware of nor
1 Plaintiff has advised the government that Ms. Roe maintains that she is 17 years old and reserves all rights to contest the government’s determination that she is an adult and any other rights she may have.
2

asserting any state-law impediment to Ms. Roe’s request for an abortion. On the second and third questions, ORR has not yet determined whether – in considering the interests of the child in decisions relating to her care and custody – it would facilitate an abortion, because it was allowing the sponsorship process and other case management matters (including verification of age) to unfold before making such a determination. III. Response to Order Regarding ORR Decision Document
In an order entered early this afternoon, this Court ordered that the “government either file on this court’s public docket, with redactions necessary to avoid revealing Jane Poe’s personal or identifying information, a copy of the ‘Decision by Director Scott Lloyd for Jane Poe with attached note to file’ that was filed under seal on the district court docket as ECF No. 72; or show cause why it cannot do so.”
Because the government intends to soon dismiss its appeal, we respectfully submit that the district court should be permitted to address issues relating to the public release of the sealed document in the ordinary course, and that this Court should not order the document’s release in the first instance. Importantly, the district court has moved promptly to address the public filing of the document. See Minute Order (Dec. 19, 2017) (requiring government to file redacted version of ORR decision); ECF 83 (government response to order requesting additional time to assert privilege, but stating that “the court can file the document on the public record with the redactions made by Plaintiff without disclosing personal privacy information relating to Ms. Poe”); ECF 85
3

(response by plaintiffs to government filing). We respectfully request that this Court

allow the district court to address the issue in the first instance.

DATED: December 19, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

BY: /s/ August E. Flentje AUGUST E. FLENTJE Special Counsel

ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

CATHERINE H. DORSEY Attorney, Appellate Staff Civil Division

SABATINO F. LEO W. DANIEL SHIEH JOSEPH A. DARROW Trial Attorneys Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-9802 Fax: (202) 305-1890 daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov joseph.a.darrow@usdoj.gov

4

CERTIFICATE OF SERVICE I certify that on December 19, 2017, I electronically filed the foregoing with the Clerk of Court by using paper copy, and will deliver a copy to all counsel of record.
/s/ August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division
5

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Response complies with the type-volume limitation of Fed. R. App. P. 27 because it contains 783 words. This Response complies with the typeface and the type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Garamond typeface.
/s/ August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division
6

 
 Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

No. 17-cv-02122-TSC

PLAINTIFFS’ MOTION FOR AN ORDER REQUIRING NOTICE TO, OR REGARDING, ADDITIONAL CLASS MEMBERS
AND REQUEST TO SHORTEN DEFENDANTS’ TIME IN WHICH TO RESPOND
In opposing Plaintiffs’ motion for class certification, Defendants asserted that the proposed class lacked numerosity, because “Ms. Doe is a very rare case.” Defendants’ Opposition to Plaintiff’s Motion for Class Certification, at 22 (ECF 53). Defendants characterized the proposed class as one “with (at most) one plaintiff,” id. at 3, and represented that “there are currently no pregnant UCs in ORR’s care who seek to terminate their pregnancies.” Id. at 2. Recent developments, however, have made it obvious that this is not the case. Within a few weeks, two additional members of the putative class became known to Plaintiffs’ counsel. It is now clear that Ms. Doe’s was not “a very rare case,” and that the proposed class will not be a class of “(at most) one.”1

1 Defendants’ opposition to Plaintiffs’ motion for class certification was filed on November 20. Jane Roe requested an abortion on or about November 21, see Declaration of Jane Roe ¶ 5 (ECF 63-2), and Jane Poe requested an abortion prior to December 4, see Declaration of Jonathan White ¶ 5 (ECF 66-1) (The actual date of Ms. Poe’s request is in the sealed ORR Decision Document, ECF 72.) Whether or not Defendants’ representation was accurate when made, it was certainly incorrect a day or two later. Notably, however, Defendants did not correct their representation in the weeks that followed, although they wanted this Court to rely on it in ruling on the motion for class certification.

Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 2 of 6
In opposing the motion for class certification, Defendants also asserted that “Defendants’ ‘policies’ do not apply to the putative class as a whole, making class-wide relief improper.” Id. at 23. But the ORR Decision Document regarding Plaintiff Poe, as now on the public record, makes clear that ORR does indeed have a policy that would prevent any unaccompanied minor in its custody from obtaining an abortion, except, perhaps, one for whom continuation of pregnancy would be life-threatening. See Redacted ORR Decision Document at 7-8 (ECF 87-1).
The government has confirmed that during fiscal year 2017 (October 1, 2016, through September 30, 2017), ORR had 420 pregnant unaccompanied minors referred to its custody. ECF 53 at 5.
Given these facts, and given that this Court has already found that ORR’s policy likely violates the constitutional rights of pregnant unaccompanied minors in its custody, see Temporary Restraining Order (October 18, 2017) at 1 (ECF No. 20); Temporary Restraining Order (December 18, 2017) at 4 (ECF No. 73), protection of the constitutional rights of ORR detainees who are putative class members demands that ORR be required to provide certain notice to putative class members and/or putative class counsel. The need for such notice is particularly acute given the isolation and vulnerability of the putative class members, and their likely ignorance of their rights under U.S. law. These are minors in a foreign country without their parents, detained by and completely under Defendants’ control. Many do not speak English and have no accessible support system. In both the case of both Jane Roe and Jane Poe, ORR refused to act on their requests for abortions for several weeks; had Plaintiffs’ counsel not learned of their situations by happenstance, neither young woman would have been able to get the care to which she was entitled.
2

Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 3 of 6
An appropriate way to ensure that putative class members have information regarding their legal rights, and access to counsel to protect those rights, is to certify the proposed class, at least on a provisional basis. While Plaintiffs’ motion for class certification is fully briefed, if the Court is not yet ready to make a final ruling on that motion, provisional certification is permissible, subject to later amendment.2 See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015) (provisionally certifying a class of immigration detainees regarding an allegedly unlawful detention policy); Kirwa v. United States Dep’t of Defense, ___ F. Supp. 3d ___, 2017 WL 4862763 (No. 17-cv-1793 (ESH) (D.D.C. Oct. 25, 2017) (granting provisional class certification in context of granting preliminary injunction); Bame v. Dillard, 2008 WL 2168393 at *9 (No. 05-cv-1833) (D.D.C. May 22, 2008) (conditionally certifying class “without prejudice to Defendant’s renewed objections after the close of discovery”); Chang v. United States, 217 F.R.D. 262, 274 (D.D.C. 2003) (granting provisional class certification before defendants had filed their opposition to certification); Kifafi v. Hilton Hotels Ret. Plan, 189 F.R.D. 174, 178 (D.D.C. 1999) (granting provisional class certification subject to amendment after a statute of limitations question was resolved); Foltz v. U.S. News & World Report, Inc., 106 F.R.D. 338 (D.D.C. 1984) (granting provisional class certification); Lightfoot v. District of Columbia, 246 F.R.D. 326, 334 n.6 (D.D.C. 2007) (courts may “reassess class certification rulings as the case develops, and certify a class or alter a certification decision if necessary in light of developments in the case”).
Once a class is certified, or provisionally certified, the Court can and should require appropriate notice to class members and class counsel. Once a class is certified, Plaintiffs’ counsel have an attorney-client relationship with each class member, and therefore both the
2 Plaintiffs moved for provisional certification as an alternative request in their motion for class certification. See ECF 18 at 1 n.2.
3

Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 4 of 6
attorneys and the clients have a right to communicate with each other. “Class counsel represents all class members as soon as a class is certified.” Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1207 n.28 (11th Cir. 1985); Van Gemert v. Boeing Co., 590 F.2d 433, 440 n.15 (2d Cir. 1978) (“A certification under [then-Rule 23(c)] makes the Class the attorney’s client for all practical purposes.”); Tedesco v. Miskin, 629 F. Supp. 1474, 1483 (S.D.N.Y. 1986) (“A lawyer who represents the named plaintiff in a class which has been certified immediately assumes responsibility to class members for diligent, competent prosecution of the certified claims.”). Class counsel thus have a right to communicate with their clients, and that requires knowing who their clients are. Class members likewise have a right to communicate with their counsel.
Accordingly, after certifying or provisionally certifying a class in this case, the Court should (1) order the Defendants to notify all pregnant unaccompanied minors in their custody of the existence and nature of this lawsuit and of their right to consult class counsel if they so wish, such notice to be provided in a language and in a manner (written or oral) that the unaccompanied minor can understand; and (2) order the Defendants to notify class counsel of the name and location of all pregnant unaccompanied minors in their custody, and contact information for the shelters where such persons are detained, within two business days of becoming aware that a pregnant unaccompanied minor is in their custody, and an indication for each minor whether she has requested an abortion. If a pregnant unaccompanied minor subsequently requests an abortion, notice of that request should be provided within two business days of the request. Only with such requirements in place can the Court have some degree of confidence that Defendants will not continue to violate the constitutional rights of the children in their custody and care.
4

Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 5 of 6

Finally, given the likelihood that additional pregnant unaccompanied minors are even

now being blocked from accessing abortion, being denied qualified, non-directive counseling,

and being coerced into receiving religiously-based anti-abortion propaganda, or will be in that

situation in a matter of days, Plaintiffs also respectfully request that Defendants’ time in which to

respond to this motion be shortened, and that they be directed to file any response on or before December 27, 2017.3

A proposed order is submitted with this motion.

Date: December 22, 2017

Respectfully submitted,

/s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800; Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org

Brigitte Amiri (admitted pro hac vice) Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633; Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org

Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW

3 Defendants have already opposed Plaintiffs’ motion for class certification; their opposition to this motion is accordingly presumed.

5

Case 1:17-cv-02122-TSC Document 90 Filed 12/22/17 Page 6 of 6
Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493; Fax (415) 255-8437 mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500; Fax (213) 977-5299 mgoodman@aclusocal.org Attorneys for Plaintiff
6

Case 1:17-cv-02122-TSC Document 90-1 Filed 12/22/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

[PROPOSED] ORDER Upon consideration of Plaintiffs’ Motion for an Order Requiring Notice To, or Regarding, Additional Class Members, and Request to Shorten Defendants’ Time in which to Respond, any response thereto, the previously-filed briefs on class certification, and the entire record in this case, the Court concludes as follows: 1. It appears, for reasons that will be set out in a memorandum opinion to follow, that Plaintiffs’ motion for class certification should be provisionally granted. As best as can be determined at this time, in advance of discovery, the proposed class satisfies the requirements of Fed. R. Civ. P. 23(a) because a class of all pregnant UCs who are or will be in the legal custody of the federal government is so numerous that joinder is impracticable, because the actions of Defendants have led to the denial of pregnancy-related care to UCs that is constitutionally required to be available and raise questions of fact and law common to the class, because the named Plaintiffs’ claims are typical of the claims held by members of the class, and the named Plaintiffs and their attorneys will adequately and fairly represent the interests of the class. It likewise appears that the proposed class satisfies the requirements of Rule 23(b)(2) because the

Case 1:17-cv-02122-TSC Document 90-1 Filed 12/22/17 Page 2 of 3
Defendants are acting in a manner generally applicable to the class, thereby making appropriate preliminary and permanent injunctive relief with respect to the class as a whole. The fact that Plaintiffs Doe and Roe have now had abortions does not disqualify them as class representatives where, as here, the class is highly fluid and the harm suffered by any individual class member will last, at most, only a matter of weeks.
2. It additionally appears, for reasons that will be set out in a memorandum opinion to follow, that Defendants’ class-wide policy violates the constitutional rights of plaintiff class members, and that notice to class members regarding their legal rights, and notice to class counsel regarding the identities of class members, is essential to protecting the constitutional rights of plaintiff class members.
For these reasons, it is hereby ORDERED that Plaintiff’s Motion for Class Certification is GRANTED [or, alternatively, is PROVISIONALLY GRANTED]; it is further ORDERED that J.D., by her next friend and guardian ad litem, Rochelle Garza, on behalf of J.D. and others similarly situated, and Jane Roe, on behalf of herself and others similarly situated, are [provisionally] certified as the representatives of a class pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The class is defined as all pregnant unaccompanied immigrant minors who are or will be in the legal custody of the federal government; it is further ORDERED that the Court [provisionally] appoints as class counsel Arthur B. Spitzer and Scott Michelman from the American Civil Liberties Union (ACLU) Foundation of the District of Columbia; Brigitte Amiri, Meagan Burrows, Jennifer Dalven, Lindsey Kaley, and Daniel Mach from the ACLU Foundation; Mishan R. Wroe from the ACLU Foundation of
2

Case 1:17-cv-02122-TSC Document 90-1 Filed 12/22/17 Page 3 of 3
Northern California; and Melissa Goodman from the ACLU Foundation of Southern California; it is further
ORDERED that until this Court rules on Plaintiffs’ pending motion for a preliminary injunction on behalf of the class, Defendants must notify all pregnant unaccompanied minors in their custody of the existence and nature of this lawsuit and of their right to consult class counsel if they so wish, such notice to be provided in a language and in a manner (written or oral) that the unaccompanied minor can understand; it is further
ORDERED that Defendants shall notify class counsel of the name and location of all pregnant unaccompanied minors in their custody, and contact information for the shelters where such persons are detained, within two business days of becoming aware that a pregnant unaccompanied minor is in their custody (or for pregnant minors already in ORR custody, within two business days of this Order, such notice to include an indication for each minor of whether she has requested an abortion, and should a pregnant unaccompanied minor subsequently request an abortion, a notice of that request shall be provided to class counsel within two business days of her request [; and it is further
[ORDERED that this provisional class certification is subject to reconsideration and amendment at any time, on motion of any party or sua sponte, for good cause shown.]

Dated: December ___, 2017

______________________________ Tanya S. Chutkan United States District Judge

3

 
 No. 17-654

IN THE

Supreme Court of the United States
___________

ERIC HARGAN, et al., v.

Petitioners,

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D., Respondent. ___________

On Petition for a Writ of Certiorari
to the United States Court of Appeals for the District of Columbia Circuit
___________

BRIEF IN OPPOSITION OF
ROCHELLE GARZA, AS GUARDIAN AD LITEM
TO UNACCOMPANIED MINOR J.D. ___________

BRIGITTE AMIRI JENNIFER DALVEN MEAGAN BURROWS AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004

CARTER G. PHILLIPS* SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 cphillips@sidley.com

Counsel for Respondent Rochelle Garza, Guardian Ad Litem

December 4, 2017

* Counsel of Record

[Additional Counsel on Inside Cover]

DAVID COLE DANIEL MACH AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street N.W. Washington, D.C. 20005
MELISSA GOODMAN AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017

ARTHUR B. SPITZER SCOTT MICHELMAN AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street N.W. Washington, D.C. 20005
MISHAN R. WROE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111

QUESTION PRESENTED Whether this Court should review a court of appeals’ fact-bound decision denying an emergency stay pending appeal for the sole purpose of vacating the decision, where the decision did not resolve any merits question raised by respondent’s complaint, and where the petitioners may seek this Court’s review of any future merits determinations.
(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................... i

TABLE OF AUTHORITIES ................................. iv

INTRODUCTION ................................................. 1

COUNTERSTATEMENT OF THE CASE ........... 5

A. Facts ......................................................... 5

B. Procedural History................................... 6

C. Post-TRO Events...................................... 10

REASONS FOR DENYING THE PETITION ..... 13

I. THE DECISION BELOW DOES NOT PRESENT A LEGAL ISSUE WORTHY OF THIS COURT’S REVIEW ............................. 13

II. MS. DOE’S CLAIMS REGARDING THE TREATMENT OF PREGNANT MINORS ARE NOT MOOT .......................................... 17

III. VACATUR IS NOT WARRANTED .............. 21

IV. THERE IS NO BASIS FOR DISCIPLINARY ACTION AGAINST RESPONDENT’S COUNSEL ..................................................... 23

CONCLUSION ..................................................... 32

(iii)

iv

CASES

TABLE OF AUTHORITIES

Page

In re Bernstein, 707 A.2d 371 (D.C. 1998) .... 31 Berrigan v. Sigler, 499 F.2d 514 (D.C. Cir.
1974) ........................................................... 22 Ciarpaglini v. Norwood, 817 F.3d 541 (7th
Cir. 2016) .................................................... 19 Cty. of Riverside v. McLaughlin, 500 U.S. 44
(1991) .......................................................... 19 In re Davis, 289 U.S. 704 (1933) ................... 23 In re Disbarment of Moore, 529 U.S. 1127
(2000) .......................................................... 23 Doe v. Bolton, 410 U.S. 179 (1973) ............... 19 Doe v. Charleston Area Med. Ctr., Inc., 529
F.2d 638 (4th Cir. 1975) ............................. 19 Gerstein v. Pugh, 420 U.S. 103 (1975) .......... 19 In re Gilbert, 276 U.S. 294 (1928) ................. 23 In re Gonzalez, 773 A.2d 1026 (D.C. 2001)... 31 In re Hall, 56 S. Ct. 86 (1935) ....................... 23 In re Hall, 57 S. Ct. 107 (1936) ..................... 23 Harris v. McRae, 448 U.S. 297 (1980) .......... 15 Mahoney v. Babbitt, 113 F.3d 219 (D.C. Cir.
1997) ........................................................... 22 In re Moore, 177 F. Supp. 2d 197 (S.D.N.Y.
2001) ........................................................... 23 Mount Soledad Mem’l Ass’n v. Trunk, 567
U.S. 944 (2012) ........................................... 22 Nken v. Holder, 556 U.S. 418 (2009) ............ 15 Olson v. Brown, 594 F.3d 577 (7th Cir. 2010)... 20 Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833 (1992) ........................................... 16 Roe v. Wade, 410 U.S. 113 (1973) ................ 18, 19 In re Shipley, 135 S. Ct. 1589 (2015) ............ 24 In re Sibley, 63 S. Ct. 438 (1943) .................. 24 Sosna v. Iowa, 419 U.S. 393 (1975) .............. 19 Swisher v. Brady, 438 U.S. 204 (1978)......... 19

v
TABLE OF AUTHORITIES—continued Page
Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65 (D.D.C. 2013) ......................................... 20
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) .......................... 13
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) .................................................. 19, 20
United States v. Munsingwear, 340 U.S. 36 (1950) .......................................................... 22
Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ......................................................... 15, 21
Va. Military Inst. v. United States, 508 U.S. 946 (1993) ................................................... 17
Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) ........................................... 16
STATUTES AND REGULATION
8 U.S.C. § 1232(b)(1) ..................................... 5 Tex. Fam. Code Ann. § 33.003(i)(1)–(2) ........ 6 28 C.F.R. § 551.23(c) ..................................... 16
RULES
Sup. Ct. R. 10................................................ 14, 15 Sup. Ct. R. 23................................................. 9
OTHER AUTHORITIES
ABA, Model Rules of Professional Conduct (2016) ......................................................... 30, 31
ICE, Detention Standard 4.4, Medical Care (Women) (revised Dec. 2016), https://www. ice.gov/doclib/detention-standards/2011/44.pdf ............................................................ 16

vi
TABLE OF AUTHORITIES—continued Page
David Luban, DOJ’s Stance on Illegal Immigrant Abortion Case is Clear Jab at ACLU, The Hill (Nov. 9, 2017), http://the hill.com/opinion/healthcare/359617-dojsstance-on-illegal-immigrant-abortioncase-is-clear-jab-at-aclu ............................. 31
Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ............................. 13
18B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure (2d ed. 2002) ..................................................... 21

INTRODUCTION
Jane Doe is a 17-year-old who came to this country without her parents.1 She was apprehended by the U.S. government and has been detained since September 2017 in a shelter run by a federal government grantee. After receiving a medical examination and being informed she was pregnant, Ms. Doe told shelter staff that she wanted an abortion. With the help of two court-appointed representatives, she received permission from a Texas state court to bypass the State’s parental consent law and to consent to the abortion herself. She then sought to attend state-mandated pre-abortion counseling at a local clinic. Pursuant to a policy adopted in March 2017 by the Director of the Office of Refugee Resettlement (ORR) at the U.S. Department of Health and Human Services (HHS)—and in stark contrast to the policies of U.S. Immigration and Customs Enforcement (ICE) and the Bureau of Prisons (BOP)—the government refused to allow Ms. Doe to attend any abortionrelated appointments.
Ms. Doe brought suit in federal district court seeking to enforce her right to an abortion, consistent with the Constitution and the state court’s order. The government did not contest Ms. Doe’s claim that she has a constitutional right to an abortion. Nor did it argue that allowing her to attend the appointments would violate statutory restrictions on the use of federal funds or any federal regulations. Instead, it argued that it should not have to “facilitate” her access to an abortion—even if it did not pay for, or transport Ms. Doe to, any appointments. Because she was in federal custody, this policy prevented Ms. Doe from
1 Respondent Garza is Ms. Doe’s guardian ad litem.

2
exercising what the government did not contest is her constitutional right.
On October 18, 2017, the district court issued a temporary restraining order (TRO) that, among other things, directed the defendants to allow Ms. Doe to attend the necessary appointments. The same day, the government sought an emergency stay pending appeal, which a panel of the D.C. Circuit granted in part on October 20. On October 24, however, the D.C. Circuit en banc granted rehearing and denied the government’s emergency request for a stay. This time, the government did not seek an immediate stay, even though nothing precluded it from doing so. On the next day, October 25, one month after the state court authorized Ms. Doe to obtain an abortion, she finally had the procedure.
Having failed to seek an emergency stay from this Court on October 24, as it had from the D.C. Circuit on the day the district court granted the TRO, the government filed this petition nine days after the events that it claims have rendered the issues in this case moot. The government does not seek review of the single legal issue decided by the court of appeals— whether the government’s application for a stay pending appeal met the standards for obtaining such relief. Rather, it asks this Court to vacate that emergency, interlocutory ruling on the ground that some of Ms. Doe’s claims for relief have been mooted by her abortion. The government then suggests that this Court should decide, in the first instance, that claims Ms. Doe seeks to bring on behalf of herself and a class are likewise moot and dismiss those claims now while they remain pending in district court. Simultaneously, the government suggests that this Court should consider issuing an order to show cause

3
why disciplinary action should not be taken against respondent’s counsel “in light of the extraordinary circumstances of this case.” Pet. 26.
But it is the government’s petition that is extraordinary: The government asks this Court to grant certiorari without identifying any question worthy of review; it seeks vacatur under circumstances that the government has repeatedly argued do not warrant this Court’s intervention; it asks this Court to direct dismissal of an array of claims not implicated by the decision below before any lower court has passed on them; and it suggests that this Court consider disciplinary action against lawyers for faithfully fulfilling their ethical duties to their client.
The petition should be denied for at least three reasons. First, as the government acknowledges, even where a case has become moot, the Court should not grant review for purposes of vacating a lower court’s decision unless the petition independently presents an issue that would have been worthy of review prior to becoming moot. Yet the government identifies no such issue. The only question decided below was whether the government had met the requirements for a stay of a TRO pending appeal. That narrow, fact-bound issue, as to which the court of appeals applied the legal standard urged by both sides, is not remotely worthy of this Court’s review. No other issues are presented because the court below did not decide any.
Second, even if the decision below presented an issue worthy of this Court’s review, the relief the government seeks would not be warranted. The government’s argument that this Court should vacate the decision below and direct the dismissal of all claims for prospective relief regarding pregnant

4
unaccompanied minors on the grounds that they are moot is erroneous. The claims in this case regarding the treatment of pregnant minors are currently being litigated in the district court, and finding that they are moot would contravene this Court’s decisions recognizing exceptions to mootness in cases like this one where the factual basis for the claim is of a fleeting nature.
Third, vacatur is intended to protect parties who are prevented from appealing and who would be harmed by the binding effects of the mooted ruling on future litigation. In this case, however, and consistent with established law, the D.C. Circuit’s interlocutory decision denying a stay has no preclusive effect on future litigation. Moreover, the government failed to take the steps necessary to preserve its appellate rights, and in all events retains a full opportunity to seek review of the future litigation following final judgment on those claims.
Finally, the government’s suggestion that this Court should consider issuing an order to show cause why respondent’s counsel should not be disciplined provides no basis to find that counsel’s conduct presents grounds for concern, much less sanction. The petition does not present legal or factual grounds for its suggestion that respondent’s counsel may have violated any applicable rule of professional conduct. To the contrary, the government’s recitation of events shows that it failed to seek a stay from this Court in a timely manner based on assumptions it made about the timing of Ms. Doe’s procedure, not on the basis of any commitments from Ms. Doe’s lawyers.

5
COUNTERSTATEMENT OF THE CASE
A. Facts
In early September 2017, Jane Doe, a young woman of 17, entered the United States without her parents. She was apprehended by U.S. authorities and placed in HHS custody in a shelter run by a federal government grantee in Texas. Through ORR, HHS exercises its responsibility for the “care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1). A nationwide consent decree requires ORR and its shelters to provide “appropriate routine medical . . . care, family planning services, and emergency health care services.” Stipulated Settlement Agreement, Ex. 1 at 1, Flores v. Reno, No. CV-85-4544 (C.D. Cal. Jan. 17, 1997).
On March 4, 2017, the Acting Director of ORR issued a letter informing grantees of its policy of “prohibit[ing] [shelters] from taking any action that facilitates an abortion without direction and approval from the Director of ORR,” D.D.C. Dkt. No. 3-5, a policy that effectively gives the ORR Director veto power over a young woman’s abortion decision.
Once in HHS custody, Ms. Doe was given a medical examination and told that she was pregnant. 10/17/2017 White Decl. ¶ 7. She informed her custodians that she wished to terminate the pregnancy. Id. ¶ 8. ORR directed the shelter to inform Ms. Doe’s mother of her pregnancy over Ms. Doe’s objection. Appellee’s Opp. to Mot. for Stay Pending Appeal 7 (Oct. 19, 2017). The government also required Ms. Doe to attend a counseling session at an anti-abortion center. 10/13/2017 Amiri Decl. ¶ 2; 10/11/2017 Doe Decl. ¶ 13.

6
To obtain an abortion under Texas law, a minor must obtain parental consent or a court order finding that she “is mature and sufficiently well informed to make the decision” on her own, or that “the notification and attempt to obtain consent would not be in the best interest of the minor.” Tex. Fam. Code Ann. § 33.003(i)(1)–(2). A state court appointed a guardian ad litem and an attorney ad litem for Ms. Doe and, with their assistance, she received a court order on September 25 granting her authority to consent to an abortion without the knowledge or consent of her parents or legal guardian. Pet. App. 69a.
Under Texas law, Ms. Doe first had to attend counseling at least 24 hours in advance of the abortion with the physician who would perform the procedure. Pet. App. 70a. When Ms. Doe requested permission to attend that counseling on September 27, ORR refused. 10/17/2017 White Decl. ¶ 10.2
ORR took this position notwithstanding contrary ICE and BOP policies that allow detained women to obtain abortions, and despite the government’s position in this case that Ms. Doe would have been free to have an abortion if ORR placed her with a sponsor, see Appellants’ Emergency Mot. for Stay Pending Appeal 11 (Oct. 18, 2017).
B. Procedural History
On October 13, 2017, Ms. Doe’s guardian ad litem filed suit in the U.S. District Court for the District of Columbia against the Acting Secretary of HHS and
2 In response, Ms. Doe filed a lawsuit in Texas state court on October 5, alleging state-law neglect by the shelter. That case is sealed and has been removed to federal court. Appellee’s Opp. to Mot. for Stay Pending Appeal 10 n.6 (Oct. 19, 2017).

7
other department officials on behalf of Ms. Doe and a putative class of “all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit,” Compl. ¶ 47. The complaint alleges, among other things, that the defendants violated the Constitution by “obstructing, interfering with, or blocking [the minors’] access to abortion” and by revealing “information about [the minors’] pregnancy and abortions to their parents or other family members, including immigration sponsors.” Id. ¶¶ 55–56. Respondent simultaneously sought a TRO to prevent the government “from obstructing [Ms. Doe’s] access to abortion.” Id. at 15. On October 18, respondent moved for class certification.
The district court granted a TRO later on October 18, requiring defendants either to transport Ms. Doe or to allow her to be transported “to the abortion provider closest to [the] shelter in order to obtain the counseling required by state law on October 19, 2017, and to obtain the abortion procedure on October 20, 2017 and/or October 21, 2017, as dictated by the abortion providers’ availability and any medical requirements.” Pet App. 73a. It also temporarily restrained the defendants from “further forcing [Ms. Doe] to reveal her abortion decision to anyone, or revealing it to anyone themselves” or from retaliating against her or the shelter. Id. at 74a. Within five hours that same day, the government not only filed a notice of appeal in the D.C. Circuit, but also an emergency motion for a stay pending appeal, and a request for a temporary administrative stay while the court considered the stay pending appeal. Pet. 8.
On October 19, a panel of the D.C. Circuit administratively stayed the TRO to the extent it

8
pertained to Ms. Doe’s transportation to obtain an abortion on October 20 or 21. Order (Oct. 19, 2017). The court did not stay other parts of the TRO, including the portion relating to the counseling appointment on October 19. Id. Ms. Doe received statemandated counseling on October 19. Pet. 11.
Following oral argument, the panel issued a per curiam decision on October 20 in which it vacated the portion of the TRO that required the defendants to transport Ms. Doe to either counseling or an abortion. The panel noted that the government “has assumed, for purposes of this case, that [Ms. Doe] . . . possesses a constitutional right to obtain an abortion in the United States.” Pet. App. 2a–3a. The panel found that releasing Ms. Doe to a sponsor, which the government stated it was attempting to do, “does not unduly burden the minor’s right under Supreme Court precedent to an abortion . . . . so long as the process of securing a sponsor to whom the minor is released occurs expeditiously.” Id. at 2a (emphasis added). The court therefore remanded to the district court with instructions to allow HHS eleven more days—until 5:00 p.m. on October 31—to secure a sponsor and release Ms. Doe. If no sponsor was approved in that time, the order provided that Ms. Doe could seek a new TRO “or other appropriate order,” which the government “may . . . immediately appeal.” Id.
Judge Millett dissented. She pointed out that there was no “factual basis to think that remand will accomplish anything but a forced continuation” of Ms. Doe’s pregnancy, given the government’s failure to identify a sponsor after six weeks. Pet App. 13a. Judge Millett observed, moreover, that the vetting process for sponsors was “understandably rigorous” and controlled by HHS. Id. On the other side of the

9
balance, Judge Millett wrote, “[e]very day that goes by is another day that the federal government forces [Ms. Doe] to carry an unwanted pregnancy forward. Days also increase the health risks associated with an abortion procedure . . . . [I]f [she] is 17 or 18 weeks along by the time this issue is resolved, the doctors at the South Texas clinic nearest to her (assuming it still has availability) will likely no longer be willing to perform the procedure.” Id. at 14a.
On Sunday, October 22, Ms. Doe’s guardian ad litem filed an emergency petition for rehearing en banc in the D.C. Circuit. Shortly before 2 p.m. Central Time3 on October 24, the D.C. Circuit en banc granted the petition for rehearing and denied the government’s motion for a stay pending appeal. The court concluded that the government had “not met the stringent requirements for a stay pending appeal, substantially for the reasons” set forth in Judge Millett’s dissent from the panel decision. Pet. App. 19a (citation omitted). At this point in time, the government could have immediately sought a stay from this Court,4 just as it had immediately sought a stay from the court of appeals when the district court entered the TRO. But it chose not to.
Following the D.C. Circuit’s decision, Ms. Doe’s guardian ad litem filed an emergency motion to amend the TRO in the district court. Pet. 10. The district court granted the motion shortly after 4 p.m. on October 24 and issued an amended TRO that required the defendants to transport Ms. Doe, or allow her to be transported, “promptly and without delay, on such
3 All times listed in this brief reflect Central Time.
4 See Sup. Ct. R. 23.

10
dates, including today, and to such Texas abortion provider as shall be specified by [Ms. Doe’s] guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure, in accordance with the abortion providers’ availability and any medical requirements.” Pet. App. 66a. Again, the government could have sought a stay from this Court at this point, but did not.
C. Post-TRO Events
Upon receiving the amended TRO at about 4:15 p.m., Ms. Doe’s guardian ad litem emailed shelter and Department of Justice (DOJ) personnel requesting that they transport Ms. Doe to the clinic. Pet’rs’ Ex. B.5 Despite the court order, the shelter responded that it would have to wait for ORR instructions. Pet’rs’ Ex. M at 7. In response, Ms. Doe’s attorney attached the court’s order and advised the shelter that she would initiate contempt proceedings if the government defied the order. Pet’rs’ Ex. C.
Soon thereafter, a DOJ attorney called Ms. Doe’s attorney to inform her that the shelter was transporting Ms. Doe. The DOJ attorney explained that the shelter needed advance notice “of the timing of any appointments,” Pet. 13. At 5:26 p.m., government counsel emailed Ms. Doe’s attorney to thank her for speaking earlier and “to confirm [the attorney’s] understanding that the shelter had
5 The government proposes to lodge with the Court under seal exhibits of non-record material. Respondent’s counsel has informed the Court that it has agreed with the government that it may utilize these exhibits in this brief, and seek to lodge its own, while protecting sensitive information and individuals’ confidentiality. Respondent will seek to make these materials public with appropriate redactions.

11
arranged for transport services this evening per your email.” Pet’rs’ Ex. F. Government counsel continued: “I would appreciate it if you could let me and [the Assistant U.S. Attorney (AUSA) in Texas] know when the timing for tomorrow’s procedure is clarified.” Id. Ms. Doe’s attorney replied minutes later stating that she appreciated the call, and that “[a]s soon as we understand the clinic’s schedule tomorrow we will let you know.” Pet. 13.
Shortly after 6:00 p.m., shelter personnel emailed HHS and DOJ personnel that Ms. Doe’s attorney ad litem had informed them that “‘the window for appointment this evening was missed,’” and Ms. Doe should return to the shelter. Pet’rs’ Ex. E.
At 6:17 p.m., Ms. Doe’s attorney emailed DOJ attorneys to say that the doctor was unable to stay that evening, and that “[t]he ad litems will arrange with the shelter to have [Ms. Doe] arrive at the clinic at 7:30 a.m.” the next morning. Pet’rs’ Ex. F. A few minutes later, Ms. Doe’s guardian informed shelter and DOJ personnel that Ms. Doe “has an appointment tomorrow morning at 7:30 a.m.” at the clinic and “must be there on time.” Pet’rs’ Ex. G. The shelter confirmed that it would make “necessary arrangements to ensure minor is present.” Pet’rs’ Ex. H.
At 8:13 p.m., another DOJ attorney emailed Ms. Doe’s attorneys to say that DOJ intended to seek a stay from the Supreme Court the next morning. Resp’ts’ Ex. 1. One of Ms. Doe’s attorneys emailed back to thank the attorney for letting him know. Id.
At 9:31 p.m., Ms. Doe’s guardian ad litem informed shelter and DOJ personnel that Ms. Doe’s “appointment has been moved to 4:15 a.m. at the address provided.” Pet’rs’ Ex. K. The shelter again

12
confirmed receipt and indicated it had made transportation arrangements. Pet’rs’ Ex. L. Shelter personnel forwarded the email to HHS personnel at 11:56 p.m. to inform them that it had “not received confirmation of what service will take place tomorrow, we were under the impression [Ms. Doe] was going in for mandated counseling, however, provided newly requested time was issued at the request of health center and attending physician, it is unclear whether [Ms. Doe] will partake in mandated counseling or undergo medical procedure.” Pet’rs’ Ex. M at 3.
At 4:30 a.m. on Wednesday, October 25, shelter personnel emailed HHS personnel stating that the “health center charge nurse has confirmed that minor is scheduled to undergo medical procedure this morning.” Id. at 1 (emphasis added).
After 8 a.m. that morning, Ms. Doe’s abortion was performed by the doctor who had originally counseled her on October 19. In response to DOJ inquiries, Ms. Doe’s attorney confirmed this fact in an email at 9:00 a.m. Pet. 15.
Although the petition states that at the time Ms. Doe had her abortion the government “believed that it had identified a potentially suitable sponsor,” and “believed that the process could be completed within a week,” id. at 6, it is now more than a month later, and the government still has not approved a sponsor; Ms. Doe remains in ORR custody. Had it not been for court intervention, Ms. Doe would still be pregnant, against her will, today.

13
REASONS FOR DENYING THE PETITION
I. THE DECISION BELOW DOES NOT PRESENT A LEGAL ISSUE WORTHY OF THIS COURT’S REVIEW.
Having failed to seek a timely stay, the government now asks the Court to grant review of an interlocutory order that it contends is moot. By the government’s own reasoning, the underlying decision presents no merits issues on which the Court could rule, even if it were so inclined. Instead, the government asks the Court to grant review to vacate the D.C. Circuit’s decision, a form of relief this Court has described as an “extraordinary remedy,” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994).
To succeed in this unusual plea, the government must—consistent with its own longstanding view— demonstrate that the case would have independently warranted this Court’s review had it not become (in the government’s view) moot. See Pet. 23 n.4. It “has been the consistent position of the United States” that “the Court should deny review of cases (or claims) that have become moot after the court of appeals entered its judgment but before this Court has acted on the petition, when such cases (or claims) do not present any question that would independently be worthy of this Court’s review.” U.S. Amicus Br. at 10, McFarling v. Monsanto Co., 545 U.S. 1139 (2005) (No. 04-31) (cert. denied); see U.S. Br. in Opp. at 5–8, Velsicol Chem. Corp. v. United States, 435 U.S. 942 (1978) (No. 77-900) (cert. denied); Stephen M. Shapiro et al., Supreme Court Practice § 19.4, at 968 n.33 (10th ed. 2013) (noting that the Court appears to follow the government’s approach). This rule recognizes that this Court’s review is “discretionary and exercised

14
circumspectly,” and that “there is no unfairness in leaving the lower court’s decision intact” where “the Court would have denied certiorari in any event.” U.S. Br. in Opp. at 12–13, Enron Power Mktg., Inc. v. N. States Power Co., 528 U.S. 1182 (2000) (No. 99-916) (cert. denied); id. at 11 (agreeing that the decision below was incorrect but urging denial in light of the government’s longstanding position).
The government plainly cannot meet its own test. In fact, the petition barely presents any affirmative legal argument that the D.C. Circuit’s decision would have warranted this Court’s review if the government had sought review on the merits. It does not directly claim—because it cannot—that the court of appeals’ decision denying a stay conflicts with any other circuit’s decision, or with a prior decision of this Court. See Sup. Ct. R. 10. Instead, the petition contains a single sentence that merely notes that prior decisions of this Court support the view that “the government generally need not facilitate abortions.” Pet. 22 (emphasis added).
The lower court did not, however, resolve the merits of Ms. Doe’s constitutional claim or the government’s argument that its refusal to “facilitate” Ms. Doe’s abortion did not impose an unconstitutional “undue burden” on Ms. Doe.6 The only matter decided below— and therefore the only question the government’s petition could have presented—was whether the government’s emergency motion for a stay of the TRO pending appeal should be denied because the
6 Because the government did not dispute below that Ms. Doe has a constitutional right to an abortion, it does not and could not appropriately raise that issue here.

15
government had “not met the stringent requirements” for such relief. Pet. App. 19a.
That narrow question is manifestly unworthy of this Court’s review. Indeed, the government does not claim otherwise. Nor does it raise that legal issue for this Court’s consideration. See Pet. I. And for good reason. The test for a stay pending appeal is highly fact-bound and inherently individualized. See Nken v. Holder, 556 U.S. 418, 426 (2009) (court weighs multiple factors: applicant’s likelihood of success on the merits, whether applicant will suffer irreparable injury, balance of hardships, and public interest).7 The petition does not argue that the court of appeals applied the incorrect legal test. And review of the court of appeals’ application of Nken to the facts here is plainly not the stuff of certiorari. See Sup. Ct. R. 10; c.f., U.S. Br. in Opp. at 8, Walmer v. Dep’t of Def., 516 U.S. 974 (1995) (No. 95-230) (cert. denied) (urging denial of review of preliminary injunction ruling where the only question properly presented is the application of the established standard to “case-specific” facts).
Even if the court of appeals had ruled on the constitutionality of the government’s actions—and in merely denying a stay pending appeal it manifestly did not—such a decision would not conflict with any of the cases the government cites. In those cases, the Court found that the government’s actions were constitutional because they “place[d] no obstacles— absolute or otherwise—in the pregnant woman’s path to an abortion.” Harris v. McRae, 448 U.S. 297, 314 (1980) (quoting Maher v. Roe, 432 U.S. 464, 474
7 In addition to being only one of several factors, likelihood of success on the merits is not a determination on the merits. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 394 (1981).

16
(1977)); Webster v. Reproductive Health Servs., 492 U.S. 490, 509 (1989); see generally Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992) (undue burden standard). Because Ms. Doe was (and still is) in U.S. custody, the government’s refusal to permit her to attend her appointments places her in a wholly different position.
The petition does not, moreover, explain why the government has an interest in restricting access to abortions by minors in its custody, but not adults in its custody. The government does not dispute that it transports women and “arrange[s]” for abortions when they are in ICE or BOP custody.8 Yet, in apparent conflict with these policies, the government states that any steps to provide access to an abortion give rise to the interests it asserts, even if the government were to play no role in transporting or paying for an abortion. See Appellants’ Resp. to Pet. for Reh’g En Banc 11–12 (Oct. 23, 2017).9 Indeed, in its efforts to defeat class certification, the government now represents in the ongoing district court proceedings that HHS does not have a “policy” prohibiting minors from attending abortion-related appointments and questions whether there are any other cases in which the defendants
8 See ICE, Detention Standard 4.4, Medical Care (Women), at 325 (revised Dec. 2016), https://www.ice.gov/doclib/detentionstandards/2011/4-4.pdf (if an ICE detainee requests abortion, ICE “shall arrange for transportation at no cost” to the detainee); 28 C.F.R. § 551.23(c) (federal inmate may decide whether to have an abortion and, if she does, “the Clinical Director shall arrange for an abortion to take place”).
9 See also Pet. App. 29a (concurrence of Millett, J.) (government did not need to (1) pay for Ms. Doe’s abortion, (2) transport her; (3) complete any paperwork or administrative measures (since the contractor detaining Ms. Doe advised that it was willing to do so); or (4) complete its own “best interests” form).

17
“have refused to release a minor in ORR care to obtain an abortion.” Defs.’ Opp. to Mot. for Class Certification 25 (Nov. 20, 2017).
Finally, the emergency interlocutory posture of the decision below makes it an exceedingly poor vehicle for addressing any of these issues, even if they were otherwise properly presented. This Court’s review of interlocutory determinations is the exception rather than the rule. See Va. Military Inst. v. United States, 508 U.S. 946, 946 (1993) (Scalia, J., concurring in denial of writ of certiorari). Here, the government itself argued that en banc review was “premature” and “inappropriate at this interlocutory stage of the case” because of the lack of a well-developed factual record given the expedited proceedings. Appellants’ Resp. to Pet. for Reh’g En Banc 12–14 (Oct. 23, 2017) (focusing on claims about the sponsorship process and Ms. Doe’s immigration status); see also Pet. App. 63a n.6 (Kavanaugh, J., dissenting) (factual record in this case is both “under-developed” and “still unclear and hotly contested”).
In short, the petition fails to show—or even to argue in full—that the decision below warrants this Court’s review.
II. MS. DOE’S CLAIMS REGARDING THE TREATMENT OF PREGNANT MINORS ARE NOT MOOT.
The only question the government presents for the Court’s review is whether it should vacate the D.C. Circuit’s decision and remand with instructions to dismiss “all claims for prospective relief regarding pregnant unaccompanied minors” on the ground that such claims were mooted by Ms. Doe’s abortion. Pet. I, 19 (emphasis added). The government fails, however,

18
to demonstrate that any of the claims for prospective relief in Ms. Doe’s complaint regarding the treatment of pregnant unaccompanied minors are moot. The relief it requests from this Court—vacatur of the denial of a stay pending appeal followed by dismissal of an array of claims that are still being litigated below—is therefore unwarranted.10
As an initial matter, Ms. Doe indisputably has live claims for injunctive relief to prevent the government from retaliating against her for her decision to have an abortion and to prevent it from disclosing information about her abortion decision to third parties. See Pet. App. 67a (amended TRO); Order (Oct. 30, 2017) (extending portions of the TRO); Compl. 16. The government appears to agree that these claims remain live. See Pet. 24 (discussing disclosure claim).11 Ms. Doe also seeks to bring these claims on behalf of the class. Compl. 16.
In addition, Ms. Doe’s claims regarding access to abortion—for which she also seeks injunctive relief, Compl. 15–16—fall into established exceptions to mootness. See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973) (“[p]regnancy provides a classic justification for a conclusion of nonmootness”). This is particularly the case here, where Ms. Doe brings these claims on behalf of both herself and a class of minors in HHS custody.
10 The government does not claim—indeed it could not—that vacatur is warranted because the case has become moot. Thus, even in its own view, the Court’s “general practice” under Munsingwear would not be appropriate here. Pet. 24. Instead, it requests that this Court decide in the first instance that certain of Ms. Doe’s claims are moot and direct their dismissal.
11 Indeed, the government has filed a still-pending motion seeking to modify the TRO to permit it to disclose Ms. Doe’s abortion. Defs.’ Mot. for Recons. of the Court’s October 30, 2017 Order Extending the Am. TRO (Nov. 6, 2017).

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Compl. ¶¶ 55–56. Indeed, courts have recognized in the class action context that claims based on temporary conditions may continue even if the putative named plaintiff’s claims become moot during the litigation. The government is therefore incorrect that “claims for injunctive relief” related to the putative class are moot. Pet. 25. This Court has repeatedly stated that a class action remains live in various circumstances where a motion for class certification was filed prior to the named plaintiff’s claim becoming moot. See, e.g., Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.”); U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 398–99 (1980) (“named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation” when claims are “capable of repetition, yet evading review,” or “inherently transitory”); Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975).
In this case, Ms. Doe moved for class certification on October 18, when she was indisputably a member of the putative class. And the primary claim on which Ms. Doe seeks to represent a class—the right to access abortion services while in U.S. custody—is the archetypal example of a claim that is both inherently transitory and “capable of repetition yet evading review.” See, e.g., Roe, 410 U.S. at 125; Doe v. Bolton, 410 U.S. 179, 187 (1973); Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644 (4th Cir. 1975); Ciarpaglini v. Norwood, 817 F.3d 541, 547 (7th Cir. 2016) (characterizing pregnancy as an “inherently transitory” situation). In fact, the Court has

20
specifically cited the abortion context as an example of the type of claim that is appropriate for class-action treatment even in circumstances where the named plaintiff’s claim has become moot. See Geraghty, 445 U.S. at 398, 416 n.9 (citing Roe). Here, Ms. Doe was not only pregnant but also in federal custody, “[t]he length of [which] . . . is impossible to predict.” Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013); see also Geraghty, 445 U.S. at 399.
The government argues that these exceptions to class action mootness cannot apply in this case because “[w]e simply do not know whether the district court could have ruled on Ms. Doe’s motion for class certification before her interest . . . otherwise would have expired.” Pet. 26. But this is not the test. Instead, courts look to the uncertainty surrounding the length of the condition as a general matter. See Geraghty, 445 U.S. at 399 (“It is by no means certain that any given individual, named as plaintiff, would be in [custody] long enough for a district judge to certify the class.” (emphasis added) (quoting Gerstein, 420 U.S. at 110, n.11)); Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010) (“it is uncertain that any potential named plaintiff in the class of inmates would have a live claim long enough for a district court to certify a class”).
The government’s request for this Court’s intervention should be rejected. Its argument that Ms. Doe’s claims for prospective relief regarding pregnant unaccompanied minors have been mooted is incorrect. The litigation continues below, and there is no justification for this Court to disrupt that process by prematurely dismissing Ms. Doe’s legal claims.12
12 The petition does not, moreover, cite cases where this Court has granted review in order to direct vacatur of an interlocutory ruling in such a posture.

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III. VACATUR IS NOT WARRANTED.
The government’s asserted rationale for vacatur is equally unpersuasive. The petition seeks to vacate the D.C. Circuit’s decision to ensure that the ruling does not “spawn[] any legal consequences.” Pet. 23 (quoting United States v. Munsingwear, 340 U.S. 36, 41 (1950)). Even if this rationale constituted sufficient grounds for the Court to grant discretionary review and vacate (and the government agrees it does not, see supra Section I), the supposed “legal consequences” are wholly illusory. No purpose would be served by the relief the government seeks. The D.C. Circuit’s interlocutory stay decision controls none of the issues being litigated. If and when the courts below reach the merits and resolve the outstanding issues, the government will have a full opportunity to seek further review.
The government points to Ms. Doe’s Bivens claims and her putative class action as matters that it fears will be “constrained” by the decision below. Pet. 23–24. That argument might carry force had the court of appeals actually resolved the merits of any issue presented in the complaint. But, as explained above, the only issue before the court of appeals, and all it decided, was whether the defendants were entitled to a stay pending appeal. Particularly given the summary nature of its order, this interlocutory ruling will not “constrain” a future court that is presented with the merits following full briefing. See 18B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478.5, at 797 (2d ed. 2002) (“law of the case is not established by . . . denial of a stay . . . pending appeal”). Even rulings on preliminary injunctive relief are not controlling with respect to subsequent final determinations on the merits. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–95

22
(1981); Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974). The government will be free to seek both appellate court review and this Court’s review when the case reaches final judgment on the merits—which is yet another reason for denying the petition. See Mount Soledad Mem’l Ass’n v. Trunk, 567 U.S. 944 (2012) (Alito, J., concurring in denial of certiorari).
At bottom, the government appears to be asking the Court for a do-over in light of its failure to seek immediate review of the court of appeals’ decision. But that is a problem of its own making, and it fails to identify any reason this Court’s resources should be expended reviewing the denial of an emergency stay pending appeal. Seeking an immediate stay from this Court when it was still timely to do so would have been completely consistent with the proceedings in this case.13 Like Munsingwear itself, this is a case “where the United States, having slept on its rights, now asks us to do what by orderly procedure it could have done for itself.” 340 U.S. at 41. This Court should therefore decline to vacate the decision below. See Mahoney v. Babbitt, 113 F.3d 219, 221–22 (D.C. Cir. 1997) (vacatur of preliminary injunction not appropriate where government failed to seek a Supreme Court stay before the mooting event occurred the day after the injunction).
13 For instance, when the district court issued the initial TRO on October 18 at 3:17 p.m., the government filed a notice of appeal, a motion for a stay pending appeal, and an administrative stay by 8:20 p.m. the same day. After the en banc court of appeals issued its October 24 order at 1:49 p.m., respondent’s counsel filed a motion for an amended TRO at 3:04 p.m.

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IV. THERE IS NO BASIS FOR DISCIPLINARY ACTION AGAINST RESPONDENT’S COUNSEL.
The government’s concluding suggestion that this Court “may wish to issue an order to show cause why disciplinary action should not be taken” against respondent’s counsel, Pet. 26, is both extraordinary and baseless. It finds no support in the facts or the law.
The government’s recitation of events shows that: (1) Ms. Doe’s counsel made a series of accurate statements concerning the availability of, and logistics surrounding, Ms. Doe’s ability to obtain an abortion; (2) some government personnel may have incorrectly assumed that Ms. Doe could not obtain an abortion before October 26, even though she was legally entitled to obtain an immediate abortion, and had received state-mandated counseling on October 19; (3) some government lawyers may have believed that Ms. Doe’s counsel would advise them if facts changed; and (4) Ms. Doe’s counsel did not take affirmative steps to notify the government that the doctor who provided the counseling on October 19 agreed to come back to the clinic. The government’s suggestion that this might amount to sanctionable misconduct is not supported by legal authorities regarding attorney conduct, is not remotely justified by the disciplinary cases it cites,14 and is contrary to counsel’s respective ethical duties.
14 E.g., In re Hall, 57 S. Ct. 107 (1936) (disbarment order related to In re Hall, 56 S. Ct. 86 (1935) (attorney special master abused appointment to coerce a litigant)); In re Davis, 289 U.S. 704 (1933) (reprimand for failure to respond to communications from the clerk regarding outstanding fees); In re Gilbert, 276 U.S. 294 (1928) (suspension for improperly retaining fees); In re Moore, 177 F. Supp. 2d 197, 1998–99 (S.D.N.Y. 2001) (explaining that In

24
In an effort to show otherwise, the government repeatedly claims that opposing counsel “represented” “that no abortion would take place until October 26,” Pet. 11; see also id. at 13, 14, 19. Yet no such representation appears in the emails or the declaration of the AUSA lodged with the Court by the Solicitor General that the government cites. Instead, the events recited in the petition indicate that Ms. Doe’s representatives stated at various times on October 24 that the physician who was available at the clinic on October 24 (who was not the physician who originally provided the state-mandated counseling) could provide a new counseling session, which would trigger a 24-hour waiting period. See 11/1/2017 AUSA Decl. ¶¶ 6–7. The government does not claim that any of these statements was false.
The government also points to statements that respondent’s counsel made to the district court on October 24. The petition states that respondent’s counsel represented to the court “that for Ms. Doe to obtain an abortion, she would need to complete a twostep, 24-hour process.” Pet. 12. But this misrepresents counsel’s filing. Counsel requested an amendment to the original TRO to make clear that its relief and the government’s obligation to transport or allow Ms. Doe to be transported should be effective that very day. In support of this change, counsel noted that “a qualified
re Disbarment of Moore, 529 U.S. 1127 (2000), involved a petition for certiorari that failed to address the merits and accused lower court of corruption)); see also In re Shipley, 135 S. Ct. 1589, 1589– 90 (2015) (discharging show cause order regarding Supreme Court Rule 14.3 requirement that petitions for writs of certiorari be stated “in plain terms,” and noting that attorneys “may not delegate that responsibility to the client”); In re Sibley, 63 S. Ct. 438 (1943) (discharging show cause order without identifying conduct at issue).

25
physician is available at the nearest clinic today, and will be available to perform the procedure tomorrow.” Pl.’s Emergency Mot. to Amend the TRO 2 (Oct. 24, 2017).15 The motion specifically noted that it sought to ensure that Ms. Doe could “obtain the abortion . . . without further delay and as may be required by Texas state law and the availability of physicians.” Id. at 1 (emphases added). The motion thereby made clear that the TRO should enable Ms. Doe to obtain an abortion at the earliest time and from any available physician.
As this motion underscores, Ms. Doe’s counsel did not represent that, in making arrangements for her to see the physician who was at the clinic on October 24, they were forswearing any effort to secure an appointment with any other doctor who might be able to provide the abortion. Indeed, the government knew—and by its own account acknowledged to Ms. Doe’s representative on October 24—that the original doctor could perform the procedure without the need to repeat counseling. See 11/1/2017 AUSA Decl. ¶ 7.16
15 This statement was not only true, it provided new information; as of oral argument on October 20, there were no doctors scheduled to be at the clinic the week of October 23 after October 24. D.C. Cir. Oral Arg. 1:13:43–1:14:51, https:// www.cadc.uscourts.gov/recordings/recordings.nsf/DocsBy Monday?OpenView&StartKey=201710&Count=37&scode=3.
16 The AUSA’s declaration states that, in response, the attorney ad litem stated she was referring to “a different doctor” who could perform the abortion on Thursday. 11/1/2017 AUSA Decl. ¶ 7. By the government’s own account, this statement was entirely accurate. The declaration indicates that the attorney ad litem was talking about the doctor who was at the clinic on October 24, and the fact that new arrangements were being contemplated so that that doctor could remain at the clinic longer to provide the procedure. See id. ¶ 6.

26
It also knew that Ms. Doe’s representatives were considering various logistical arrangements to ensure that a doctor would be available to provide her abortion. Id. ¶ 6. These facts show that the situation was fluid; Ms. Doe’s representatives were considering multiple alternatives; and they were seeking to obtain Ms. Doe’s long-delayed abortion as soon as possible. The government implies that it reasonably believed these alternatives did not include any effort to return the original doctor to the facility, and claims that Ms. Doe’s attorney ad litem had stated that this doctor “was not available,” Pet. 13. But this suggestion rests on yet another misleading paraphrase: According to the government’s own declaration, the attorney ad litem stated that the original doctor “was not available on October 24.” 11/1/2017 AUSA Decl. ¶ 6 (emphasis added). The government does not claim that the statement actually made was inaccurate, or that it was a representation that Ms. Doe’s counsel would make no effort to have that doctor return to the facility on October 25.
The government also points to a telephone call and exchanges of emails on October 24 in an effort to suggest that respondent’s counsel provided assurances that the government did not need to request a stay because the abortion would not occur until October 26. Specifically, the government makes much of an email exchange in which one of its lawyers said the attorney “would appreciate it if [Ms. Doe’s counsel] could let me and [the AUSA] know when the timing for tomorrow’s procedure is clarified,” Pet’rs’ Ex. F, and Ms. Doe’s counsel stated that “[a]s soon as we understand the clinic’s schedule tomorrow we will let you know,” Pet. 13.

27
The government takes this exchange entirely out of context. Less than an hour earlier, the shelter had refused to transport Ms. Doe to the clinic until it had ORR’s approval, and the government had been advised that opposing counsel would “initiate contempt proceedings” if Ms. Doe was not transported to the clinic promptly. Pet’rs’ Ex. C. The government attorney called respondent’s counsel shortly thereafter to explain that the shelter needed advance notice to arrange transportation, and to confirm that Ms. Doe was now being transported to the clinic. See Pet. 12– 13. The government attorney then sent the email that confirmed “[the attorney’s] understanding that the shelter had arranged for transport services this evening per your email,” and included the attorney’s request for information about the timing of “tomorrow’s procedure.” Pet’rs’ Ex. F.
In context, the email exchange merely documents the government’s compliance with its obligation under the TRO to provide transportation, its commitment to do so again the following day, and counsel’s agreement to let the government know when Ms. Doe needed to be at the clinic the next day to avoid any further problems with transportation.17 Critically, the government’s email does not mention any stay motion, let alone link the request to the timing of such a filing. Nor does the government claim that its attorney mentioned any stay application in the earlier call. It is now wishful thinking to argue that this exchange over
17 At the time of the government’s email, Ms. Doe was being transported for pre-abortion counseling. The request for information about the timing of the next day’s “procedure” is thus sensibly understood as no more than a request to be informed of Ms. Doe’s schedule the next day so that the necessary transportation could be arranged.

28
transportation logistics reflects a mutual understanding that the government need not seek a stay because opposing counsel “had represented to the government that . . . no abortion would occur until the morning of October 26,” Pet. 19.
The government’s claim is further belied by the email exchange the government points to from later in the evening of October 24. The government asserts that, “[b]ased on the representations of counsel that no abortion would occur until October 26,” it informed the Clerk’s Office and respondent’s counsel that it would seek a stay the morning of October 25. Pet. 14. But by the government’s own account, no communication about the timing of a motion for a stay occurred until 8:13 p.m. the night of October 24 and, even then, the email the government sent informing respondent’s counsel that it would seek a stay in the morning says nothing about any such representations. Resp’ts’ Ex. 1. Nor does it communicate the government’s “understanding” about the timing of the procedure or seek confirmation that respondent’s counsel shared that understanding, much less a commitment that her counsel would promptly advise the government of any changed circumstances. Id. The response from one of Ms. Doe’s lawyers likewise includes no such confirmation or commitment. Id. Indeed, one of her attorneys responded to the 8:13 p.m. email by expressing relief that he would not have to check his email for any stay motion filed later that night. That email indicates that Ms. Doe’s attorneys had expected the government to seek a stay that night—an expectation wholly inconsistent with the government’s suggestion that there was a mutual understanding that filing was unnecessary because Ms. Doe’s counsel

29
has represented that the abortion would not occur until October 26.
The Solicitor General argues that these statements and events of October 24 led some government personnel to assume that Ms. Doe would not be able to obtain an abortion prior to October 26. See Letter from Noel J. Francisco, Solicitor General, to David D. Cole, National Legal Director, ACLU 2 (Oct. 26, 2017) (stating that it relied on representations of counsel and others and “our resulting understanding that no abortion procedure could then take place” until October 26) (emphasis added)). But none of the statements the government cites was a representation, much less a commitment, “that no abortion would take place until October 26,” Pet. 11.
The petition describes a course of events where many different parties were communicating into the night as events unfolded rapidly. Particularly given this fluid situation, and the government’s knowledge that Ms. Doe had sought throughout the litigation to obtain an abortion as soon as possible, it is striking that government counsel, by the government’s own account, neither requested that Ms. Doe forbear from obtaining the procedure while the government sought a stay from this Court nor sought confirmation of government counsel’s “understanding” that no abortion would occur prior to October 26. Absent such a commitment or confirmation, it was incumbent upon government counsel immediately to seek a stay. The government cannot now blame opposing counsel for its own failure either to act with its customary alacrity or to take any protective steps.
In short, Ms. Doe’s counsel had made clear that they were attempting to help their client obtain the

30
abortion as soon as possible; the government knew Ms. Doe had already received counseling from the original doctor, so that if that doctor became available, the abortion could take place immediately; and according to the government’s own recitation of events, it did not link its request for information about the timing of Ms. Doe’s appointment on October 25 with any statement concerning the timing of a stay motion with this Court.
To suggest that respondent’s counsel had a duty to forbear from effectuating the TRO on October 25 under these facts would turn counsel’s ethical obligations on their head. The only reason Ms. Doe’s representatives needed to talk to government personnel at all was to tell them the timing of Ms. Doe’s appointment so that the government would not delay Ms. Doe’s transportation to the clinic. If government counsel wished to ensure that they would have an opportunity to seek a stay before the abortion procedure, they could and should have requested such an assurance from respondent’s counsel and, if they did not receive a sufficiently clear commitment, they could and should have immediately sought relief from this Court. They inexplicably failed to take these reasonable steps, and cannot now blame respondent’s counsel for the consequences of their own inaction.
In addition to failing to supply a factual basis for its extraordinary request, the government fails to supply a specific legal rationale or cite to any legal authority that supports its position. The petition vaguely refers to “what appear to be material misrepresentations and omissions” by respondent’s counsel, Pet. 26, a claim that, if true, would violate ethical rules. See ABA, Model Rules of Professional Conduct R. 3.3 (2016) (prohibiting knowingly false statement of fact to a tribunal); id. R. 4.1(a) (barring “a false statement of

31
material fact or law to a third person”); id. R. 4.1 cmt. 1 (misrepresentations). But the government identifies no misrepresentations and fails to explain how counsels’ statements and/or actions would have amounted to false statements. The petition says that respondent’s counsel “arguably” had an obligation to notify the government that Ms. Doe’s original physician had become available on the morning of October 25. Pet. 28. Yet the petition cites to no rule of ethics, case law, or other authority to support such an obligation. Indeed, no such obligation exists—and for sensible reasons. A lawyer “generally has no affirmative duty to inform an opposing party of relevant facts,” except “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” ABA, supra, R. 4.1 & cmt. 1; see id. cmt. 3. A lawyer has an “obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law,” id. pmbl., and violates that duty “when he or she . . . fails to take the necessary steps to preserve the client’s interests,” In re Bernstein, 707 A.2d 371, 376 (D.C. 1998), or to maintain client confidentiality, see In re Gonzalez, 773 A.2d 1026, 1030–31 (D.C. 2001).18 The events the government recites show that Ms. Doe’s counsel acted in their client’s best interests, which is precisely what counsel are supposed to do. The government’s extraordinary
18 Far from requiring Ms. Doe’s counsel to apprise the government of the details of Ms. Doe’s medical appointments, ethics rules would have precluded them from agreeing to do so if it would undermine her interests. See David Luban, DOJ’s Stance on Illegal Immigrant Abortion Case is Clear Jab at ACLU, The Hill (Nov. 9, 2017), http://thehill.com/opinion/healthcare/359617dojs-stance-on-illegal-immigrant-abortion-case-is-clear-jab-ataclu.

32 request that the Court consider disciplinary action should be rejected.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted,

BRIGITTE AMIRI JENNIFER DALVEN MEAGAN BURROWS AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004
DAVID COLE DANIEL MACH AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street N.W. Washington, D.C. 20005
MELISSA GOODMAN AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017

CARTER G. PHILLIPS* SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 (202) 736-8000 cphillips@sidley.com
ARTHUR B. SPITZER SCOTT MICHELMAN AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF THE DISTRICT OF COLUMBIA 915 15th Street N.W. Washington, D.C. 20005
MISHAN R. WROE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111

Counsel for Respondent Rochelle Garza, Guardian Ad Litem

December 4, 2017

* Counsel of Record

 
 No. 17-654
In the Supreme Court of the United States

ERIC D. HARGAN, ET AL., PETITIONERS
v.
ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ARKANSAS, LOUISIANA, MICHIGAN,
MISSOURI, NEBRASKA, OHIO, OKLAHOMA, SOUTH CAROLINA, WEST VIRGINIA, AND THE COMMONWEALTH OF
KENTUCKY, BY AND THROUGH GOVERNOR MATTHEW G. BEVIN, AS AMICI CURIAE IN SUPPORT OF
PETITIONERS

KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant
Attorney General OFFICE OF THE
ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

SCOTT A. KELLER Solicitor General
Counsel of Record KYLE D. HAWKINS Assistant Solicitor General DAVID J. HACKER Special Counsel
for Civil Litigation

TABLE OF CONTENTS
Page Interest of Amici Curiae....................................................... 1 Summary of Argument ......................................................... 3 Argument................................................................................ 4
I. Unlawfully-Present Aliens with Virtually No Connections to the United States Have No Constitutional Right To An Elective Abortion ..... 4 A. The Decisions Below Overrode This Court's Long-Settled "Substantial Connections" Test, Which Provides That the Degree of Connections to This Country Determines the Degree of Fifth Amendment Rights Accorded to Aliens. ........................................................ 4 1. The Constitutional Rights of Aliens are Determined by a Sliding Scale Based on the Degree of Connections the Alien Has to the Country................. 5 2. Unlawfully-Present Aliens With Virtually No Connections to the Country Lack the Panoply of Affirmatively Liberty Rights that Citizens and LawfullyPresent Aliens Possess, Although They Do Have Baseline Procedural Protections and the Right to be Free from Gross Physical Abuse. ...................... 7
(I)

II
B. The Operative Complaint Confirmed that the Alien At Issue Here Had No "Substantial Connections" to This Country, and Therefore Had No Right to an Elective Abortion. .................. 13
II. The Court of Appeals Did Not Even Cite This Court’s “Substantial Connections” Test, Which Is Well Accepted. ............................. 15
A. The Courts Below Had a Duty to Apply the Correct Law. ............................. 16
B. The "Substantial Connections" Test Is Widely Cited and Applied as Controlling. .................................................. 16
III. If Left In Place, the Decision Below Will Exacerbate Unlawful Immigration and Further Strain the States’ Limited Resources ............................................................... 21
Conclusion ............................................................................ 26

III
TABLE OF AUTHORITIES
Page(s)
Cases:
Arizona v. United States, 567 U.S. 387 (2012) .................................... 1, 21, 24
Atamirzayeva v. United States, 524 F.3d 1320 (Fed. Cir. 2008) ............................17
Bellotti v. Baird, 443 U.S. 622 (1979) ..............................................12
Castro v. Cabrera, 742 F. 3d 595 (5th Cir. 2014) (No. 1340017), 2013 WL 8635071) .......................... 8, 9, 15
Citizens United v. FEC, 558 U.S. 310 (2010) ..............................................10
Demore v. Kim, 538 U.S. 510 (2003) .................................... 9, 11, 15
Galvan v. Press, 347 U.S. 522 (1954) ..............................................10
Gonzales v. Carhart, 550 U.S. 124 (2007) ................................................1
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012)............................7, 17
Johnson v. Eisentrager, 339 U.S. 763 (1950) ...................................... 6, 8, 15
Kleindienst v. Mandel, 408 U.S. 753 (1972) ..............................................10

IV
Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004)................................13
Landon v. Plasencia, 459 U.S. 21 (1982)..............................................6, 8
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987)................................8
Massachusetts v. United States, 333 U.S. 611 (1948) ..............................................16
Mathews v. Diaz, 426 U.S. 67 (1976)............................................9, 13
Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) ..........................4
McDonald v. City of Chicago, 561 U.S. 742 (2010) ..............................................10
Meachum v. Fano, 427 U.S. 215 (1976) ..........................................4, 15
Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) ..............................17
Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52 (1976)................................................12
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ..............................................12
Plyler v. Doe, 457 U.S. 202 (1982) ..........................................5, 13
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ........................12

V
Sibron v. New York, 392 U.S. 40 (1968)................................................16
Texas v. United States, 106 F.3d 661 (5th Cir. 1997)................................22
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam)................................21–22
Torres v. Puerto Rico, 442 U.S. 465, 471 n.3 (1979)................................16
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam) ......................6
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) ..............................................16
United States v. Carpio–Leon, 701 F.3d 974 (4th Cir. 2012)................................10
United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (per curiam) .................................................................10
United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012)............................17
United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (No. 14-3271), 2015 WL 2064443) ..................... 7, 10, 17

VI
United States v. Munsingwear, 340 U.S. 36 (1950)..........................................15, 21
United States v. Portillo–Munoz, 643 F.3d 437 (5th Cir. 2011)..........................10, 17
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .................. 2, 5, 6, 8, 10, 13, 14
United States v. Vilches-Navarrete, 523 F.3d 1 (1st Cir. 2008) ................................ 9, 17
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)..........................................12
Winter v. NRDC, 555 U.S. 7 (2008)....................................................4
Zadvydas v. Davis, 533 U.S. 678 (2001) ........................................ 5, 7, 9
Other Authorities
Appellees’ Brief, Castro v. Cabrera, 742 F. 3d 595 (5th Cir. 2014) (No. 1340017), 2013 WL 8635071) ..................................20
Brief and Short Appendix of PlaintiffAppellee, United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (No. 14-3271), 2015 WL 2064443) ...............................20
Brief for Appellee, United States v. Kole, 164 F.3d 164 (3d Cir. 1998) (No. 965457), 1996 WL 33453512 at *24 ........................18

VII
Brief for Appellee United States, United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (No. 13-50129), 2013 WL 6221846 at *13-15 ...................................................................19
Brief for Cross-Appellees and Reply Brief for Appellants, Gutierrez v. Ashcroft, 125 F. App’x. 406 (3d Cir. 2005) (Nos. 03-4798, 04-1031), 2004 WL 4184747, at *16 ....................................................19
Brief for Defendant-Appellee Robert S. Mueller, Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008) (No. 064216), 2007 WL 7285642 at * 32-33 ....................19
Brief for Plaintiff/Appellee, United States v. Rangel-Hernandez, 597 F. App’x 553 (10th Cir. 2015) (No. 14-7056), 2015 WL 222869 ..........................20
Brief for the United States, United States v. Portillo–Munoz, 643 F.3d 437 (5th Cir. 2011)................................20
Brief for the United States as Appellee, United States v. Torres, No. 15-10492 (9th Cir. July 15, 2016), 2016 WL 3878372 .....................................20
Brief for Respondent, Wigglesworth v. I.N.S., 319 F.3d 951 (7th Cir. 2003) (No. 021209), 2002 WL 32170294 ...................................18

VIII
Brief for the Respondents in Opposition, Castro v. Dep’t of Homeland Sec., 137 S. Ct. 1581 (2017) (No. 16-812), 2017 WL 1046315, at *17 ....................................17
Brief for the United States, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118), 2017 WL 104588 at *35 .......................................17
Congressional Budget Office, The Impact of Unauthorized Immigrants On The Budgets Of State And Local Governments (Dec. 2007), at 8, https://www.cbo.gov/publication/4164 5 ............................................................................23
Federal Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for TRO at 13, Pineda-Cruz v. Thompson, No. 5:15-cv-00326 (W.D. Tex. May 7, 2015) ......................................................... 10–11, 19
Plantiff’s Memorandum in Support of Her Application for Temporary Restraining Order and Motion for Preliminary Injunction, Garza v. Hargan, No. 1:17-cv-02122 (D.D.C. Oct. 14, 2017) .....................................................................12

IX
Plaintiff’s Reply in Support of Motion for Preliminary Injunction at 53, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-00254) ..............................................23
Reply Brief for Appellant United States at 9, United States v. Ospina, 317 F. App’x 684 (9th Cir. 2009), 2008 WL 6822006.................................................21
Reply in Support of Appellants’ Brief, Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), 2017 WL 1055525 .........................................................18
Texas Health and Human Services Commission, Report on Texas Health and Human Services Commission Services and Benefits Provided to Undocumented Immigrants (Dec. 2014), https://hhs.texas.gov/reports/2015/02 /report-health-and-human-servicescommission-services-and-benefitsprovided-undocumented-immigrants ............ 22, 23
Transcript of Oral Argument at 17, Jennings v. Rodriguez, No. 15-1204 (U.S. October 3, 2017) .....................18

X
U.S. Government Accountability Office, Unaccompanied Children: HHS Can Take Further Actions to Monitor Their Care, GAO-16-180 (Feb. 2016), at 4, https://www.gao.gov/products/GAO16-180 .............................................................23, 24

INTEREST OF AMICI CURIAE
Amici curiae are the States of Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia, and the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.1 The States have an interest in cooperating with the federal government to establish a consistent and correct understanding of the rights of aliens unlawfully present in the United States, as the States “bear[] many of the consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397 (2012). The States also have “a legitimate and substantial interest in preserving and promoting fetal life,” as well as an “interest in promoting respect for human life at all stages in the pregnancy.” Gonzales v. Carhart, 550 U.S. 124, 145, 163 (2007).
In this case, the district court entered—and the en banc court of appeals sustained—a temporary restraining order effectively declaring that the U.S. Constitution confers on unlawfully-present aliens the right to an elective abortion that is not medically necessary—even when they have no ties to this country other than the fact of their arrest while attempting to cross the border unlawfully. As far as amici can ascertain, no court has ever before recognized such
1 Pursuant to Supreme Court Rule 37.2, amici state that no counsel for any party authored this brief in whole or in part, and no person or entity other than amici contributed monetarily to the preparation or submission of this brief. The parties’ consents to the filing of this brief have been filed with the Clerk.
(1)

2
broad rights for unlawfully-present aliens with virtually no connections to the country. Under the reasoning of the courts below, there will be no meaningful limit on the constitutional rights an unlawfully-present alien can invoke simply by attempting to enter this country. This relief also contradicts the Court’s longstanding precedent that full Fifth Amendment rights accorded to citizens can only be extended to those aliens who “have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (emphasis added).
Amici thus urge the Court to vacate the court of appeals’ judgment.

3
SUMMARY OF ARGUMENT
The decisions below are unprecedented. Until now, no court had ever declared that the Constitution gives unlawfully-present aliens with virtually no ties to this country the full scope of affirmative liberty rights accorded to citizens. The district court and the en banc court of appeals thus broke new ground by holding that an unlawfully-present alien with virtually no ties to this country has a constitutional right to an elective abortion.
This Court should vacate the court of appeals’ order because the Constitution does not confer the right to an elective abortion on unlawfully-present aliens with virtually no ties to the country, as Judge Henderson’s dissent below rightly concluded. Under long-settled doctrine, the constitutional rights an alien may invoke depend on the scope of the alien’s ties to this country. It is true that all persons—regardless of immigration status, and regardless of their ties here—have certain cabined constitutional rights, including baseline procedural protections and the right to be free from gross physical abuse. But that does not mean that such unlawfully-present aliens are accorded the panoply of affirmative liberty rights that citizens and lawfully-present aliens possess.
The States—and the State of Texas in particular— are already spending enormous resources dealing with unlawful immigration. The court of appeals’ decision, though, creates a perverse incentive to unlawfully enter the country. This will further add to the substantial burden faced by the governmental entities trying to prevent and deal with unlawful immigration.

4
ARGUMENT
I. Unlawfully-Present Aliens with Virtually No Connections to the United States Have No Constitutional Right To An Elective Abortion.
The Court should vacate the decision below because the right asserted does not exist: Unlawfully-present aliens with virtually no connections to the country do not have a constitutional right to an elective abortion. The district court necessarily erred in entering—and the en banc court of appeals erred in upholding—the temporary restraining order. See Winter v. NRDC, 555 U.S. 7, 20 (2008) (preliminary injunctive relief unavailable if the plaintiff cannot establish a likelihood of success on the merits); Mazurek v. Armstrong, 520 U.S. 968, 970 (1997) (per curiam) (same).
The Decisions Below Overrode This Court’s Long-Settled “Substantial Connections” Test, Which Provides That the Degree of Connections to This Country Determines the Degree of Fifth Amendment Rights Accorded to Aliens.
The “initial inquiry” in assessing any due process claim is whether the Constitution protects the right the plaintiff asserts. See, e.g., Meachum v. Fano, 427 U.S. 215, 223-24 (1976). Only after confirming that the right at issue exists should a court move on to whether the government has violated that right. See id. The courts below thus should have begun their analysis by asking whether the right to an elective abortion recognized by this Court applies to unlawfully-present aliens with virtually no connections to this country who were apprehended while attempting to cross the border.

5
The answer to that question, as Judge Henderson correctly concluded, is “plainly—and easily—no.” Pet. App. 35a.
1. The Constitutional Rights of Aliens are Determined by a Sliding Scale Based on the Degree of Connections the Alien Has to the Country.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” This Court has held that unlawfullypresent aliens are “persons” protected by the Fifth Amendment. Plyler v. Doe, 457 U.S. 202, 210 (1982). The Court reiterated in 2001 that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).2
But simply because an individual is a “person” covered by the Fifth Amendment, it does not follow that the alien is necessarily “due” the same scope of rights accorded to citizens or lawfully-present aliens. This Court has held that the rights an alien is “due” depend on the connections that person has established with this country: United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990), clarified that Plyler’s Fifth Amendment analysis “establish[es] only that aliens receive constitutional protections when they have come within the territory of
2 Contrary to the statements in the panel dissent below, amici did not argue that unlawfully-present aliens are not “persons.” Cf. Pet. App. 16a.

6
the United States and developed substantial connections with this country.” Id. at 271 (emphasis added).
Verdugo-Urquidez emerged from this Court’s bedrock rule that an alien is “accorded a generous and ascending scale of rights as he increases his identity with our society.” Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (emphasis added). In other words, as set out first in Eisentrager and explained by Verdugo-Urquidez, an alien’s connections determine the scope of rights the alien is due. See id. As a person develops increasing connections with this country, the person’s constitutional protections expand. E.g., Verdugo-Urquidez, 494 U.S. at 268-69; see also Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (staying injunction of immigration order for aliens “who lack any bona fide relationship with a person or entity in the United States”). Initial lawful entry affords “safe conduct” and confers “certain rights,” which “become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.” Eistentrager, 339 U.S. at 770; see Landon v. Plasencia, 459 U.S. 21, 32 (1982) (alien’s “constitutional status changes” only after he “gains admission to our country and begins to develop the ties that go with permanent residence”).
No decision of this Court or any other court has abrogated that basic Eisentrager/Verdugo-Urquidez framework of a sliding scale of rights based on the degree of connections the alien has to the country. In particular, Zadvydas did not alter or undermine VerdugoUrquidez’s pronouncement that to invoke the full scope of Fifth Amendment rights, an unlawfully-present alien

7
must demonstrate “substantial connections.” See, e.g., Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (applying “significant voluntary connection” test from Verdugo-Urquidez); United States v. Meza-Rodriguez, 798 F.3d 664, 670 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (same). In fact, Zadvydas expressly limited its analysis to “aliens who were admitted to the United States but subsequently ordered removed.” 533 U.S. at 682 (emphasis added). By contrast, “[a]liens who have not yet gained initial admission to this country would present a very different question.” Id.
2. Unlawfully-Present Aliens With Virtually No Connections to the Country Lack the Panoply of Affirmatively Liberty Rights that Citizens and Lawfully-Present Aliens Possess, Although They Do Have Baseline Procedural Protections and the Right to be Free from Gross Physical Abuse.
a. The sliding-scale approach set out in Eisentrager and Verdugo-Urquidez recognizes that it is the rare exception where constitutional rights are accorded to unlawfully-present aliens with minimal connections to the country. Under that rare exception, the mere fact of presence in this country—even unlawful presence—does confer certain baseline constitutional rights against egregious harm, but not affirmative liberty rights. And even when certain limited constitutional rights are extended to unlawfully-present aliens, courts routinely hold that the full scope of a constitutional provisions’ rights do not extend to such aliens.

8
For example, mere unlawful presence confers a basic right against “gross physical abuse” in this country. Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014) (citing Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987)). The Constitution protects everyone on U.S. soil, even unlawfully-present aliens with no other ties to this country, against the “wanton or malicious infliction of pain” by governmental officials. Id.
The panel dissent—which the en banc majority below “substantially” adopted, Pet. App. 19a—argued that amici’s position would mean that the alien here and “everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction).” Pet. App. 16a. But that does not follow from amici’s position, and this Court’s precedents do not lead to that drastic outcome. The “deeply troubling” hypotheticals the panel dissent posited are thus fully resolved by a proper application of the Eisentrager/Verdugo-Urquidez framework. Cf. Pet. App. 16a.
Under the “ascending scale” of rights articulated in Johnson (339 U.S. at 770), reinforced in Landon (459 U.S. at 32), restated in Verdugo-Urquidez (494 U.S. at 268-69)—and applied in Lynch (810 F.2d at 1370) and Castro (742 F. 3d at 600)—all persons on U.S. soil are constitutionally protected against “gross physical abuse.” Castro, 742 F.3d at 600. However, even though the Constitution confers basic protection against gross physical abuse, full Fourth Amendment rights accorded to citizens do not apply to unlawfully-present aliens with

9
only minimal connections to the country. See, e.g., Castro, 742 F.3d at 599-600 (Fourth Amendment does not extend to unlawfully-present aliens who remain in the United States illegally, unless they are raising claims of “gross physical abuse”); United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (criminal defendant lacked “substantial connection” with U.S. necessary to invoke Fourth Amendment protection under VerdugoUrquidez).
In addition to the gross-physical-abuse prohibition, the mere fact of presence in this country—even unlawful presence—also confers a certain set of basic procedural guarantees before the federal government can deport the individual. See, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003) (it is “well established” that aliens have due-process rights in deportation hearings). But even then, the full scope of procedural due process rights guaranteed to citizens does not extend to unlawfully-present aliens. See, e.g., id. at 521 (“‘In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.’” (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976))); accord, e.g., Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting) (“The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however.” (citing Mathews, 426 U.S. at 79-80)).
In sum, the fact that basic procedural safeguards and protections against “gross physical abuse” are afforded to everyone on U.S. soil does not mean that the full panoply of constitutional rights accorded to citizens extends

10
to each unlawfully-present alien with only minimal connections to the country. See Verdugo-Urquidez, 494 U.S. at 268-69.
b. Furthermore, courts routinely hold that unlawfully-present aliens with minimal connections to the country lack affirmative liberty rights.
For example, numerous courts have held that unlawfully-present aliens with minimal connections to the country do not have the Second Amendment “fundamental right” (McDonald v. City of Chicago, 561 U.S. 742, 778 (2010)) to keep and bear arms. United States v. Portillo–Munoz, 643 F.3d 437, 442 (5th Cir. 2011) as revised (June 29, 2011); United States v. Carpio–Leon, 701 F.3d 974, 979 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam); cf. Meza-Rodriguez, 798 F.3d at 669-672 (unlawfully-present alien had Second Amendment rights only because he arrived in the U.S. at a young age and lived here for 20 years).
And full First Amendment rights do not extend to unlawfully-present aliens without substantial connections to the country. See, e.g., Citizens United v. FEC, 558 U.S. 310, 362 (2010) (noting federal statute, now codified at 52 U.S.C. §30121, prohibiting “foreign national[s]” from making direct contributions or independent expenditures for political speech); Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (alien may be returned to home country for engaging in disfavored political speech in this country); Galvan v. Press, 347 U.S. 522, 531 (1954) (government may restrict alien’s freedom of association).
The Department of Justice has explicitly advanced this view in previous litigation. See Federal Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for

11
TRO at 13, Pineda-Cruz v. Thompson, No. 5:15-cv-00326 (W.D. Tex. May 7, 2015) (Dkt. 22) (“Because Plaintiffs never gained entry into the United States and have not developed substantial connections with this country, they are not within the scope of individuals contemplated by the Supreme Court as being able to raise claims under the First Amendment.”). In fact, the federal government has, on dozens of occasions, argued that unlawfully-present aliens lack the full scope of constitutional rights afforded to citizens. See infra Part II.B.2.
These principles establishing that unlawfully-present aliens lack affirmative liberty rights held by citizens comport with this Court’s declaration that aliens subject to deportation may be detained as their deportation is processed. See, e.g., Kim, 538 U.S. at 523 (“At the same time, however, this Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.”). With physical detention necessarily comes a restriction of liberties.
c. The affirmative substantive due process right recognized by the Court to seek the medical procedure of an elective abortion is much more analogous to the affirmative liberty rights courts have repeatedly held are not accorded to unlawfully-present aliens who lack substantial connections to the country. In contrast, baseline procedural safeguards and the basic protection against gross physical abuse are negative prohibitions on drastic government conduct (detention and removal without any process, and gross physical abuse).
Respondent has never offered any authority to the contrary. In the proceedings below, respondent argued that the alien’s immigration status has no impact at all

12
on the constitutional rights she may assert. That is wrong, as the authorities above confirm. Moreover, the authorities respondent relied on below do not establish the right to an elective abortion.
Respondent relied on various abortion cases, including Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (plurality op.), for the proposition that “the government may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Plaintiff’s Memorandum in Support of Her Application for a Temporary Restraining Order and Motion for Preliminary Injunction, Garza v. Hargan, No. 1:17-cv-02122 (D.D.C. Oct. 14, 2017) Dkt. 3-2 at 9-10 (citing Casey, 505 U.S. at 871 (plurality op.); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 74 (1976), and Bellotti v. Baird, 443 U.S. 622, 633 n.12 (1979)). But not one of respondent’s cited cases says or implies that the substantive due process right to abortion recognized by this Court extends to unlawfully-present aliens—especially not those who have no ties to this country.
Respondent further offered a string citation of cases, but none of those cases support the proposition that unlawfully-present aliens have the right to an elective abortion. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015), for example, concerned whether the government could continue to detain asylum applicants after those individuals had demonstrated a credible fear of persecution. Each of the applicants had family members in the United States who had agreed to provide shelter and support for the asylum-seekers. On those facts, and in

13
light of the plaintiffs’ threshold showing of asylum eligibility, the district court held that they could invoke the protection of the Due Process Clause. Here, the operative complaint says nothing about asylum, alleges no connection to the U.S. at all, and offers no basis to believe that the alien is on track to permanent residence.
Respondent’s other authorities fare no better. Respondent claimed the alleged abortion right was derived from Plyler, 457 U.S. at 210. But as explained above, this Court explicitly clarified and supplanted Plyler in Verdugo-Urquidez, 494 U.S. at 270-71. So too with Mathews, 426 U.S. at 77, which concerned resident aliens who were lawfully admitted to the United States; plus, Mathews too was clarified and supplanted by Verdugo-Urquidez. And Kwai Fun Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004), concerned an alien who had been lawfully present in the U.S. for almost two decades—in other words, someone who had established “substantial connections” under Verdugo-Urquidez.
In short, none of respondent’s cited authorities support the extraordinary constitutional holding in the courts below.
The Operative Complaint Confirmed that the Alien At Issue Here Had No “Substantial Connections” to This Country, and Therefore Had No Right to an Elective Abortion.
The operative Complaint (Dist. Ct. Dkt. 1) confirmed that that alien here had no other connection to the United States:

14
 Paragraphs 4 and 5 summarized the aliens’ situation but offered no allegations establishing a connection to the United States other than her unlawful presence.
 Paragraph 13 alleged: “J.D. was detained by the federal government and placed in a federally funded shelter in Texas. J.D. is years [sic] old, pregnant, and told the staff at the shelter where she is currently housed that she wanted an abortion.” This paragraph admitted that the alien entered the United States unlawfully but offered no allegations establishing a connection to the United States.
 Paragraphs 14 and 15 discussed the alien’s efforts to obtain an abortion during her time in custody.
 Paragraphs 33, 34, 35, 36, and 43 alleged that the defendants restricted the alien’s ability to receive an abortion in the United States.
The alien even admitted below that that she has “no legal immigration status.” Declaration, Dist. Ct. Dkt. 3-2 at 3. And the declaration that the alien submitted in support of her motion for a temporary restraining order confirmed no substantial ties to this country: The alien explicitly admitted she was “detained upon arrival.” Dist. Ct. Dkt. 3-3 ¶ 4.
Those undisputed facts should have resolved this case “plainly” and “easily,” as Judge Henderson recognized below. Pet. App. 35a. Under Verdugo-Urquidez, the alien must show “substantial connections” to assert full Fifth Amendment affirmative liberty rights. 494 U.S. at 271. She did not do so. See Dist. Ct. Dkt. 1. She thus stands at

15
the start of the “ascending scale of rights” that individuals climb as they “increase[] [their] identity with our society.” Eisentrager, 339 U.S. at 770. At that level, the Constitution protects her against “gross physical abuse” in this country. Castro, 742 F. 3d at 600. The Constitution further confers some basic procedural guarantees related to her deportation proceedings. Kim, 538 U.S. at 523. But as Verdugo-Urquidez, Eisentrager, and Kim confirm, it does not accord the affirmative liberty right to an elective abortion. II. The Court of Appeals Did Not Even Cite This
Court’s “Substantial Connections” Test, Which Is Well Accepted. The court below entirely overlooked the bedrock principles articulated in Eisentrager and Verdugo-Urquidez, even though those principles confirm that an unlawfully-present alien with virtually no ties to this country has no right to an elective abortion. That “initial inquiry,” Meachum, 427 U.S. at 223-24, appears nowhere in any decision below. The fact that the court of appeals not only reached the wrong result, but also applied the fundamentally wrong framework, is further grounds to vacate its judgment. See United States v. Munsingwear, 340 U.S. 36, 40-41 (1950).3
3 Amici fully briefed this Verdugo-Urquidez framework to the courts below. See Br. for Texas et al., Garza v. Hargan, No. 1:17cv-02122-TSC (D.D.C.) (Oct. 17, 2017); Br. for Texas et al., Garza v. Hargan, No. 17-5236 (D.C. Cir.) (Oct. 19, 2017).

16
The Courts Below Had a Duty to Apply the Correct Law.
As Judge Henderson’s dissent recognized, Pet. App. 35a, 42a, regardless of what the parties have argued, the court of appeals should have decided the predicate constitutional question before issuing such a momentous holding. See, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (if a party “fail[s] to identify and brief” “an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute,” an appellate court may consider the issue sua sponte (citation omitted)). After all, “even an explicit concession on this point would not ‘“relieve this Court of the performance of the judicial function”’ of deciding the issues.” Torres v. Puerto Rico, 442 U.S. 465, 471 n.3 (1979) (quoting Sibron v. New York, 392 U.S. 40, 59 (1968)). Moreover, a government’s “concessions cannot be accepted” when they are contrary to law. Massachusetts v. United States, 333 U.S. 611, 625 (1948).
In short, regardless of what the parties argued, the court of appeals was still required to apply the correct legal framework. See id. Because the court of appeals’ wholly incorrect framework is now law, it should be set aside.
The “Substantial Connections” Test Is Widely Cited and Applied as Controlling.
1. The court of appeals’ failure here to address the Verdugo-Urquidez substantial-connections, sliding-scale test is particularly striking given that other circuits uniformly and routinely apply this controlling test when determining whether aliens can assert constitutional

17
rights. E.g., Meza-Rodriguez, 798 F.3d at 670; Ibrahim, 669 F.3d at 995; United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012); Portillo-Munoz, 643 F.3d at 440; Vilches-Navarrete, 523 F.3d at 13; Atamirzayeva v. United States, 524 F.3d 1320, 1325 (Fed. Cir. 2008); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 202 (D.C. Cir. 2001).
As these citations demonstrate, the arguments amici and Judge Henderson advanced simply reflect basic principles that have governed the rights of aliens for decades.
2. In conformance with the circuits’ widespread adherence to this Court’s established precedent, the Department of Justice has relied on Verdugo-Urquidez’s substantial-connections test dozens of times to argue that unlawfully-present aliens without sufficient ties to the country lack constitutional rights.
Just months ago, the Department argued in this Court that:
[A]n alien arrested shortly after crossing the U.S. border surreptitiously cannot lay the same claim to constitutional protections as aliens who were lawfully admitted or who entered illegally then became, “in a[] real sense, a part of our population[.]”
Brief for the Respondents in Opposition, Castro v. Dep’t of Homeland Sec., 137 S. Ct. 1581 (2017) (No. 16-812), 2017 WL 1046315, at *17.
That is not the only time this year that the Department made that argument in this Court. See, e.g., Brief for the United States, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118), 2017 WL 104588 at *35 (arguing

18
that, under Verdugo-Urquidez, aliens are “afforded constitutional protections only when ‘they ha[d] come within the territory of the United States and developed substantial connections with this country’”); Transcript of Oral Argument at 17, Jennings v. Rodriguez, No. 151204 (U.S. October 3, 2017) (Q: “is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?” A: “It is premised on that.”).4
The Department has made similar arguments in the Fifth Amendment context in other courts. E.g., Reply in Support of Appellants’ Brief, Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (No. 17-55208), 2017 WL 1055525, at *13 n.6 (“Aliens identified at the border who have not had any contact with the United States—even if they are subsequently paroled into the territorial United States during the resolution of their applications for admission— are not entitled to any process other than that provided by statute.”); Brief for Appellee, United States v. Kole, 164 F.3d 164 (3d Cir. 1998) (No. 96-5457), 1996 WL 33453512, at *24 (“the Constitution was ‘not intended to extend to aliens in the same degree as to citizens’”); Brief for Respondent, Wigglesworth v. I.N.S., 319 F.3d 951 (7th Cir. 2003) (No. 02-1209), 2002 WL 32170294, at *19*21 (“In order for the due process clause to apply, there must be an identifiable life, liberty or property interest. It is clear that any liberty interest [petitioner] may have
4 The Department later modified its response to suggest that aliens might have some rights (which is also consistent with amici’s position, as explained above), but certainly not the full scope afforded citizens. Tr. at 17-18.

19
in this regard is so weak that she clearly has no right to a hearing before an immigration judge…[petitioner] is not a permanent resident of the United States or even a temporary resident.”).
And the Department has explicitly relied on the Eisentrager “ascending scale” analysis to argue against expanded due process rights for unlawfully-present aliens. E.g., Brief for Appellee United States, United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (No. 13-50129), 2013 WL 6221846, at *13–15 (“[T]here has long been a sliding-scale approach to determining the rights to be afforded to aliens by the Due Process Clause. Under that approach, aliens generally enjoy more rights as a function of their legality/longevity in this country. On one end of the scale is the undocumented alien; in the middle is the lawful permanent resident; and at the opposite end is the naturalized citizen. As an alien moves from one end of the scale to the other, his rights increase . . .”); Brief for Defendant-Appellee Robert S. Mueller, Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008) (No. 06-4216-CV), 2007 WL 7285642 at * 32-33 (similar); Brief for Cross-Appellees and Reply Brief for Appellants, Gutierrez v. Ashcroft, 125 F. App’x. 406 (3d Cir. 2005) (Nos. 03-4798, 041031), 2004 WL 4184747, at *16, 20 (similar).
Even beyond the due-process context, the Department has invoked Verdugo-Urquidez’s substantial-connections test to argue against various other constitutional rights for aliens without sufficient ties to the country:
• First Amendment. E.g., Federal Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for TRO at 13, Pineda-Cruz v. Thompson, No.

20
5:15-cv-00326 (W.D. Tex. May 7, 2015) (Dkt. 22) (“Because Plaintiffs never gained entry into the United States and have not developed substantial connections with this country, they are not within the scope of individuals contemplated by the Supreme Court as being able to raise claims under the First Amendment.”).
• Second Amendment. E.g., Brief for the United States as Appellee, United States v. Torres, No. 15-10492 (9th Cir. July 15, 2016), 2016 WL 3878372, at *22 (“unauthorized aliens do not have a Second Amendment right to bear arms”); Brief and Short Appendix of Plaintiff-Appellee, United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (No. 143271), 2015 WL 2064443, at*13-*15 (“[T]he government asserts that the term ‘the people’ within the Second Amendment properly excludes illegal aliens.”); Brief for the United States, United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011) (No. 11-10086), 2011 WL 2115676, at *7 (“illegal immigrants do not possess Second Amendment rights”); Brief of Plaintiff/Appellee, United States v. Rangel-Hernandez, 597 F. App'x 553 (10th Cir. 2015) (No. 14-7056), 2015 WL 222869, at *8-*17 (arguing that an unlawfully-present alien has no Second Amendment rights).
• Fourth Amendment. E.g., Appellee’s Brief, Castro v. Cabrera, 742 F.3d 595 (5th Cir. 2014) (No. 13-40017), 2013 WL 8635071, at *25 (“Plaintiffs who were seeking admission as aliens were not entitled to constitutional protections, because they

21
had not yet ‘come within the territory of the United States.’”).
• Sixth Amendment. E.g., Reply Brief for Appellant United States at 9, United States v. Ospina, 317 F. App’x 684 (9th Cir. 2009) (No. 08-50461), 2008 WL 6822006 (defendant’s rights “should have turned on objective factors and practical concerns, such as his citizenship, lack of substantial ties to the United States . . . . In [defendant]'s case, that right must be considered diminished, relative to the speedy trial right of others with more substantial ties to the United States, living within the sovereign or diplomatic reach of the United States.”).
These authorities confirm that the analyses set out in Verdugo-Urquidez and Eisentrager not only are axiomatic, but that they are routinely applied in the exact situation this case presents. The court of appeals’ failure to even recognize, let alone apply, the proper legal framework confirms that its decision should be vacated. See Munsingwear, 340 U.S. at 40-41.
III. If Left in Place, the Decision Below Will Exacerbate Unlawful Immigration and Further Strain the States’ Limited Resources.
As this Court has recognized, the States already “bear[] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397. In short, “[t]he States lose badly needed tax dollars each year due to the presence of illegal aliens—a clear drain upon their alreadytaxed resources.” Texas v. United States, 86 F. Supp. 3d 591, 631 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), as

22
revised (Nov. 25, 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). If allowed to stand, the court of appeals’ decision will only exacerbate those losses by inviting everyone who reaches this country unlawfully—no matter how briefly—to demand the full scope of constitutional rights.
The State of Texas, in particular, already expends substantial resources trying to deal with unlawful immigration. Two decades ago, the Fifth Circuit recognized that Texas’ “educational, medical, and criminal justice expenditures on undocumented aliens” were over a billion dollars annually. Texas v. United States, 106 F.3d 661, 664 (5th Cir. 1997). And “in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens.” Texas, 86 F. Supp. 3d at 630.
The State of Texas continues to incur these staggering costs caused by unlawful immigration. For example, during the 2013 fiscal year (the most recent year for which such data has been compiled) the State of Texas alone spent approximately $90 million on emergency Medicaid services for unlawfully-present aliens. See Texas Health and Human Services Commission, Report on Texas Health and Human Services Commission Services and Benefits Provided to Undocumented Immigrants (Dec. 2014), https://hhs.texas.gov/reports/2015/02/report-health-and-human-services-commission-services-and-benefits-provided-undocumentedimmigrants. That was almost a $20 million increase over the $71 million spent on such services in 2011, and almost a 50% increase over the $62 million spent on such services in 2009. Id. The State of Texas further spent approximately $38 million during the 2013 fiscal year

23
providing coverage for perinatal care. That was millions more than it spent in 2011 ($35 million) and 2009 ($33 million). Id.
When more benefits are given to unlawfully-present aliens, it will incentivize even more aliens to enter the country unlawfully and “will increase the number of individuals that demand them.” Texas, 86 F. Supp. 3d at 634. The State’s Health and Human Services Commission has thus correctly projected the estimated sums will continue to rise as the number of unlawfully-present aliens increases within the State’s borders. See Plaintiff’s Reply in Support of Motion for Preliminary Injunction at 53, Texas v. U.S., 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-00254). Plus, unlawfully-present aliens are less likely to have health insurance and are more likely to rely on emergency rooms or public clinics for health care. Congressional Budget Office, The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments (Dec. 2007), at 8, https://www.cbo.gov/publication/41645.
The rapid increase in unaccompanied minors such as the alien here accounts for much of those cost trends. From 2011 to 2014, the number of unaccompanied minors apprehended at the border more than quadrupled— from 17,109 in 2011 to 73,741 in 2014. U.S. Government Accountability Office, Unaccompanied Children: HHS Can Take Further Actions to Monitor Their Care, GAO16-180 (Feb. 2016), at 4, https://www.gao.gov/products/GAO-16-180. Of those 73,741, nearly 57,500 were turned over to the care of the Office of Refugee Resettlement. Id. at 1. This rapid increase “has at times strained

24
ORR’s capacity to find shelter beds,” id. at 2, and “created challenges for the communities in which these children are eventually placed.” Id. Furthermore, the increase in facilities combined with insufficient resources have prevented ORR from performing required on-site monitoring of facilities, in some cases for several years. Id. at 26-27.
Large influxes of unaccompanied minors also strain States’ education resources. The State of Texas bears the cost of about $9,473 per child for the public education of unlawfully-present alien children. Texas, 86 F. Supp. 3d at 630. From October 2013 to September 2014, “Texas absorbed additional education costs of at least $58,531,100 stemming from illegal immigration.” Id.
The costs are not just financial. This Court in Arizona recognized the “disproportionate share of serious crime” committed by unlawfully-present aliens in Arizona’s most populous county. 567 U.S. at 398. Indeed, “there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.” Id. (citation omitted).
States like amici “cannot protect themselves from the costs inflicted” by a massive uptick in the number of individuals able “to compel state action.” Texas, 86 F. Supp. 3d at 620. That is why the States have consistently fought against any effort to “explicitly or impli[citly] solicit immigrants to enter the United States illegally.” Id. at 630.
Yet the decision below does exactly that. The court of appeals’ decision effectively announces that anyone on Earth has any number of constitutional rights simply by

25

being apprehended while trying to cross the United States border unlawfully. This holding will make the unlawful immigration crisis worse and further strain the budgets and resources of governments throughout the Nation.

*

*

*

The federal government has suggested that respondent counsel’s efforts to thwart this Court’s review may warrant disciplinary action. Pet. 26-28. The propriety of such action could turn on representations in documents
amici cannot review. See, e.g., Pet. 12-13. Because amici do not have access to these materials, amici are unable to take a definitive position on this issue. But it is abundantly clear that the federal government intended to seek this Court’s review in an expeditious matter within
24 hours of the court of appeals’ en banc decision. See Pet. 9, 11. At a minimum, these extraordinary circumstances further warrant vacatur.

26

CONCLUSION
The petition for a writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded to the court of appeals with instructions to remand to the district court for dismissal of all claims for prospective relief regarding pregnant unaccompanied minors.

DECEMBER 2017
LESLIE RUTLEDGE Attorney General of
Arkansas
M. STEPHEN PITT General Counsel for Governor of Kentucky, Matthew G. Bevin
JEFF LANDRY Attorney General of
Louisiana
BILL SCHUETTE Attorney General of
Michigan
JOSH HAWLEY Attorney General of
Missouri
DOUG PETTERSON Attorney General of
Nebraska

Respectfully submitted.
KEN PAXTON Attorney General of
Texas
JEFFREY C. MATEER First Assistant
Attorney General
SCOTT A. KELLER Solicitor General
Counsel of Record
KYLE D. HAWKINS Assistant Solicitor General
DAVID J. HACKER Special Counsel for
Civil Litigation
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 scott.keller@oag.texas.gov (512) 936-1700

27
MIKE DEWINE Attorney General of
Ohio MIKE HUNTER Attorney General of
Oklahoma ALAN WILSON Attorney General of
South Carolina PATRICK MORRISEY Attorney General of
West Virginia

 
 Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, et al.,
Plaintiffs,
v.
ERIC D. HARGAN, et al.,
Defendants.

) ) ) ) ) ) No. 17-cv-02122-TSC ) ) ) )

PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITIONS TO MOTION FOR A TEMPORARY RESTRAINING ORDER In their Opposition to Plaintiffs’ Motion for a Temporary Restraining Order, Defendants do not take serious issue with the fact that barring unaccompanied immigrant minors from obtaining abortions violates the Constitution. Instead, they argue that there are reasons unique to Ms. Roe’s and Ms. Poe’s situations that allow the government to continue to prevent each of these young women from getting an abortion. None of these arguments has any merit. First, Defendants argue that preventing Ms. Roe from obtaining an abortion is not an undue burden because ORR may, at some point, approve a sponsor for her. This argument fails on multiple levels. As an initial matter, every day that a woman is forced to remain pregnant against her will inflicts physical, psychological, and constitutional harm upon her. Here, even according to Defendants, the government would be forcing her to remain pregnant for at least two additional weeks. The government made precisely the same argument with respect to Jane Doe, see Appellants’ Resp. to Appellee’s Pet. for Reh’g En Banc 1, Garza v. Hargan, No. 175236, Doc. No. 1700788, Oct. 23, 2017 (arguing to en banc Court that stay of 11 days to reunite Ms. Doe with a sponsor was appropriate), and yet the en banc Court denied the stay, Garza v.

1

Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 2 of 7
Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017). Finally, as developments regarding Jane Doe have shown, Defendants’ predictions on this score are notably unreliable. Although the government asserted on October 23 that it believed that Jane Doe could be reunified with a sponsor by October 31, see Declaration of Jonathan White ¶ 16 (ECF No. 40), it is now December 18 and Ms. Doe continues to reside in the shelter. And, as even Defendants’ evidence makes plain, the two-week estimate that Defendants discuss in their brief is a rosy, best-case scenario. In fact, what their own declaration reveals is that “additional documents, fingerprint results, and a home study are required,” before a sponsor can be approved. White Decl. ¶ 4 (ECF No. 66-1). And it is only “if the potential sponsor promptly gets us the additional documents [the government] need[s], and if the background check and home visits return favorable results, [the government] estimate[s] the process of reunification would be completed within two weeks.” Id. (emphases added).1 Notably, all of those contingencies are entirely outside Ms. Roe’s control. For all of these reasons, Defendants’ reprise of their argument that they should be allowed to force a young woman to remain pregnant unless and until ORR approves a sponsor should again be rejected.
Second, Defendants make a somewhat convoluted argument that because Ms. Roe and Ms. Poe live in states that do not require a judge to determine whether they are mature enough to make the abortion decision, ORR somehow has the right to outright block them from having an
1 Indeed, as Plaintiffs explained in their Petition for Rehearing En Banc, it is wishful thinking to suggest that the government will be able to sufficiently vet and approve a sponsor in such a short time frame. Pls.’ Pet. for Reh’g En Banc 8-9, Garza v. Hargan, No. 17-5236, Doc. No. 1700730 (D.C. Cir. Oct. 22, 2017). Indeed, as described in the Declaration of former Director of ORR Robert Carey that Plaintiffs submitted in support of their Petition, the process of vetting and approving a sponsor is necessarily extensive and takes significant time, at minimum several weeks or months, not days. See Carey Decl. ¶ 28 (ECF No. 23-1).
2

Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 3 of 7
abortion. Defs.’ Opp. to Pls.’ Mot. for TRO (“Defs.’ Br.”) at 8-9 (ECF No. 66). But the states in which the Plaintiffs live have determined as a matter of their public policy that neither parental consent nor a judicial bypass is required before a minor can have an abortion. Rather, minors in those states are legally entitled to consent on their own for an abortion, if, as is true for all women, the health care professional determines that they are capable of providing informed consent to the procedure. ORR cannot rely on its interest in “protecting the interests of the child,” Defs.’ Br. at 8, to give it greater rights to interfere with a minor’s abortion decision than the minor’s own parents in the same state would have. Such an assertion turns notions of federalism on their head, giving the federal government more control over minors’ healthcare decisions in states that have chosen to place fewer restrictions on those decisions. Moreover, any requirement of parental (or ORR) consent in the absence of an effective, expeditious, and confidential bypass mechanism would be unconstitutional. See Bellotti v. Baird, 443 U.S. 622, 644 (1979).
Third, Defendants make somewhat contradictory arguments about the significance of the viability line. On the one hand, Defendants argue that they can delay Ms. Roe’s abortion while they search for a sponsor because she “has several weeks remaining pre-viability in which an abortion would be legally permissible.” Defs.’ Br. at 2. At the same time, Defendants have not granted the shelter permission to transport Ms. Poe for an abortion because “she is now approaching the point of viability, if she is not already there.” Defs.’ Br. at 7. In any event, the fact that a woman may be approaching a point at which abortion is no longer legal does not entitle the government to prevent her from being seen by a physician who can accurately date the pregnancy and, if legal, provide the abortion. Quite the contrary: That Ms. Poe may be
3

Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 4 of 7
approaching that line is exactly why the TRO must be granted immediately, and why the government’s request for a stay of any length must be denied.
Fourth, Plaintiffs are once again not requesting that the government provide funds for Ms. Roe’s and Ms. Poe’s abortions—as Plaintiffs stated in their Memorandum in Support of their Application for a TRO, “[p]rivate funds will be used to pay for both Ms. Roe’s and Ms. Poe’s procedures.” Mem. in Supp. of TRO 7 (ECF No. 63-1).
Finally, Defendants have filed a brief in their personal capacities making a legal argument that they have deliberately not made in their official capacities. But they cannot properly oppose the pending motion for a temporary restraining order in their personal capacities, because the only relief sought by that motion is injunctive, and therefore would run against them only in their official capacities—i.e., against the government.
There are many important differences between official-capacity and personal-capacity claims. Federal defendants cannot be sued for injunctive relief in their personal capacity, because in that capacity they have no power to take official governmental action or to give orders to government employees. Defendants concede as much. See Defs’ Br. at 1 n.1 (“government officials may not be sued in an individual capacity for equitable relief relating to their performance of official duties”), citing Auleta v. United States Dep’t of Justice, No. 11-cv- 2131 (RWR), 2015 WL 738040, at *4 (D.D.C. Feb. 20, 2015)); accord Davidson v. United States Dep’t of State, 113 F. Supp. 3d 183, 194 (D.D.C. 2015) (Contreras, J.) (“It is well established that there is no basis for suing a government official for declaratory and injunctive relief in his or her individual or personal capacity.”) (internal quotation marks and citation omitted). Injunctive relief can run against them only in their official capacities. See, e.g., Hatfill v. Gonzales, 519 F. Supp. 2d 13, 26 (D.D.C. 2007) (Walton, J.) (“[T]he relief Dr. Hatfill seeks can only be provided
4

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by the government through government employees acting in their official capacities because

deprivation of a constitutional right can only be remedied by the government.”). By contrast,

Defendants cannot be sued for damages in their official capacities because sovereign immunity

bars such relief, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), but they can be (as they have been) sued for damages in their personal capacities, see

id. In short, “a suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. As such, it is no different from a suit

against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, (1989) (citation

omitted).

It is precisely for reasons like these that the Defendants here are represented in their

personal capacities by separate, private counsel. They are entitled to defend themselves, through

their private counsel, against the claims made against them in their personal capacities. But they

are not entitled to defend themselves through their private counsel against the claims made

against them in their official capacities because their private counsel simply does not represent

them with respect to such claims and such relief. Rather, the United States Department of Justice

represents them on those claims, and a party cannot be represented in a single case by multiple

counsel taking inconsistent positions on the same claims. (Imagine a criminal defendant pleading

guilty and not guilty as to the same charge through separate counsel.)

The brief filed by the Defendants in their personal capacities should accordingly be

disregarded.

Date: December 18, 2017

Respectfully submitted,

Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia

5

Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 6 of 7
4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/ Brigitte Amiri Brigitte Amiri (admitted pro hac vice) Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
6

Case 1:17-cv-02122-TSC Document 69 Filed 12/18/17 Page 7 of 7 Attorneys for Plaintiffs
7

 
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

TEMPORARY RESTRAINING ORDER Upon consideration of Plaintiffs’ Application for a Temporary Restraining Order and any opposition, reply, and the entire record in this case, it is therefore ORDERED that Plaintiffs’ Application for a Temporary Restraining Order is hereby GRANTED.
FINDINGS OF FACT 1. Plaintiff J.R. is a 17-year old unaccompanied minor who entered the United States without
legal documentation. (Decl. of Jane Roe, ECF No. 63-2). 2. J.R. was detained at the U.S. border, and was remanded to a shelter in an undisclosed
location under a cooperative agreement with the Office of Refugee Resettlement (ORR). (Decl. of Jane Roe, ECF No. 63-2). 3. J.R. learned she was pregnant following a medical examination on November 21, 2017. The physician who so informed her described her options to her, and she decided to terminate her pregnancy. (Decl. of Jane Roe, ECF No. 63-2).

1 19

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4. J.R. has not been permitted to obtain an abortion, and is now approximately 10 weeks pregnant. (Decl. of Jane Roe, ECF No. 63-2).
5. Plaintiff J.P. is a 17-year old unaccompanied minor who entered the United States without legal documentation. (Decl. of Jane Poe, ECF No. 64-1).
6. J.P. was detained at the U.S. border, and was remanded to a shelter in an undisclosed location under a cooperative agreement with ORR. (Decl. of Jane Poe, ECF No. 64-1).
7. J.P.’s physician informed her in or around the week of December 11, 2017 that her pregnancy had entered the second trimester. Her physician described her options to her, and she decided to terminate her pregnancy. (Decl. of Jane Poe, ECF No. 64-1).
8. J.P. has not been permitted to obtain an abortion, and is now approximately 22 weeks pregnant. (Decl. of Jane Poe, ECF No. 64-1); (Decl. of Jonathan White, ECF No. 66-1).
9. In March 2017, ORR announced that all federally funded shelters are prohibited from taking “any action that facilitates” abortion access for unaccompanied minors absent “direction and approval from the Director of the ORR.” (ECF No. 3–5 at 2). This policy remains in effect at this time with respect to J.R. and J.P.
10. Defendants maintain that J.R. and J.P. may obtain an abortion only if: (1) an individual indicates his or her willingness to serve as a sponsor for J.R. or J.P., qualifies for that position under applicable legal requirements, completes the administrative review process, and is approved by ORR; or (2) J.R. and J.P. voluntarily return to their respective home countries.
11. The process of identifying, vetting, and approving sponsors is lengthy and complex, involving multiple steps that can take weeks or months to complete. The process typically involves completion and submission of an application, requirements for extensive documentation of prior relationship to the minor and/or the minor’s family, background
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checks, home visits, and multiple stages of administrative review. The minor has no control over the sponsorship process, and ultimately the decision whether to approve a particular sponsor rests with ORR. (Decl. of Robert Carey, ECF No. 23-1 at 2, 4, 5–7). 12. With respect to J.R., a family member who is a U.S. citizen has submitted an application. That individual has yet to provide the necessary documentation or fingerprint results, has not undergone the necessary background checks, and the required home visits have not taken place. Although the Government estimates that sponsor reunification could be completed within two weeks, (Decl. of Jonathan White, ECF No. 66-1), Government’s counsel conceded at the December 18, 2017 hearing on Plaintiffs’ Application for a Temporary Restraining Order that: (1) the potential sponsor is in control of the timing, as it is the potential sponsor who must provide fingerprint information and other necessary documentation; and (2) even if the sponsor were to provide all outstanding materials expeditiously, the Government’s estimate depends on the absence of any items of concern that could be uncovered by either or both of: (a) the background check or (b) the home study. 13. With respect to J.P., Government counsel informed the court at the December 18, 2017 hearing on Plaintiffs’ Application for a Temporary Restraining Order that ORR has decided and declared that it will not permit her to effectuate her choice to have an abortion, and to date no potential sponsors for J.P. have been identified. 14. Private funds will be used to pay for J.R. and J.P.’s abortion procedures, and shelter staff will transport J.R. and J.P. to their respective providers. Federal funds will not be used to pay for any abortion procedure that J.R. or J.P may choose to undergo. (Plaintiffs Jane Roe’s and Jane Poe’s Memorandum in Support of Their Application for a Temporary Restraining Order at 7, ECF No. 63-1).
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CONCLUSIONS OF LAW 1. The situation with respect to the application of ORR’s policy to unaccompanied pregnant
minors in its care has not materially changed between October 2017 and December 2017. ORR continues to claim—and in the case of J.P., has actually exercised—ultimate authority to unilaterally veto the reproductive choices of the unaccompanied minors in its custody. With regard to the undue burden that veto represents, ORR maintains substantially the same positions that were considered in October by this court and by the D.C. Circuit sitting en banc. 2. Thus, in view of the need to preserve J.R. and J.P.’s constitutional right to decide whether to carry their pregnancies to term—including their right to change their minds regarding the same—and for substantially the same reasons given in Judge Millett’s dissenting statement issued on October 20, 2017, and substantially adopted by the Court of Appeals sitting en banc in its Order of October 24, the court finds: (1) Plaintiffs are likely to succeed on the merits of their action; (2) if Defendants are not immediately restrained from prohibiting shelter staff from transporting J.R. and J.P. to abortion facilities or otherwise interfering with or obstructing their access to an abortion, J.R. and J.P. will both suffer irreparable injury in the form of, at a minimum, increased risk to their health, and perhaps the permanent inability to obtain a desired abortion to which they are legally entitled; (3) the Defendants will not be harmed if such an order is issued; and (4) the public interest favors the entry of such an order. Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are, for fourteen days from the date shown below:
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1. Required to transport J.R. and J.P.—or allow J.R. and J.P. to be transported—promptly and without delay, on such dates, to an abortion provider, in order to obtain any pregnancy or abortion-related medical care and to obtain the abortion procedure itself, in accordance with the abortion providers’ availability and any medical requirements.
2. Temporarily restrained from interfering with or obstructing J.R.’s and J.P.’s access to abortion counseling or an abortion;
3. Temporarily restrained from forcing J.R. and J.P. to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves;
4. Temporarily restrained from retaliating against J.R. and J.P. based on their decisions to have an abortion;
5. Temporarily restrained from retaliating or threatening to retaliate against the contractors that operate the shelters where J.R. and J.P. currently reside for any actions that those contractors or shelters have taken or may take in facilitating J.R. and J.P’s ability to access pregnancy and abortion-related medical care and/or an abortion.
It is further ORDERED that Plaintiffs shall not be required to furnish security for costs. The execution of the foregoing Order shall be stayed for 24 hours from the date and time of entry to preserve the opportunity to seek emergency relief from the D.C. Circuit. Failure to comply with the terms of this Order may result in a finding of contempt.

Date: December 18, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

5 23

 
 Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad

)

litem to unaccompanied minor J.D., on

)

behalf of J.D. and others similarly

)

situated; JANE ROE on behalf of herself and )

others similarly situated; and JANE POE,

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

Civil Action No. 17-cv-02122 (TSC)

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PROVISIONAL CLASS CERTIFICATION AND NOTICE Based on the identification of two additional individuals in the custody of Defendants Department of Health and Human Services’ (“HHS”) Office of Refugee Resettlement (“ORR”) requesting abortions, Plaintiffs ask the Court to provisionally certify a class of pregnant unaccompanied children (“UACs”) and order the Office of Refugee Resettlement (“ORR”) to notify the class members about this lawsuit and the opportunity to consult class counsel. Plaintiffs also seek an order compelling ORR to provide Plaintiffs’ counsel with the names, locations, and certain private, medical information for all pregnant UACs in ORR’s custody. ECF No. 90 at 4. However, the provisional class certification mechanism was struck from Federal Rule of Civil Procedure 23 more than a decade ago. And even if Federal Rule 23 still authorized provisional class certification, Plaintiffs have still not shown that the requirements for class certification are met. See ECF No. 53 (Defendants’ Opposition to Motion for Class

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 2 of 10
Certification). There are still an insufficient number of UACs alleging denials of rights to access abortions—the claims plaintiffs bring in this case—to establish numerosity. Also, the stories of the three named plaintiffs reveal that each UAC presents different programmatic questions (and answers), which destroys commonality and typicality. Those questions (and answers) are dictated by the UAC’s age, the readiness of an available sponsor, the UAC’s stage of pregnancy, the availability or involvement of the UAC’s parents, the presence of a guardian ad litem, and the potentially relevant state law. And the other prerequisites for class certification under Federal of Civil Procedure 23 also remain lacking. Plaintiffs’ request should be denied.
In no event, however, should the Court certify a class and order notice of this case to all pregnant minors in ORR custody. Such an order would be overbroad and patently inappropriate given the tiny fraction of pregnant UACs who have preliminarily inquired about abortions, the even tinier fraction who have requested abortions, and the lack of any evidence that class counsel properly represents the interests of such a large and diffuse group in this Court. See ECF No. 531 ¶ 5. Moreover, given the vulnerability of this population, significant privacy interests, and the fact that class procedures do not account for the need of a guardian ad litem to represent a child’s interest before this Court, this Court should not allow plaintiffs’ counsel to reach out to the UAC’s individually or provide a minor’s contact information to plaintiffs’ counsel.
STANDARD Courts generally reject certification of a class before the thorough Rule 23 class certification is undertaken. See Berge v. United States, 949 F. Supp. 2d 36, 49 (D.D.C. 2013) (citing Fed. R. Civ. P. 23 Advisory Committee Notes 2003 Amendments (“The provision that a class certification ‘may be conditional’ is deleted. A court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.”)).
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Even those courts that permit provisional certification require that a plaintiff satisfy all the requirements of class certification under Rule 23. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 179– 80 (D.D.C. 2015) (citing Berge v. United States, 949 F. Supp. 2d 36, 49 (D.D.C. 2013)); see Fed. R. Civ. P. 23 Advisory Committee Notes 2003 Amendments. The requirements of Rule 23(a) are: (1) “that the class [be] so numerous that joinder of all members is impractical” (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the named plaintiffs are typical of the class (“typicality”); and (4) the named plaintiffs will fairly and adequately protect the interests of the class (“adequacy”). Fed. R. Civ. P. 23(a). The proposed class must also qualify under Rule 23(b)(1), (2), or (3). See Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994).
ARGUMENT I. Defendants Never Stated That Jane Doe Was The Only Pregnant UAC Who
Had or Would Request an Abortion. As an initial matter, contrary to Plaintiff’s claims, Defendants’ Opposition to Plaintiff’s Motion for Class Certification, ECF No. 53, did not suggest that Ms. Doe was or would be the only pregnant UAC in ORR custody, nor did it suggest that Ms. Doe’s was the only scenario in which such claims were likely to arise. To the contrary, Defendants indicated that 18 of the 420 pregnant UACs in ORR custody during fiscal year 2017 had made a preliminary inquiry about an abortion, and provided the various dispositions of those requests. ECF No. 53 at 5-6. Defendants’ argument was not that Ms. Doe’s case was the only one possible, but rather that she presented a “very rare case,” ECF No. 53 at 22, and that Plaintiffs had failed to identify a similarly situated minor. Id. Neither assertion is remotely undermined by the identification of one more pregnant minor, Jane Poe, in materially different circumstances than Ms. Doe, and one woman who claimed to be a minor but is not, Jane Roe.
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Defendants recognized that “some future putative class members might seek such access”
to an abortion, but argued that “they would invariably diverge in age and have different medical
and psychological histories and presentations, familial situations, abilities and desire to
voluntarily depart the United States and opportunities for expeditious release to sponsors” and
“would be physically present in different states with different abortion laws, and may be in
different phases of judicial proceedings to bypass parental notification or consent requirements.”
ECF No. 53 at 3. This prediction was borne out by the subsequent identification of Ms. Roe and
Ms. Poe, who differed from each other and Ms. Doe in numerous respects, such as age, length of
pregnancy, potential to obtain a sponsor, and the state laws which may be relevant to their ability to obtain abortion services. See ECF No. 66 at 3-4, 8; ECF No. 84 at 2.1
II. Class Certification Is Still Unwarranted.
Federal Rule of Civil Procedure 23(a) requires the named Plaintiffs to establish
numerosity, commonality, typicality, and adequate representation in order to establish that they
are appropriate representatives of the class whose claims they wish to litigate. Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 349 (2011). The identification of Jane Poe—another minor who
was not presented as a putative class representative in the Amended Complaint, ECF No. 63, and
1 Moreover, Defendants had no obligation to provide notice to Plaintiffs’ counsel of any UAC’s request for an abortion because no class has been certified. Absent class certification, Plaintiffs’ counsel has no attorney-client relationship with any of the unnamed UACs in their putative class, and none of the notification provisions Plaintiffs now request were or are in place. See Palumbo v. Tele-Commc’ns, Inc., 157 F.R.D. 129, 133 (D.D.C. 1994) (“[I]n certifying a class action, the Court confers on absent persons the status of litigants and creates an attorney-client relationship between those persons[.]”) (emphasis added). After all, the point of requiring the Rule 23 inquiry preceding certification—including determining the contours of a class and that proffered class representatives and counsel are adequate to represent the interests of the class—is so that a court can ensure certification is appropriate before implementing class procedural requirements that will affect the rights of unnamed members. See Pate v. United States, 328 F. Supp. 2d 62, 69 (D.D.C. 2004) (citing Fed. R. Civ. P. 23(a)); Palumbo, 157 F.R.D. at 133 (“[T]he Court has an obligation . . . to assure that all interests, including those of as yet unnamed plaintiffs are adequately represented[.]”).
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Plaintiffs’ Supplemental Memorandum Regarding Additional Class Representative in Support of Plaintiffs’ Motion for Class Certification, ECF No. 65—does not increase the size of the putative class enough to demonstrate numerosity. See generally ECF No. 53.
The 18 UACs requesting abortions in fiscal year 2017 represent a small fraction of the 420 pregnant UACs in ORR custody that year. ECF No. 53-1 ¶ 5. The vast majority of pregnant UACs ultimately chose not to request an abortion and are thus not potential class members. But Plaintiffs still fall far short of a substantial enough number to support class certification even assuming that all 18 of those minors could be treated as members of a potential class—which would not be appropriate given that each presents their own different circumstances whereby 11 obtained abortions without court intervention, five changed their minds, and two were released from ORR custody to sponsors without the need for ORR to facilitate abortion services. Id. Adding Ms. Roe and Ms. Poe does not change this conclusion.2 See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986) (explaining that “while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors”) (internal punctuation omitted). But, in fact, none of those individuals is a potential member of a class seeking prospective relief, because none is currently requesting an abortion.
Second, the named Plaintiffs are not adequate class representatives. Poe seeks only individual relief in the Amended Complaint. See ECF No. 63. As with Ms. Doe, Ms. Poe obtained an abortion, mooting out her prospective claims. See ECF No. 53 at 6, No. 73. Ms. Roe is not a minor and is no longer in ORR custody. According to news reports, Ms. Roe has
2 Jane Roe was not in fact a minor and therefore was transferred to the custody of the Department of Homeland Security, where she was released on her own recognizance and then, we understand, obtained an abortion. ECF No. 84 at 2. She falls outside the scope of the putative class and her claim is moot in any event.
5

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 6 of 10
also obtained an abortion, see http://www.latimes.com/politics/la-na-pol-abortion-trump-
migrant-20171221-story.html, which makes her an inadequate representative for three reasons:
she is an adul, she is not in ORR custody, and she has already had an abortion. See Genesis
Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2016). Given that named Plaintiffs no longer
have a personal interest in obtaining release from ORR custody to obtain an abortion, and no
class has been certified, Plaintiffs’ claims for prospective relief are moot. See Bd. of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam).3 Further, named Plaintiffs would be
inadequate representatives for any future UACs who might claim that ORR is refusing to
facilitate abortion services.
Third, Plaintiffs still fail to show commonality and typicality on issues relevant to issuing
relief. Comparing the claims of the three plaintiffs here—Ms. Doe, Ms. Roe, and Ms. Poe—
illustrates this fact. Their requests for abortion services were conditioned on circumstances that
vary widely between them, and would also vary across the putative class. In order to show
commonality, “what matters . . . is not the raising of common ‘questions'—even in droves—but,
rather the capacity of a classwide proceeding to generate common answers apt to drive the
3 As Defendants intend to argue in their motion to dismiss, Plaintiffs’ prospective claims should be dismissed as moot. A putative class action, or particular claims within it, generally will become moot once the named plaintiff’s claims no longer present a live controversy. See Jacobs, 420 U.S. at 129; see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013) (A class action that has not been certified, or particular claims within it, generally will become moot once the named plaintiff’s claims no longer present a live controversy.). Plaintiffs assert that ORR’s policy puts an unconstitutional obstacle in the path of unaccompanied minors who seek an elective abortion. ECF No. 83 at 15-16, ¶¶ 55-63. However, Ms. Doe, Ms. Roe, and Ms. Poe have undergone their requested abortions. ECF No. 94 at 1; http://www.latimes.com/politics/la-na-pol-abortion-trump-migrant-20171221-story.html. Further, before HHS had entered any decision regarding Ms. Roe’s request for an abortion, Ms. Roe was found not to be a minor, and her custody was transferred to DHS, which immediately released her on her own recognizance. Thus, Ms. Doe, Ms. Roe, and Ms. Poe no longer allege a live case or controversy concerning Plaintiffs’ prospective challenge to Defendants’ alleged policy regarding facilitation of abortion.
6

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 7 of 10
resolution of the litigation.” Wal-Mart Stores, 564 U.S. at 350 (internal quotation omitted).
Further, “commonality is established by a common issue the resolution of which will advance
the litigation, but is lacking where the case will turn on a series of individualized inquiries.”
Disability Rights Council of Greater Washington v. WMATA, 239 F.R.D. 9, 26 (D.D.C. 2006)
(quoting Love v. Johanns, 439 F.3d 723, 730 (D.C. Cir. 2006) (internal quotations and citations
omitted). The claims of the three plaintiffs here—Ms. Doe, Ms. Roe, and Ms. Poe—were
conditioned on circumstances that vary widely between them, and would also vary across the
putative class. Ms. Doe, for example, was located in a state requiring judicial bypass for minors
unable to obtain parental consent. See ECF No. 30 ¶ 4. Ms. Poe was located in a state without
any judicial bypass requirement. See ECF No. 66 at 8. Ms. Doe’s guardian ad litem “agreed to
transport her to the abortion facility.” ECF No. 30 ¶ 10. Ms. Poe lacked a guardian ad litem or
sponsor and thus requires governmental-contract shelter staff to transport her for an abortion. ECF No. 66 at 4; ECF No. 73 ¶ 14.4 While an expedited search for a sponsor was underway for
Ms. Doe, ECF No. 10-1 ¶ 21, Ms. Roe had already identified a U.S. citizen family member who
had already applied to serve as her sponsor, ECF No. 66-1 ¶ 4. And, of course, Ms. Roe turned
out not to be a minor at all, presenting an entirely different set of circumstances regarding the
4 Having a guardian ad litem to represent his or her legal interests is another critical fact that distinguishes the cases of the named Plaintiffs, as explained above, as well as potential class members. See Fed. R. Civ. P. 17(c). “State law generally governs an individual’s capacity to represent a minor or incompetent in federal court.” Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 86 (1st Cir. 2010) (citing Fed. R. Civ. P. 17(b)(3)). In most jurisdictions, minors lack capacity to sue on their own and require an appropriate relative or guardian or a court-appointed guardian ad litem to sue on their behalf. See, e.g., Doe by Fein v. D.C., 93 F.3d 861, 885 (D.C. Cir. 1996) (Rogers, J., concurring in part and dissenting in part) (citing Dye by Dye v. Fremont Cty. Sch. Dist. No. 24, 820 P.2d 982, 985 (Wyo. 1991) (“An unemancipated minor, by himself, has no procedural capacity to sue or be sued.)); Ater v. Follrod, 238 F. Supp. 2d 928, 938 n.4 (S.D. Ohio 2002) (“Since minors have no standing to sue prior to reaching the age of majority, they must sue through a parent or guardian....”). Alien minors without parents or legal guardians and who lack guardians ad litem would lack the capacity to serve as plaintiffs or class representatives.
7

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 8 of 10
obligation and opportunity of ORR to determine an alien’s age prior to facilitating a requested abortion. These considerations affect the constitutionality analysis for the individual UACs, indicating that there would be different “answers” to the allegedly common claim they bring against ORR’s action, and thus rendering commonality lacking. See Wal-Mart Stores, 564 U.S. at 350.
Viability is also a dispositive legal distinction among potential Plaintiffs’ claims because the undue-burden framework applies only before a fetus is viable. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 860 (1992). While Defendants do not concede that the undue burden framework applies here, even if it did, UACs who do not request abortions prior to viability have substantially different legal rights with regard to abortion. See Casey, 505 U.S. at 860 (reaffirming the constitutionality of restrictions on access to abortion after fetal viability, which at the time occurred at 23 or 24 weeks). Ms. Doe was approximately 15 weeks pregnant at the time of the court’s order—still significantly prior to the point of viability. ECF 30 ¶ 12. See Casey, 505 U.S. at 860. However, Ms. Poe did not finally conclude that she wanted an abortion until she was at a more advanced stage of her pregnancy. See ECF No. 73 ¶ 8.5
These different factual circumstances of the UACs identified in this case demonstrate why resolution of any more of these claims in an undifferentiated, generalized fashion is impossible. See Disability Rights Council of Greater Washington, 239 F.R.D. at 26. They also show how a single, general injunctive remedy would be inappropriate. See Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would
5 While Plaintiffs claim that Defendants’ prevented Ms. Poe from obtaining an abortion earlier, Ms. Poe in fact determined to carry her pregnancy to term as of December 4, 2017, and did not change her mind again until more recently. See ECF No. 66-1 at ¶ 5.
8

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 9 of 10
provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart Stores, 564 U.S. at 360. Here, a single injunction or declaration could not address the rights of class members who were both pre- and post-viability. Further, each putative class member would require an individual determination and order speaking to the specific circumstances of her state of pregnancy, the laws and procedures available in the state where she is located, the timing permitted for ORR to find a sponsor or determine the minor’s age, and the necessary arrangements that must be made with third parties to provide transportation to receive abortion services. See, e.g., ECF No. 73 ¶¶ 7, 14. No single court order can address those different circumstances and ORR’s congressionally authorized role in making care decisions.
Finally, class certification (provisional or otherwise) and notice of all pregnant UACs would be particularly inappropriate given the vulnerable population at issue and the lack of a guardian ad litem for those minors, see supra n.5. Plaintiffs offer no persuasive reason why the class must include notice of this lawsuit to all pregnant UACs in ORR custody, nor why Plaintiffs’ counsel should be provided identification or contact information for any UACs who have not requested their services. As explained, only a small fraction of pregnant UACs in ORR’s custody in the past year (18 of 420, or 4.3%) requested abortions. See ECF No. 53-1 ¶ 5. And several of those UACs ultimately chose not to obtain such services. Defendants cannot possibly impose an undue burden on individuals who do not request such services. And there is no reason or justification for requiring Defendants to notify pregnant UACs of this lawsuit or their ability to contact class counsel if they have not requested abortion services. In no event,
9

Case 1:17-cv-02122-TSC Document 98 Filed 01/02/18 Page 10 of 10

given the privacy interests at stake, should Defendants be required to provide the minor’s contact

information to Plaintiffs’ counsel unless the minor has requested to consult with them.

CONCLUSION

For the foregoing reasons, as well as those provided in Defendants’ Opposition to Class

Certification, ECF No. 53, Plaintiffs’ Motion for an Order Requiring Notice to, or Regarding,

Additional Class Members and Request to Shorten Defendants’ Time in Which to Respond, ECF

No. 90, should be denied.

Dated: January 2, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

AUGUST E. FLENTJE Special Counsel

ERNESTO H. MOLINA Deputy Director

BY: /s/ Joseph A. Darrow JOSEPH A. DARROW Trial Attorney Office of Immigration Litigation-DCS Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 598-2445 Fax: (202) 305-7000 Joseph.A.Darrow@usdoj.gov

Attorneys for Defendants

10

 
 No. 17-654
In the Supreme Court of the United States
ERIC D. HARGAN, ACTING SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF AUTHORITIES

Cases:

Page

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013)....................................................... 5
Arave v. Hoffman, 552 U.S. 117 (2008) ................................. 3 Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ................................................................. 2 Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66
(2013) ...................................................................................... 7 Glossip v. Gross, 135 S. Ct. 2726 (2015) ................................ 5 Harris v. McRae, 448 U.S. 297 (1980) ................................... 5 Kingdomware Technologies, Inc. v. United States,
136 S. Ct. 1969 (2016) ........................................................... 6 NASA v. Nelson, 562 U.S. 134 (2011).................................... 5 Sampson v. Murray, 415 U.S. 61 (1974) ............................... 4 Snyder, In re, 472 U.S. 634 (1985) ......................................... 8 U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) ....... 6 United States v. Munsingwear, Inc., 340 U.S. 36
(1950) .................................................................................. 3, 7

Statute and rules:
6 U.S.C. 279 .............................................................................. 5 Fed. R. App. P. 46.................................................................... 8 Sup. Ct. R. 8.2 ...................................................................... 2, 8

Miscellaneous:
2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering (2015)................................................................ 10
Model Rules of Prof ’l Conduct (2017): Rule 4.1............................................................................... 9 Rule 4.1 cmt. 1 ................................................................... 9 Rule 8.4(c) .......................................................................... 9

(I)

II

Miscellaneous—Continued:

Page

Restatement (Third) of the Law Governing Lawyers (1998) ...................................................................................... 9

In the Supreme Court of the United States
No. 17-654 ERIC D. HARGAN, ACTING SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL., PETITIONERS v.
ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
Respondent’s brief in opposition is most remarkable for what it does not say. Respondent does not dispute that, after the lower courts ruled late in the afternoon of Tuesday, October 24, Ms. Doe’s representatives told the government that Ms. Doe would receive counseling from a new doctor on the morning of October 25, with the abortion to follow on October 26; and that, in reliance on those representations, the government informed respondent’s counsel it would file a stay application the morning of October 25, rather than late at night on October 24. Respondent is noticeably silent on what happened next. She does not deny that, after the government’s notice, Ms. Doe’s representatives secured the services of the original doctor and changed the na-
(1)

2
ture of Ms. Doe’s appointment without telling the government.1 Nor does respondent deny that these actions were a deliberate effort to prevent this Court’s review. Respondent contends only that, as a legal matter, the conduct should carry no consequences, either with respect to vacating the court of appeals’ judgment or disciplining her attorneys. That is incorrect.
First, this is a classic case for vacatur of a decision that was mooted by respondent’s conduct on the way to this Court, “ ‘clear[ing] the path for future relitigation’ by eliminating a judgment the loser was stopped from opposing on direct review.” Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) (citation omitted). The decision issued by the divided en banc court on an important question of constitutional law plainly would have warranted this Court’s review, but for the actions of Ms. Doe’s representatives. And Ms. Doe’s claims for prospective relief became moot when she underwent an abortion. The potential legal consequences to the government of leaving in place the court of appeals’ erroneous decision justify this Court’s intervention.
Second, this Court historically has been its own judge of whether conduct is “unbecoming a member of [its] Bar,” Sup. Ct. R. 8.2, and the conduct here speaks for itself. The Model Rules and ethical principles governing the legal profession, however, lead to the same conclusion. Ms. Doe’s representatives may have been free to say nothing about the timing of her procedure. But they could not make repeated representations to
1 Although respondent does not explain precisely what happened during the night of October 24 and early morning of October 25, she does not dispute that her counsel were involved or that they were aware of the earlier representations made by Ms. Doe’s attorney ad litem and guardian ad litem.

3
the government (and the courts) about that procedure’s timing, know that the government was relying on those statements, act to render the statements false, and then say nothing to correct the falsehood. That is not conduct becoming members of the Bar of this Court.
1. Respondent does not dispute that when an appeal becomes moot “while on its way [to this Court],” the established practice of this Court is to “vacate the judgment below and remand with a direction to dismiss,” at least when the appeal otherwise would have warranted further review. United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); see Pet. 20, 23 n.4; see also Arave v. Hoffman, 552 U.S. 117, 118-119 (2008) (per curiam) (following the practice where not every claim in the case had become moot). Respondent’s arguments for not following that practice here lack merit.
a. Respondent contends (Br. in Opp. 13-14) that the decision below would not have “warranted this Court’s review,” because the en banc court of appeals resolved only the government’s stay motion, not “the merits of Ms. Doe’s constitutional claim.” That contention is incorrect for two reasons. First, after denying the government’s request for a stay, the court remanded the entire case to the district court for further proceedings. Pet. App. 19a. In so doing, the court clearly considered itself to have resolved the entire appeal by effectively affirming the district court’s temporary restraining order (TRO). If the court had resolved only the government’s motion for a stay pending appeal, the appeal would have remained before the court for a resolution of the merits.2 Second, the en banc court denied a stay
2 Although TROs are generally not appealable, the court of appeals correctly concluded that the district court’s order was “more akin to preliminary injunctive relief and [wa]s therefore appealable

4
for “substantially” the reasons set forth in Judge Millett’s panel statement, ibid., which addressed at length the constitutional question, see id. at 7a-17a. By adopting Judge Millett’s statement, the en banc majority took a position on the merits, and that is exactly how the dissenters understood it. See id. at 54a (Kavanaugh, J., dissenting) (“Today’s majority decision * * * is ultimately based on a constitutional principle as novel as it is wrong.”).
Because respondent misunderstands what the en banc court decided, she similarly misunderstands (Br. in Opp. 15) what question would have been presented for this Court’s review. Absent the conduct of Ms. Doe’s representatives, the government would have sought an emergency stay from this Court, pending a petition for a writ of certiorari that presented the constitutional question—i.e., whether an unaccompanied alien minor may require the government to facilitate an elective abortion when the minor may leave the government’s custody by requesting voluntary departure or identifying a suitable sponsor. See Pet. 17-18. Respondent’s contention (Br. in Opp. 15-16) that the constitutional question would not have warranted this Court’s review ignores its obvious legal and practical significance and the fact that the court of appeals considered it en banc and was deeply divided over it. See Emergency Pet. for Reh’g En Banc 12 (urging rehearing en banc based on the “exceptional importance” of the issues presented).
In seeming recognition that the merits would have been presented here, respondent addresses them. See Br. in Opp. 15-17. She acknowledges that, “although government may not place obstacles in the path of a
under 28 U.S.C. § 1292(a)(1).” Pet. App. 19a n.1 (citing Sampson v. Murray, 415 U.S. 61, 86 n.58 (1974)).

5
woman’s exercise of her freedom of choice, it need not remove those not of its own creation.” Harris v. McRae, 448 U.S. 297, 315-316 (1980). Here, Ms. Doe may take steps to end her federal custody by requesting voluntary departure or by identifying a suitable sponsor. But until she does—unlike for adults in the custody of Immigration and Customs Enforcement or the Bureau of Prisons—the Director of the Office of Refugee Resettlement of the Department of Health and Human Services (HHS) is charged by Congress with overseeing Ms. Doe’s care and custody.3 See 6 U.S.C. 279. In that circumstance, the government should not be required to facilitate an abortion, whatever the level of time, attention, or resources it would have to devote. The en banc majority’s contrary conclusion “represents a radical extension of the Supreme Court’s abortion jurisprudence.” Pet. App. 54a (Kavanaugh, J., dissenting).
Finally, respondent argues (Br. in Opp. 17) that the emergency interlocutory nature of the decision below would have counseled against further review. But this Court reviews interlocutory decisions that turn on the resolution of important legal issues. See, e.g., Glossip v. Gross, 135 S. Ct. 2726 (2015); Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013); NASA v. Nelson, 562 U.S. 134 (2011). That course would have been particularly appropriate here, given that the “interlocutory” order granted Ms. Doe full relief on the relevant claims. As for the emergency posture, the en banc majority set aside the panel’s modest, unpublished order and replaced it with a decision of constitutional law
3 At the time that Ms. Doe underwent an abortion, HHS believed it had identified a potentially suitable sponsor. Pet. 6. Ultimately, however, the individual chose not to apply.

6
in less than 48 hours, without oral argument, and after requiring the government to respond to the rehearing petition literally overnight. Those circumstances would have been more reason, not less, for further review. See Pet. App. 63a (Kavanaugh, J., dissenting).
b. Respondent also contends that Ms. Doe’s claims for prospective relief are not moot because they “fall into established exceptions to mootness.” Br. in Opp. 18; see id. at 17-20. As an initial matter, Ms. Doe’s claims regarding access to abortion are not “capable of repetition yet evading review.” Id. at 19. That exception applies only where “(1) ‘the challenged action is in its duration too short to be fully litigated prior to cessation or expiration,’ and (2) ‘there is a reasonable expectation that the same complaining party will be subject to the same action again.’ ” Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (emphasis added) (brackets and citation omitted). Here, Ms. Doe— who will turn 18 in January—does not argue that she has a reasonable expectation of becoming pregnant again and requiring another abortion while in HHS custody.
Nor are Ms. Doe’s injunctive claims saved from mootness because she filed this case as a putative class action. A class claim can survive after an individual named plaintiff ’s claim has become moot if the class is certified before the individual claim is mooted. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980). Here, however, respondent filed a motion for class certification on October 18, and the district court had yet to rule when Ms. Doe’s individual claim became moot on October 24. Pet. 19, 25. Respondent therefore contends (Br. in Opp. 19) that Ms. Doe’s putative class claim is not moot because it is “inherently transitory.” But that exception applies only where a claim is so fleeting that

7
“no plaintiff [will] possess[] a personal stake in the suit long enough” to obtain a decision on class certification. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013). As the government has explained (Pet. 26) (and respondent does not dispute), it is far from clear that the district court could not have ruled on respondent’s motion for certification before Ms. Doe’s interest would have expired in the ordinary course—much less that “no plaintiff ” in the future would be able to litigate a challenge through a class-certification decision. 569 U.S. at 76.
c. Finally, respondent erroneously contends that the court of appeals’ decision will not have any “legal consequences.” Br. in Opp. 21-22 (citation omitted). To be clear, we agree that the decision neither establishes law of the case nor has any preclusive effect. See id. at 21. But the en banc court’s order is a published decision effectively affirming the district court’s order that the government immediately facilitate Ms. Doe’s obtaining of an elective abortion. Absent vacatur, the decision will be binding within that circuit with respect to future requests for similar preliminary relief, absent any material factual differences,4 and it plainly will have significant influence on permanent relief in this case and others. These are legal consequences that the government should not, in fairness, be forced to suffer. Munsingwear, 340 U.S. at 40-41.
2. With respect to disciplinary action, respondent does not dispute any of the key facts: (i) her counsel indicated to the government and the courts that the doctor available to Ms. Doe during the week of October 23
4 The district court already has relied on the decision to afford similar relief to two additional aliens in HHS custody. See Stay Appl. Addendum 144.

8
was not the doctor who had provided her prior counseling (and thus the new doctor would have to wait at least 24 hours after counseling to perform the abortion under Texas law); (ii) Ms. Doe’s representatives expressly told the government that, when she did not receive counseling from the new doctor on Tuesday, October 24, she would not be able to undergo an abortion until Thursday, October 26; (iii) respondent’s counsel knew that the government was relying on those representations when it delayed seeking emergency relief from this Court overnight on October 24; (iv) sometime after the government provided notice of its intent to file on the morning of October 25, Ms. Doe’s representatives secured the services of the original doctor; and (v) they made no effort to correct their earlier statements.
Under Rule 8.2, this Court has the authority to “take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar.” That standard is not tied to any State’s ethical code or the Model Rules. See In re Snyder, 472 U.S. 634, 645 n.6 (1985). Rather, “ ‘conduct unbecoming a member of the bar’ is conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice.” Id. at 645 (interpreting the same language in Fed. R. App. P. 46). If respondent’s counsel knowingly allowed the government to rely on statements that either respondent’s counsel or Ms. Doe’s ad litems deliberately rendered false, such conduct is fairly described as “inimical to the administration of justice.”
The Model Rules lead to the same conclusion. Rule 4.1 provides that, “[i]n the course of representing a client a lawyer shall not knowingly * * * make a false

9
statement of material fact or law to a third person,” Model Rules of Prof ’l Conduct R. 4.1 (2017), and shall not, at any time, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” Model Rules of Prof ’l Conduct R. 8.4(c) (2017). Although a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts,” misrepresentations can occur through “omissions that are the equivalent of affirmative false statements.” Model Rules of Prof ’l Conduct R. 4.1 cmt. 1 (2017). Even when a lawyer makes a representation he reasonably believes is true when made, an “obligation to disclose * * * ordinarily arises” if the lawyer subsequently discovers the statement to be false. Restatement (Third) of the Law Governing Lawyers § 98 cmt. d (1998). Respondent points to no legitimate reason why these basic principles should not apply here.
Respondent contends (Br. in Opp. 30) the government should have obtained a “clear commitment” that Ms. Doe would not obtain an abortion procedure before the government sought a stay on the morning of October 25. Respondent’s contention both ignores critical facts and is legally irrelevant. First, government counsel asked to be kept informed of the timing of Ms. Doe’s procedure, and in context the response—“[a]s soon as we understand the clinic’s schedule tomorrow we will let you know”—indicated that respondent’s counsel would keep the government informed as to the timing of the procedure, not some mundane fact like what hours the clinic would be open. Pet. 13, 27. Second, respondent does not dispute that Ms. Doe’s attorney ad litem told the government an abortion could not take place until October 26—a representation that could not have been clearer. Pet. 13. Third, after the government informed

10
respondent’s counsel of its intentions, one of respondent’s attorneys expressed relief that he would not need to “check [his] email at 2 a.m.,” Resp. Ex. 1 (lodged with the Court), confirming that he knew the government was relying on his co-counsel’s representations about the timing of the abortion. Even in the absence of a “direct inquiry” from opposing counsel, an attorney’s silence can be equivalent to a misleading statement where it is “obvious that [the opposing party] [i]s acting under a misapprehension,” 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 40.04, at 40-13 (2015) (Hazard); see id. § 40.03, at 40-10, particularly where it is the attorney’s own conduct that created the misimpression.
Respondent insists that her counsel had an obligation “zealously to protect and pursue [her] legitimate interests” and to maintain client confidentiality. Br. in Opp. 31 & n.18 (citation omitted). But “Model Rule 4.1(a) is not qualified or ‘trumped’ by reference to the confidentiality principle set forth in Rule 1.6.” Hazard § 40.03, at 40-12; see id. § 40.03, at 40-10 (The “view that confidentiality is absolute” is “discredited,” “goes too far, and is contrary to * * * the law of lawyering.”). To be clear, the government is not arguing that respondent’s counsel had “a duty to forbear from effectuating” the district court’s amended TRO as rapidly as possible. Br. in Opp. 30. Rather, they had a duty not to inform the government (and otherwise lead the government to believe) that the court’s order could not be effectuated before October 26; know that the government was relying on those representations; and then actively work to render those representations false in order to prevent this Court’s review.

11
To take an analogous example, consider if government counsel informed opposing counsel that the unavailability of a particular drug would prevent the government from carrying out an execution until some future date, but after learning that the prisoner planned to file an emergency stay application, government counsel undertook extraordinary efforts to obtain the drug and to carry out the execution sooner without notice to opposing counsel. The conduct would be no more becoming a member of the Bar of this Court because the government’s statements to counsel were accurate when made, see Br. in Opp. 23; the government never “forsw[o]r[e]” a different course of action, see id. at 25; and nothing prevented counsel from extracting more explicit commitments rather than taking the government at its word, see id. at 29. Members of the Bar of this Court, particularly in the context of emergency proceedings, often rely on—and should be safe in relying on—the duty of counsel to update statements that have become materially false, let alone as a result of counsel’s own conduct.
* * * * *

12

For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded to the court of appeals with instructions to remand to the district court for dismissal of all of Ms. Doe’s claims for prospective relief regarding pregnant unaccompanied minors.
Respectfully submitted.

DECEMBER 2017

NOEL J. FRANCISCO Solicitor General

 
 Case 1:17-cv-02122-TSC Document 94 Filed 12/28/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ EMERGENCY MOTION FOR EXTENSION OF TRO FOR JANE ROE AND JANE POE

This Court’s Temporary Restraining Order issued on December 18, 2017 (ECF No. 73),

expires on January 1, 2018. Plaintiffs respectfully ask this Court to extend paragraphs 3, 4, and 5

of the TRO, until such time as the Court rules on Plaintiffs’ Motion for Preliminary Injunction

(ECF No. 5). Plaintiffs also ask that this Court shorten Defendants’ response time to this motion

to allow this Court to issue an order before the TRO expires on January 1, 2018. Defendants’

official capacity counsel have told Plaintiffs’ counsel that they oppose this motion. Plaintiffs’

counsel also notified Defendants’ personal capacity attorneys of this request, but the relief sought

in this motion is limited to Defendants’ official capacity.

Plaintiffs request the extension of the TRO for the same reasons Plaintiffs sought the

TRO (ECF No. 63), specifically to ensure that Defendants do not retaliate against Ms. Roe and

Ms. Poe for having obtained an abortion; to prevent Defendants from revealing Ms. Roe and Ms.

Poe’s abortion decisions to anyone in conjunction with their real names; and preventing

Defendants from retaliating against the shelters where Ms. Roe and Ms. Poe currently reside or

previously resided.

1

Case 1:17-cv-02122-TSC Document 94 Filed 12/28/17 Page 2 of 3

Ensuring that Ms. Poe’s abortion decision is confidential is particularly crucial given that Defendants have indicated that her mother and her potential sponsor threatened to physically harm her if she had an abortion. See Notice of Filing Redacted ORR Documents, Attachment 1 (ECF No. 91). As for Ms. Roe, even though she is no longer in ORR’s custody, ORR possesses the information about her abortion decision and could reveal it to her family members. Moreover, as detailed in the briefing related to Defendants’ desire to reveal Ms. Doe’s abortion decision (ECF Nos. 45, 52, 55), absent a court order, Defendants likely intend to reveal Ms. Roe and Ms. Poe’s abortion decision to others.
For all of these reasons, Plaintiffs’ respectfully request an order extending the TRO.

Date: December 28, 2017

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW
2

Case 1:17-cv-02122-TSC Document 94 Filed 12/28/17 Page 3 of 3
Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 mwroe@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
3

 
 Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad

)

litem to unaccompanied minor J.D., on

)

behalf of J.D. and others similarly

)

situated; JANE ROE on behalf of herself and )

others similarly situated; and JANE POE,

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

Civil Action No. 17-cv-02122 (TSC)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR AN EXTENSION OF TRO FOR JANE ROE AND JANE POE
Defendants Eric D. Hargan, Steven Wagner, and Scott Lloyd in their official capacities (“Defendants”) hereby oppose Plaintiffs’ Emergency Motion for an Extension of paragraph 3 of the Court’s December 18, 2017 TRO for Jane Roe (“Ms. Roe”) and Jane Poe (“Ms. Poe”). ECF Nos. 73, 94. Defendants do not oppose extension of paragraphs 4 and 5 of the December 18, 2017 TRO. ECF No. 73.
With regards to Ms. Roe, she is not a minor and therefore has been transferred to the custody of the Department of Homeland Security (“DHS”). She has been since been released on her own recognizance, and is no longer under the jurisdiction of the Office of Refugee Resettlement (“ORR”). ECF No. 84 at 2. Thus, extension of paragraph 3 for Ms. Roe is unnecessary.
With regards to Ms. Poe, she has already disclosed her desire to obtain an abortion to ORR, which operates in loco parentis on Ms. Poe’s behalf. As stated in Defendants’ Motion to

Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 2 of 6
Reconsider (ECF No. 45), filed on November 6, 2017, extending paragraph 3 for Ms. Poe would significantly affect Defendants’ ability to provide her with appropriate medical care and to vet potential sponsors. Accordingly, Defendants respectfully request this Court to either decline to extend paragraph 3 of the December 18, 2017 TRO (ECF No. 73) for Ms. Poe, or amend it to only restrain Defendants from “revealing [Ms. Poe’s] abortion decision, in connection with her name or other information that would reveal her identity, except insofar as necessary to perform their custodial obligations such as providing medical care, emergency care, or identifying and evaluating potential sponsors.”
ARGUMENT I. Ms. Roe is not a minor and no longer under the jurisdiction of ORR.
Ms. Roe, as noted, is not a minor, is no longer in ORR custody, and therefore is not subjected to any purported ORR “policy.” ECF No. 84 at 2. As Ms. Roe is an adult, ORR has no occasion to reveal any of her private information; indeed, Ms. Roe has made no showing that ORR has ever done so for an adult not in its care.
Additionally, Plaintiffs’ concern that Defendants “could reveal [Ms. Roe’s abortion] to family” members is belied by the record. ECF No. 94 at 2. ORR has already indicated that it has not disclosed this information to Ms. Roe’s family, nor does it have any intention of revealing that information. ECF No. 66-1 (Jonathan White Declaration) at ¶ 4). In short, as Ms. Roe is not subject to the jurisdiction of ORR and Plaintiffs’ concern regarding disclosure of her abortion decision to family members is unsubstantiated, this Court should decline to extend paragraph 3 of the December 18, 2017 TRO (ECF No. 73) for Ms. Roe as unnecessary. II. ORR must be able to disclose important personal facts about Ms. Poe to medical
providers and to vet potential sponsors.
2

Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 3 of 6
As a minor under ORR’s care, Ms. Poe’s right to the nondisclosure of her abortion is not unrestricted. Acting in loco parentis, ORR must have the discretion and ability to disclose relevant medical information about Ms. Poe to medical care providers and to vet potential sponsors.1 The Supreme Court has stated that privacy interests do not automatically outweigh the reasonable exercise of the government’s legitimate authorities. See, e.g., Whalen v. Roe, 429 U.S. 589, 600-03 (1977). Here, Congress has directed ORR to take care and custody of unaccompanied minors like Ms. Poe until they can be released to a sponsor. See 8 U.S.C. § 1232(b); see also 6 U.S.C. § 279(b)(1)(B) (ORR must ensure that “the interests of the child are considered in decisions and actions relating to the care” of an unaccompanied minor); cf. Parham v. J.R., 442 U.S. 584, 619 (1979) (“[T]he state agency having custody and control of the child in loco parentis has a duty to consider the best interests of the child . . . .”). The Supreme Court has long recognized “that when a parent or another person has assumed ‘primary responsibility’ for a minor’s well-being, the State may properly enact ‘laws designed to aid discharge of that responsibility.’” Hodgson v. Minn., 497 U.S. 417, 448 (1990) (quoting Ginsberg v. New York, 390 U.S. 629, 639 (1968)). This is because “[t]he State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Id. at 444.
Thus, ORR, acting in loco parentis for Ms. Poe, has the authority to disclose relevant medical information to medical providers and to vet potential sponsors when ORR believes that
1 Defendants’ contend that the disclosure of these facts are critical to the sponsorship process and assist ORR in the placing an individual in a situation where they would not be subjected to harm. This is only further supported in Ms. Poe’s case where her uncle, and potential sponsor, threatened to “beat her” should she obtain an abortion. ECF No. 92-1 at 5. If ORR were not permitted to make appropriate disclosures of Ms. Poe’s history as part of its legitimate investigation of a sponsor’s suitability, ORR might inadvertently release Ms. Poe into an environment that put her at serious risk, which is exactly what the TVPRA is designed to avoid.
3

Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 4 of 6
doing so is in Ms. Poe’s best interests. Here, Ms. Poe already disclosed her desire to obtain an abortion to ORR when she requested that ORR help facilitate her abortion. Now, Ms. Poe, through counsel, now concedes that Ms. Poe has, in fact, obtained an abortion. ECF No. 94 at 1 (“. . . [t]o ensure that Defendants do not retaliate against Ms. Roe and Ms. Poe for having obtained an abortion . . . ”). Ms. Poe provides no legal justification for enjoining ORR from using information she has freely disclosed in the exercise of its custodial responsibilities.
Moreover, Ms. Poe has also disclosed her pregnancy to her parents, that she was considering having an abortion, and it will be obvious in a matter of months that she is no longer pregnant. Because of Ms. Poe’s self-disclosure, her parents may communicate their knowledge of the pregnancy, and the facts surrounding it, to whomever they chose. If the TRO were applied to Ms. Poe’s parents, it would likely constitute a content-based abridgement of their First Amendment rights. See, e.g., Smith v. Daily Mail Pub. Co., 443 U.S. 97, 101-02 (1979) (disclosure of minor’s names lawfully obtained); Oklahoma Pub. Co. v. District Court, 430 U.S. 308, 310 (1977) (injunction against media disclosure of information lawfully obtained); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 558-59 (1976). So too here, given ORR’s custodial relationship with Ms. Poe and Ms. Poe’s self-disclosure to the agency. Here, just as Ms. Poe’s parents are permitted to act based on information lawfully obtained, so, too may ORR. At a minimum, the government, while acting in the place of the parent or as the legal guardian of an unaccompanied minor, does not transgress the rights of a minor in its care by carrying out its important, legitimate custodial responsibilities in a similar manner based on information voluntarily conveyed.
Further, Defendants have proffered legitimate custodial reasons for disclosing Ms. Poe’s abortion information in limited circumstances: primarily to medical providers to ensure proper
4

Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 5 of 6

medical care and to vet prospective sponsors. Neither medical providers nor sponsors (who would take responsibility for future medical care) can be reasonably expected to carry out their functions in the absence of the disclosed information. Additionally, as discussed before with regards to Ms. Doe, these reasons include placing her on the appropriate medical regimen; informing medical personnel in the case of an emergency; and identifying a suitable sponsor. ECF No. 40 Jonathan White (Redacted) Declaration at ¶¶ 5-10. These constitute significant ORR custodial responsibilities that continuation of paragraph 3 of the December 18, 2017 TRO makes even more difficult to carry out.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Plaintiffs’ Emergency Motion for an Extension of

TRO for Jane Roe and Jane Poe, ECF No. 94, should be denied.

Dated: December 29, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

AUGUST E. FLENTJE Special Counsel

ERNESTO H. MOLINA Deputy Director

BY: /s/ Sabatino F. Leo SABATINO F. LEO W. DANIEL SHIEH Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 514-8599 Fax: (202) 616-4975 sabatino.f.leo@usdoj.gov

5

Case 1:17-cv-02122-TSC Document 95 Filed 12/29/17 Page 6 of 6 Attorneys for Defendants
6

 
 Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR EMERGENCY MOTION TO EXTEND THE TRO FOR JANE ROE AND JANE POE

Defendants’ response to Plaintiffs’ Emergency Motion to Extend the TRO for Jane Roe and Jane Poe (ECF No. 95) demonstrates precisely why this Court should extend the TRO.1

Indeed, Defendants affirmatively seek to tell Jane Poe’s parents and potential sponsor about her

abortion, which is stunning given that Ms. Poe’s parents and potential sponsor have threatened to

physically harm her if she obtained an abortion. As for Ms. Roe, it is immaterial that she is no

longer in Defendants’ custody. Defendants still possess confidential information about Ms. Roe,

and they should be restrained from revealing that information to Ms. Roe’s family or anyone

else. Accordingly, for the reasons below, and in Plaintiffs’ opening brief, this Court should

extend the TRO.

I. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that Defendants’ Conduct Violates Jane Roe’s and Jane Poe’s Fifth Amendment Rights.

As this Court has already found, Plaintiffs are “likely to succeed on the merits of their

action.” ECF No. 73. Defendants’ disclosure of Ms. Roe’s and Ms. Poe’s abortion decisions to

third parties, over their objections and without their consent, would violate their right to privacy 1 Notably, Defendants do not oppose extension of paragraphs 4 and 5 of the Court’s order.

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 2 of 7
“in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977). This privacy interest is only heightened here, where the “personal matter” at issue—the decision to have an abortion—is one that is highly sensitive, intimate and emotionally charged. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 766 (1986) (“The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity.”), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992); Planned Parenthood of S. Arizona v. Lawall, 307 F.3d 783, 790 (9th Cir. 2002) (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) for the proposition that the abortion-related information that courts obtain in a judicial bypass proceeding is “sensitive private information . . . worthy of constitutional protection.”). This is no less true for Ms. Roe simply because she is no longer in Defendants’ custody.2 Defendants are in possession of Ms. Roe’s private medical information, and know the identity of her family members. Defendants state that they have no “intention” to reveal Ms. Roe’s abortion decision. Defs.’ Resp. at 2. If that is true, Defendants should have no objection to a court order that memorializes that commitment.
Defendants also make the absurd argument by analogy that a TRO prohibiting a minor’s parents from speaking about their daughter’s abortion would violate the First Amendment. Id. at 4. That is not what is at issue here. Defendants do not possess a First Amendment right to tell others about Ms. Roe’s and Ms. Poe’s abortion decision. See Garcetti v. Ceballos, 547 U.S. 410 (2006). To the contrary, as discussed supra, they are bound by the Constitution—unlike a minor’s parents—to protect Ms. Roe’s and Ms. Poe’s privacy.
Furthermore, Defendants imply that Ms. Poe waived her constitutional right to privacy by
2 As previously stated, Plaintiffs dispute that Ms. Roe is an adult.
2

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 3 of 7
informing her parents of her contemplated abortion or by telling Defendants.3 Id. at 3-4. But that argument has no merit. As to the former, whether Ms. Poe decides to communicate her ultimate decision to have an abortion decision is no business of the federal government. As to the latter, under the policy challenged by Plaintiffs, Ms. Poe was required to tell Defendants she was seeking an abortion in order to obtain permission to obtain one. Defendants’ argument would put minors between a rock and a hard place: they wouldn’t be permitted to obtain abortion if they don’t ask for permission, but if they do ask for permission they have given Defendants carte blanche to tell others about their abortion decision. Such a system would impermissibly condition one constitutional right on giving up another right. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969)
II. Jane Roe and Jane Poe Will Suffer Irreparable Harm If Defendants Are Permitted to Disclose Their Abortion Decision to Third Parties Without Their Consent.
Permitting Defendants to violate Ms. Roe’s and Ms. Poe’s right to privacy by disclosing their abortion decision to others will irreparably harm them. Numerous courts have found that disclosure of the fact that a woman is seeking or has obtained an abortion risks exposing her to serious harm, including harassment, ostracism, rejection and even abuse or violence. See Bellotti v. Baird, 443 U.S. 622, 645 (1979); Thornburgh, 476 U.S. at 767 & n.12; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 897–98 (1992); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 758–59 (1994); Margaret S. v Edwards, 488 F. Supp. 181, 216 (E.D. La. 1980) (threat to privacy of abortion patient is of “impressive dimensions”); Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, No. 1:17-cv-01636-SEB-DML, 2017 WL 2797757, at *13 (S.D. Ind. June 28, 2017) (discussing numerous reasons why a minors may not want legal
3 Plaintiffs do not concede that Ms. Poe told her parents on her volition.
3

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 4 of 7
guardians to be notified of their abortion decisions, including fear of “abuse at the hands of one
or more of their parents”); Lawall, 307 F.3d at 790 (maintaining that “disclosure of [abortion
related] information would cause significant harm.”). This concern is heightened for Ms. Poe,
whose family and potential sponsor have explicitly threatened to harm her if she obtained an
abortion. Defendants’ desire to tell Ms. Poe’s potential sponsor and her parents of her abortion
would cause her harm, and is downright cruel.
III. Defendants’ Interest In Fulfilling Their Custodial Obligations Will Not Be Harmed By Extending the Injunction.
Conversely, the extended injunction imposes no harm on Defendants. That Ms. Roe and
Ms. Poe have now obtained their abortion changes nothing—Defendants have the same interest
in notifying third parties today as they did before the abortion procedure, “namely, none.”
Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012, 1019–20 (D. Idaho 2005)
(preliminarily enjoining law that allowed for notice to a parent after a minor obtained an
emergency abortion). In fact, ORR policies regarding the disclosure of similarly sensitive
information about minors who are over the age of 14 require that the minor’s consent be obtained prior to any disclosure.4
4 See, e.g., ORR Policies and Procedures, Section 8.101 Information Sharing: Requests for UC Case File Information (2013), available at https://www.acf.hhs.gov/orr/resource/requests-foruac-case-file-information (“In addition to a written request, [outside entities, attorneys, or other individuals seeking copies of UC case files, specific information contained in a UC case file, or other confidential information pertaining to a UC] . . . must complete . . . an Authorization for Release of Records . . . [that] must be signed by the UC if the UC is 14 years of age or older.”); ORR Policy Guide, Section 4.10.4 Notification and Access to Attorneys/Legal Representatives, Families, Child Advocates and Sponsors (2015), available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompaniedsection-4#4.10.4 (instructing the care provider to notify the attorney of record of a minor who is over 14 years old of any allegations of sexual abuse or harassment only if that minor authorizes the disclosure); see also Section 3.4.7 Maintaining Health Care Records and Confidentiality, available at https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-3 (“The care provider must have written policies, procedures, and
4

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 5 of 7
In the unlikely event this information is relevant and/or requested by a health care
provider, Ms. Poe—who is 17 years old—is more than capable of providing this information to her health care provider herself.5 Indeed, this is exactly what would be expected of a teenager
who was not in federal custody, and who had the right to consent to the abortion on her own; it
would be incumbent on her—not her parent or legal guardian—to provide her confidential
medical history to her doctors, within the confines of the protected patient-physician relationship.
Nor have Defendants identified any way in which they will be harmed if they are
prohibited from disclosing Ms. Poe’s abortion decision to prospective sponsors. Both common
sense and jurisprudence dictate that if Defendants truly desire to prevent Ms. Poe from being
retaliated against for her abortion decision by her sponsor, there is a simple solution—they
should not divulge her abortion decision to her sponsor. See, e.g., Casey, 505 U.S. at 897–98
(striking down spousal notification requirement because some women fear the consequences of
notifying their husbands about their abortion decision).
CONCLUSION
For all of the reasons stated above, and in Plaintiffs’ opening brief, Plaintiffs’ motion to
practices that protect the confidentiality of [unaccompanied alien children’s] medical information.”). 5 In an effort to assuage Defendants’ alleged concerns regarding emergency care, Plaintiffs would be amenable to further amending the TRO to include a limited exception permitting Defendants to reveal certain information regarding Ms. Poe’s abortion (1) in the event of a medical emergency in which (2) Ms. Poe is, by virtue of an emergency medically condition, rendered unable to communicate this information to the medical provider her self, and only so long as (3) the relevant medical provider to whom the information is to be disclosed certifies in advance of the disclosure that this information is medically necessary to in order to provide adequate care, (4) only such information as is medically necessary to the provision of adequate care is revealed, and (5) this information is revealed only to the requesting medical provider and those working with the requesting medical provider who have a need to know this information in order to provide Ms. Poe with adequate medical care.
5

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 6 of 7

extend the TRO should be granted.

Date: December 30, 2017

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of
6

Case 1:17-cv-02122-TSC Document 96 Filed 12/30/17 Page 7 of 7 Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
7

 
 Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 1 of 28

In the United States District Court for the District of Columbia

Rochelle Garza, as

§

guardian ad litem to

§

unaccompanied minor J.D., §

on behalf of herself and

§

others similarly situated, §

et. al.,

§

§

Plaintiffs,

§

§

v.

§

§

Eric D. Hargan, et al.,

§

§

Defendants.

§

§

Case No. 17-cv-02122-TSC

BRIEF FOR THE STATES OF TEXAS, ARKANSAS, LOUISIANA, MICHIGAN, MISSOURI, NEBRASKA, OHIO, OKLAHOMA, SOUTH CAROLINA, WEST VIRGINIA, AND THE COMMONWEALTH OF KENTUCKY, BY AND THROUGH
GOVERNOR MATTHEW G. BEVIN, AS AMICI CURIAE IN SUPPORT OF DEFENDANTS

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 2 of 28
Table of Contents
Page Table of Contents ..................................................................................................... i
Index of Authorities ................................................................................................ iii
Interest of Amici Curiae........................................................................................... 1
Introduction ............................................................................................................. 3
Argument ................................................................................................................. 4
I. Unlawfully-Present Aliens with Virtually No Connections to the United States Have No Constitutional Right To An Elective Abortion................................................................................. 4
A. The Court Should Apply the Supreme Court’s LongSettled “Substantial Connections” Test, Which Provides That the Degree of Connections to This Country Determines the Degree of Fifth Amendment Rights Accorded to Aliens. ........................................................ 4
1. The Constitutional Rights of Aliens are Determined by a Sliding Scale Based on the Degree of Connections the Alien Has to the Country. ........................ 5
2. Unlawfully-Present Aliens With Virtually No Connections to the Country Lack the Panoply of Affirmative Liberty Rights that Citizens and Lawfully-Present Aliens Possess, Although They Do Have Baseline Procedural Protections and the Right to be Free from Gross Physical Abuse................................. 7
B. The Operative Complaint Confirms that the Aliens At Issue Here Have No “Substantial Connections” to This Country, and Therefore Have No Right to an Elective Abortion......................................................................13
II. The Previous Order Granting a Temporary Restraining Order Should Be Disregarded Because It Failed to Cite the Well-Accepted and Controlling “Substantial Connections” Test. ...................................................................................................15

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 3 of 28
A. The Court Has a Duty to Apply the Correct Law. ...................15 B. The “Substantial Connections” Test Is Widely Cited
and Applied As Controlling. .....................................................16 Conclusion ............................................................................................................. 20 Certificate of Service.............................................................................................. 21
ii

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 4 of 28

Cases:

Index of Authorities

Page(s)

Arizona v. United States, 567 U.S. 387 (2012)........................................................................................ 1, 19
Atamirzayeva v. United States, 524 F.3d 1320 (Fed. Cir. 2008) ..........................................................................16
Castro v. Cabrera, 742 F. 3d 595 (5th Cir. 2014) (No. 13-40017), 2013 WL 8635071) ....... 8, 9, 14, 17
Citizens United v. FEC, 558 U.S. 310 (2010)........................................................................................... 10
Demore v. Kim, 538 U.S. 510 (2003) ................................................................................. 9, 11, 14
Galvan v. Press, 347 U.S. 522 (1954) ........................................................................................... 10
Gonzales v. Carhart, 550 U.S. 124 (2007) ............................................................................................ 1
Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) .......................................................................... 7, 16
Johnson v. Eisentrager, 339 U.S. 763 (1950) ................................................................6, 7, 8, 14, 15, 18, 19
Kleindienst v. Mandel, 408 U.S. 753 (1972)........................................................................................... 10
Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004) ..............................................................................13
Landon v. Plasencia, 459 U.S. 21 (1982)........................................................................................... 6, 8
Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) .............................................................................. 8
Massachusetts v. United States, 333 U.S. 611 (1948) ............................................................................................15

iii

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 5 of 28
Mathews v. Diaz, 426 U.S. 67 (1976)..........................................................................................9, 13
Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam)........................................................................ 4
McDonald v. City of Chicago, 561 U.S. 742 (2010)........................................................................................... 10
Meachum v. Fano, 427 U.S. 215 (1976) ............................................................................................. 4
Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) ............................................................................16
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)........................................................................................... 12
Plyler v. Doe, 457 U.S. 202 (1982) ....................................................................................... 5, 13
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ..................................................................... 12
Sibron v. New York, 392 U.S. 40 (1968) .............................................................................................15
Torres v. Puerto Rico, 442 U.S. 465, 471 n.3 (1979)...............................................................................15
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam) .................................................................... 6
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)............................................................................................15
United States v. Carpio–Leon, 701 F.3d 974 (4th Cir. 2012) ............................................................................. 10
United States v. Flores, 663 F.3d 1022 (8th Cir. 2011) (per curiam) ....................................................... 10
United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012) ...........................................................................16
United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (No. 14-3271), 2015 WL 2064443) ........................................................... 7, 10, 16
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United States v. Portillo–Munoz, 643 F.3d 437 (5th Cir. 2011) ......................................................................... 10, 16
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .................................................................................... passim
United States v. Vilches-Navarrete, 523 F.3d 1 (1st Cir. 2008)...............................................................................9, 16
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ....................................................................................... 12
Winter v. NRDC, 555 U.S. 7 (2008) ................................................................................................ 4
Zadvydas v. Davis, 533 U.S. 678 (2001)......................................................................................5, 7, 9
Other Authorities:
Brief for Appellee, United States v. Kole, 164 F.3d 164 (3d Cir. 1998) (No. 96-5457), 1996 WL 33453512 at *24...........................................................17
Brief for Appellee United States, United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (No. 13-50129), 2013 WL 6221846 at *13-15 ..................................................... 18
Brief for Cross-Appellees and Reply Brief for Appellants, Gutierrez v. Ashcroft, 125 F. App’x. 406 (3d Cir. 2005) (Nos. 034798, 04-1031), 2004 WL 4184747, at *16 ........................................................ 18
Brief for Defendant-Appellee Robert S. Mueller, Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008) (No. 06-4216), 2007 WL 7285642 at * 32-33 ................................................................................................................. 18
Brief for Respondent, Wigglesworth v. I.N.S., 319 F.3d 951 (7th Cir. 2003) (No. 02-1209), 2002 WL 32170294 ..................... 18
Brief for the Respondents in Opposition, Castro v. Dep’t of Homeland Sec., 137 S. Ct. 1581 (2017) (No. 16-812), 2017 WL 1046315, at *17 ...................17
Brief for the United States, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118), 2017 WL 104588 at *35.............................17
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Federal Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for TRO at 13, Pineda-Cruz v. Thompson, No. 5:15-cv-00326 (W.D. Tex. May 7, 2015) ............................................... 10–11
Reply in Support of Appellants’ Brief, Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), 2017 WL 1055525 ................................................17
Transcript of Oral Argument at 17, Jennings v. Rodriguez, No. 15-1204 (U.S. October 3, 2017) ...................................................................17
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Interest of Amici Curiae
Amici curiae are the States of Texas, Arkansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, West Virginia, and the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin.1 The States have an interest in cooperating with the federal government to establish a consistent and correct understanding of the rights of aliens unlawfully present in the United States, as the States “bear[] many of the consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397 (2012). The States also have “a legitimate and substantial interest in preserving and promoting fetal life,” as well as an “interest in promoting respect for human life at all stages in the pregnancy.” Gonzales v. Carhart, 550 U.S. 124, 145, 163 (2007). Local Rule 7(o)(1) provides that “a state may file an amicus curiae brief without the consent of the parties or leave of Court.”
In this case, Plaintiffs seek a temporary restraining order effectively declaring that the U.S. Constitution confers on unlawfully-present aliens the right to an elective abortion that is not medically necessary—even when they have virtually no ties to this country. Until this litigation, no court had ever before recognized such broad rights for unlawfully-present aliens with virtually no connections to the country. If this Court grants Plaintiffs’ request,
1 Neither amici nor counsel received any monetary contributions intended to fund preparing or submitting this brief. No party’s counsel authored this brief in whole or in part.
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there will be no meaningful limit on the constitutional rights an unlawfullypresent alien can invoke simply by attempting to enter this country illegally. Such relief would also contradict the Supreme Court’s longstanding precedent that full Fifth Amendment rights accorded to citizens can only be extended to those aliens who “have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (emphasis added).
Amici thus urge the Court to deny Plaintiffs’ application for a temporary restraining order.
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Introduction
The Constitution does not confer the right to an elective abortion on unlawfully-present aliens with virtually no ties to the country. Under long-settled doctrine, the constitutional rights an alien may invoke depend on the scope of the alien’s ties to this country. It is true that all persons—regardless of immigration status, and regardless of their ties here—have certain cabined constitutional rights, including baseline procedural protections and the right to be free from gross physical abuse. But that does not mean that such unlawfullypresent aliens are accorded the panoply of affirmative liberty rights that citizens and lawfully-present aliens possess.
The States are already spending enormous resources dealing with unlawful immigration. Granting the relief Plaintiffs seek will create a perverse incentive to unlawfully enter the country. This will further add to the substantial burden faced by the governmental entities trying to prevent and deal with unlawful immigration.
The Court should thus deny the application for a temporary restraining order.
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ARGUMENT I. Unlawfully-Present Aliens with Virtually No Connections to the
United States Have No Constitutional Right To An Elective Abortion.
The right Plaintiffs assert does not exist: Unlawfully-present aliens with virtually no connections to the country do not have a constitutional right to an elective abortion. Plaintiffs thus are not entitled to a temporary restraining order. See Winter v. NRDC, 555 U.S. 7, 20 (2008) (preliminary injunctive relief unavailable if the plaintiff cannot establish a likelihood of success on the merits); Mazurek v. Armstrong, 520 U.S. 968, 970 (1997) (per curiam) (same).
A. The Court Should Apply the Supreme Court’s Long-Settled “Substantial Connections” Test, Which Provides That the Degree of Connections to This Country Determines the Degree of Fifth Amendment Rights Accorded to Aliens.
The “initial inquiry” in assessing any due process claim is whether the Constitution protects the right the plaintiff asserts. See, e.g., Meachum v. Fano, 427 U.S. 215, 223-24 (1976). Only after confirming that the right at issue exists should a court move on to whether the government has violated that right. See id. This Court should thus begin its analysis by asking whether the right to an elective abortion recognized by the Supreme Court applies to unlawfully-present aliens with virtually no connections to this country who were apprehended while attempting to cross the border illegally.
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The answer to that question is “plainly—and easily—no.” Garza v. Hargan, 874 F.3d 735, 743 (D.C. Cir. 2017) (en banc) (per curiam) (Henderson, J., dissenting).
1. The Constitutional Rights of Aliens are Determined by a Sliding Scale Based on the Degree of Connections the Alien Has to the Country.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” The Supreme Court has held that unlawfully-present aliens are “persons” protected by the Fifth Amendment. Plyler v. Doe, 457 U.S. 202, 210 (1982). The Court reiterated in 2001 that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).2
But simply because an individual is a “person” covered by the Fifth Amendment, it does not follow that the alien is necessarily “due” the same scope of rights accorded to citizens or lawfully-present aliens. The Supreme Court has held that the rights an alien is “due” depend on the connections that person has established with this country: United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990), applied existing Supreme Court precedent
2 Contrary to the statements in the dissent at the panel stage before the D.C. Circuit, amici did not argue that unlawfully-present aliens are not “persons.”
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and clarified that Plyler’s Fifth Amendment analysis “establish[es] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271 (emphasis added).
Verdugo-Urquidez emerged from the Supreme Court’s bedrock rule that an alien is “accorded a generous and ascending scale of rights as he increases his identity with our society.” Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (emphasis added). In other words, as set out in Eisentrager and explained by Verdugo-Urquidez, an alien’s connections determine the scope of rights the alien is due. See id. As a person develops increasing connections with this country, the person’s constitutional protections expand. E.g., Verdugo-Urquidez, 494 U.S. at 268-69; see also Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (staying injunction of immigration order for aliens “who lack any bona fide relationship with a person or entity in the United States”). Initial lawful entry affords “safe conduct” and confers “certain rights,” which “become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.” Eistentrager, 339 U.S. at 770; see Landon v. Plasencia, 459 U.S. 21, 32 (1982) (alien’s “constitutional status changes” only after he “gains admission to our country and begins to develop the ties that go with permanent residence”).
No decision of the Supreme Court has abrogated that basic Eisentrager/Verdugo-Urquidez framework of a sliding scale of rights based on the
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degree of connections the alien has to the country. In particular, Zadvydas did not alter or undermine Verdugo-Urquidez’s pronouncement that to invoke the full scope of Fifth Amendment rights, an unlawfully-present alien must demonstrate “substantial connections.” See, e.g., Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (applying “significant voluntary connection” test from Verdugo-Urquidez); United States v. Meza-Rodriguez, 798 F.3d 664, 670 (7th Cir. 2015), cert. denied, 136 S. Ct. 1655 (2016) (same). In fact, Zadvydas expressly limited its analysis to “aliens who were admitted to the United States but subsequently ordered removed.” 533 U.S. at 682 (emphasis added). By contrast, “[a]liens who have not yet gained initial admission to this country would present a very different question.” Id.
2. Unlawfully-Present Aliens With Virtually No Connections to the Country Lack the Panoply of Affirmative Liberty Rights that Citizens and Lawfully-Present Aliens Possess, Although They Do Have Baseline Procedural Protections and the Right to be Free from Gross Physical Abuse.
a. The sliding-scale approach set out in Eisentrager and Verdugo-Urquidez recognizes that it is the rare exception where constitutional rights are accorded to unlawfully-present aliens with minimal connections to the country. Under that rare exception, the mere fact of presence in this country—even unlawful presence—does confer certain baseline constitutional rights against egregious harm, but not affirmative liberty rights. And even when certain limited constitutional rights are extended to unlawfully-present aliens, courts routinely hold
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that the full scope of a constitutional provision’s rights do not extend to such aliens.
For example, mere unlawful presence confers a basic right against “gross physical abuse” in this country. Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir. 2014) (citing Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987)). The Constitution protects everyone on U.S. soil, even unlawfully-present aliens with no other ties to this country, against the “wanton or malicious infliction of pain” by governmental officials. Id. The D.C. Circuit’s panel dissent— which the en banc majority “substantially” adopted, 874 F.3d at 736—argued that amici’s position would mean that the aliens and “everyone else here without lawful documentation—including everyone under supervision pending immigration proceedings and all Dreamers—have no constitutional right to bodily integrity in any form (absent criminal conviction).” But that does not follow from amici’s position, and the Supreme Court’s precedents do not lead to that drastic outcome. The “deeply troubling” hypotheticals the panel dissent posited are thus fully resolved by a proper application of the Eisentrager/Verdugo-Urquidez framework.
Under the “ascending scale” of rights articulated in Eisentrager (339 U.S. at 770), reinforced in Landon (459 U.S. at 32), restated in Verdugo-Urquidez (494 U.S. at 268-69)—and applied in Lynch (810 F.2d at 1370) and Castro (742 F. 3d at 600)—all persons on U.S. soil are constitutionally protected against “gross physical abuse.” Castro, 742 F.3d at 600. However, even though the Constitution confers basic protection against gross physical abuse, full Fourth
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Amendment rights accorded to citizens do not apply to unlawfully-present aliens with only minimal connections to the country. See, e.g., Castro, 742 F.3d at 599-600 (Fourth Amendment does not extend to unlawfully-present aliens who remain in the United States illegally, unless they are raising claims of “gross physical abuse”); United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (criminal defendant lacked “substantial connection” with U.S. necessary to invoke Fourth Amendment protection under Verdugo-Urquidez).
In addition to the gross-physical-abuse prohibition, the mere fact of presence in this country—even unlawful presence—also confers a certain set of basic procedural guarantees before the federal government can deport the individual. See, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003) (it is “well established” that aliens have due-process rights in deportation hearings). But even then, the full scope of procedural due process rights guaranteed to citizens does not extend to unlawfully-present aliens. See, e.g., id. at 521 (“‘In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.’” (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976))); accord, e.g., Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting) (“The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however.” (citing Mathews, 426 U.S. at 79-80)).
In sum, the fact that basic procedural safeguards and protections against “gross physical abuse” are afforded to everyone on U.S. soil does not mean that the full panoply of constitutional rights accorded to citizens extends to
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each unlawfully-present alien with only minimal connections to the country. See Verdugo-Urquidez, 494 U.S. at 268-69.
b. Furthermore, courts routinely hold that unlawfully-present aliens with minimal connections to the country lack affirmative liberty rights. For example, numerous courts have held that unlawfully-present aliens with minimal connections to the country do not have the Second Amendment “fundamental right” (McDonald v. City of Chicago, 561 U.S. 742, 778 (2010)) to keep and bear arms. United States v. Portillo–Munoz, 643 F.3d 437, 442 (5th Cir. 2011) as revised (June 29, 2011); United States v. Carpio–Leon, 701 F.3d 974, 979 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022, 1023 (8th Cir. 2011) (per curiam); cf. Meza-Rodriguez, 798 F.3d at 669-672 (unlawfully-present alien had Second Amendment rights only because he arrived in the U.S. at a young age and lived here for 20 years).
And full First Amendment rights do not extend to unlawfully-present aliens without substantial connections to the country. See, e.g., Citizens United v. FEC, 558 U.S. 310, 362 (2010) (noting federal statute, now codified at 52 U.S.C. §30121, prohibiting “foreign national[s]” from making direct contributions or independent expenditures for political speech); Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (alien may be returned to home country for engaging in disfavored political speech in this country); Galvan v. Press, 347 U.S. 522, 531 (1954) (government may restrict alien’s freedom of association).
The Department of Justice has explicitly advanced this view in previous litigation. See Federal Defendants’ Memorandum in Opposition to Plaintiffs’
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Motion for TRO at 13, Pineda-Cruz v. Thompson, No. 5:15-cv-00326 (W.D. Tex. May 7, 2015) (Dkt. 22) (“Because Plaintiffs never gained entry into the United States and have not developed substantial connections with this country, they are not within the scope of individuals contemplated by the Supreme Court as being able to raise claims under the First Amendment.”). In fact, the federal government has, on dozens of occasions, argued that unlawfully-present aliens lack the full scope of constitutional rights afforded to citizens. See, e.g., infra Part II.B.2.
These principles establishing that unlawfully-present aliens lack affirmative liberty rights held by citizens comport with the Supreme Court’s declaration that aliens subject to deportation may be detained as their deportation is processed. See, e.g., Kim, 538 U.S. at 523 (“At the same time, however, the Supreme Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.”). With physical detention necessarily comes a restriction of liberties.
c. The affirmative substantive due process right recognized by the Supreme Court to seek the medical procedure of an elective abortion is much more analogous to the affirmative liberty rights courts have repeatedly held are not accorded to unlawfully-present aliens who lack substantial connections to the country. In contrast, baseline procedural safeguards and the basic protection against gross physical abuse are negative prohibitions on drastic government conduct (detention and removal without any process, and gross physical abuse).
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Plaintiffs have never offered any authority to the contrary. At an earlier stage of this litigation, Plaintiffs argued that an alien’s immigration status has no impact at all on the constitutional rights she may assert. That is wrong, as the authorities above confirm. Moreover, the authorities on which Plaintiffs rely do not establish the right to an elective abortion under the circumstances this case presents.
Plaintiffs rely on various abortion cases involving citizens, including Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (plurality op.), for the proposition that the “government may not place a ‘substantial obstacle’ in the path of women seeking abortion.” Plaintiffs’ Memorandum in Support of Their Application for a Temporary Restraining Order (Dkt. 63-1) at 5 (citing Casey, 505 U.S. at 871 (plurality op.); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). But not one of Plaintiffs’ cited cases says or implies that the substantive due process right to abortion recognized by the Supreme Court extends to unlawfully-present aliens—especially not those who have no ties to this country.
Previously in this litigation, Plaintiffs further offered a string citation of cases, but none of those cases support the proposition that unlawfully-present aliens have the right to an elective abortion. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 187 (D.D.C. 2015), for example, concerned whether the government could continue to detain asylum applicants after those individuals had demonstrated a credible fear of persecution. Each of the applicants had family members in the United States who had agreed to provide shelter and support for
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the asylum-seekers. On those facts, and in light of the plaintiffs’ threshold showing of asylum eligibility, this Court held that they could invoke the protection of the Due Process Clause. Here, the operative complaint says nothing about asylum, alleges substantial no connection to the U.S. at all, and offers no basis to believe that the aliens are on track to permanent residence.
The other authorities Plaintiffs have previously offered fare no better. Plaintiffs claimed the alleged abortion right was derived from Plyler, 457 U.S. at 210. But as explained above, the Supreme Court explicitly clarified and supplanted Plyler in Verdugo-Urquidez, 494 U.S. at 270-71. So too with Mathews, 426 U.S. at 77, which concerned resident aliens who were lawfully admitted to the United States; plus, Mathews too was clarified and supplanted by Verdugo-Urquidez. And Kwai Fun Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004), concerned an alien who had been lawfully present in the U.S. for almost two decades—in other words, someone who had established “substantial connections” under Verdugo-Urquidez.
In short, at no stage in this litigation have Plaintiffs ever presented any authority that supports the extraordinary constitutional holding they ask this Court to make.
B. The Operative Complaint Confirms that the Aliens At Issue Here Have No “Substantial Connections” to This Country, and Therefore Have No Right to an Elective Abortion.
The operative complaint (Dkt. 61-1) describes Plaintiff Roe at paragraphs 21-25 and Plaintiff Poe at paragraphs 26-29. Not a single allegation in any of
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those paragraphs—or anywhere else in the operative complaint—establishes any substantial connections between Roe, Poe, and the United States. In fact, those paragraphs confirm that Roe and Poe have no substantial connections to the country at all, since they admit that they were detained upon arrival. See Dkt. 61-1 ¶¶ 21, 26. The operative complaint further admits that Plaintiffs Roe and Poe “have no legal immigration status,” and thus are in this country unlawfully. Id. ¶ 33.
Plaintiff Roe’s declaration in support of her application for a temporary restraining order further confirms that she has no substantial connections to this country. See Dkt. 63-2. She admits that she was “detained upon arrival.” Id. ¶ 4.
Those undisputed facts resolve this case. Under Verdugo-Urquidez, the Plaintiffs must show “substantial connections” to assert full Fifth Amendment affirmative liberty rights. 494 U.S. at 271. They have not done so; in fact, they have confirmed that they have no such connections. See Dkt. 61-1; Dkt. 63-2. They thus stand at the start of the “ascending scale of rights” that individuals climb as they “increase[] [their] identity with our society.” Eisentrager, 339 U.S. at 770. At that level, the Constitution protects them against “gross physical abuse” in this country. Castro, 742 F. 3d at 600. The Constitution further confers some basic procedural guarantees related to their deportation proceedings. Kim, 538 U.S. at 523. But as Verdugo-Urquidez, Eisentrager, and Kim confirm, the Constitution does not accord them the affirmative liberty right to an elective abortion.
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II. The Previous Order Granting a Temporary Restraining Order Should Be Disregarded Because It Failed to Cite the Well-Accepted and Controlling “Substantial Connections” Test.
The Court’s previous Order on Plaintiff Jane Doe’s application for a temporary restraining order overlooked the bedrock principles articulated in Eisentrager and Verdugo-Urquidez, even though those principles confirm that an unlawfully-present alien with virtually no ties to this country has no right to an elective abortion. The Court should disregard its previous Order as to Jane Doe and apply the correct law as to Plaintiffs Roe and Poe.
A. The Court Has a Duty to Apply the Correct Law.
As Judge Henderson’s dissent correctly observed, 874 F.3d at 745-46, regardless of what the parties have argued, this Court should decide the predicate constitutional question this case presents before resolving Plaintiffs’ application. See, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (if a party “fail[s] to identify and brief” “an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute,” the Court may consider the issue sua sponte (citation omitted)). After all, “even an explicit concession on this point would not ‘“relieve this Court of the performance of the judicial function”’ of deciding the issues.” Torres v. Puerto Rico, 442 U.S. 465, 471 n.3 (1979) (quoting Sibron v. New York, 392 U.S. 40, 59 (1968)). Moreover, a government’s “concessions cannot be accepted” when they are contrary to law. Massachusetts v. United States, 333 U.S. 611, 625 (1948).
In short, regardless of what the parties have argued, the Court has a duty apply the correct legal framework. See id.
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B. The “Substantial Connections” Test Is Widely Cited and Applied As Controlling.
1. Federal courts uniformly and routinely apply the controlling VerdugoUrquidez test when determining whether aliens can assert constitutional rights. E.g., Meza-Rodriguez, 798 F.3d at 670; Ibrahim, 669 F.3d at 995; United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012); Portillo-Munoz, 643 F.3d at 440; Vilches-Navarrete, 523 F.3d at 13; Atamirzayeva v. United States, 524 F.3d 1320, 1325 (Fed. Cir. 2008); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 202 (D.C. Cir. 2001). As these citations demonstrate, the arguments amici advance reflect basic principles that have governed the rights of aliens for decades.
2. In conformance with the circuits’ widespread adherence to this established Supreme Court precedent, the Department of Justice has relied on Verdugo-Urquidez’s substantial-connections test dozens of times to argue that unlawfully-present aliens without sufficient ties to the country lack constitutional rights.
Just months ago, the Department argued in the Supreme Court that: [A]n alien arrested shortly after crossing the U.S. border surreptitiously cannot lay the same claim to constitutional protections as aliens who were lawfully admitted or who entered illegally then became, “in a[] real sense, a part of our population[.]” Brief for the Respondents in Opposition, Castro v. Dep’t of Homeland Sec., 137 S. Ct. 1581 (2017) (No. 16-812), 2017 WL 1046315, at *17.
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That is not the only time this year that the Department made that argument in the Supreme Court. See, e.g., Brief for the United States, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118), 2017 WL 104588 at *35 (arguing that, under Verdugo-Urquidez, aliens are “afforded constitutional protections only when ‘they ha[d] come within the territory of the United States and developed substantial connections with this country’”); Transcript of Oral Argument at 17, Jennings v. Rodriguez, No. 15-1204 (U.S. October 3, 2017) (Q: “is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?” A: “It is premised on that.”).3
The Department has made similar arguments in the Fifth Amendment context in other courts. E.g., Reply in Support of Appellants’ Brief, Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (No. 17-55208), 2017 WL 1055525, at *13 n.6 (“Aliens identified at the border who have not had any contact with the United States—even if they are subsequently paroled into the territorial United States during the resolution of their applications for admission—are not entitled to any process other than that provided by statute.”); Brief for Appellee, United States v. Kole, 164 F.3d 164 (3d Cir. 1998) (No. 96-5457), 1996 WL 33453512, at *24 (“the Constitution was ‘not intended to extend to aliens in the same degree as to citizens’”); Brief for Respondent, Wigglesworth
3 The Department later modified its response to suggest that aliens might have some rights (which is also consistent with amici’s position, as explained above), but certainly not the full scope afforded citizens. Tr. at 17-18.
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v. I.N.S., 319 F.3d 951 (7th Cir. 2003) (No. 02-1209), 2002 WL 32170294, at *19-*21 (“In order for the due process clause to apply, there must be an identifiable life, liberty or property interest. It is clear that any liberty interest [petitioner] may have in this regard is so weak that she clearly has no right to a hearing before an immigration judge . . . [petitioner] is not a permanent resident of the United States or even a temporary resident.”).
And the Department has explicitly relied on the Eisentrager “ascending scale” analysis to argue against expanded due process rights for unlawfullypresent aliens. E.g., Brief for Appellee United States, United States v. RayaVaca, 771 F.3d 1195 (9th Cir. 2014) (No. 13-50129), 2013 WL 6221846, at *13– 15 (“[T]here has long been a sliding-scale approach to determining the rights to be afforded to aliens by the Due Process Clause. Under that approach, aliens generally enjoy more rights as a function of their legality/longevity in this country. On one end of the scale is the undocumented alien; in the middle is the lawful permanent resident; and at the opposite end is the naturalized citizen. As an alien moves from one end of the scale to the other, his rights increase . . .”); Brief for Defendant-Appellee Robert S. Mueller, Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008) (No. 06-4216-CV), 2007 WL 7285642 at *32-33 (similar); Brief for Cross-Appellees and Reply Brief for Appellants, Gutierrez v. Ashcroft, 125 F. App’x. 406 (3d Cir. 2005) (Nos. 03-4798, 04-1031), 2004 WL 4184747, at *16, 20 (similar).
18

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 26 of 28
These authorities confirm that the analyses set out in Verdugo-Urquidez and Eisentrager not only are axiomatic, but that they are routinely applied in the exact situation this case presents.
* * * As the Supreme Court has recognized, the States already “bear[] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397. Yet Plaintiffs ask this Court to announce that anyone on Earth has any number of constitutional rights simply by being apprehended while trying to cross the United States border unlawfully. That holding would only further incentivize even more unlawful immigration and further strain the budgets and resources of governments throughout the Nation.
19

Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 27 of 28
Conclusion
For the foregoing reasons, the Court should deny Plaintiffs’ application for a temporary restraining order.
Respectfully submitted.
Ken Paxton Attorney General of Texas Jeffery C. Mateer First Assistant Attorney General Brantley D. Starr Deputy First Assistant Attorney General /s/ Scott A. Keller Scott A. Keller Solicitor General Bar No. TX0120 scott.keller@oag.texas.gov Kyle Hawkins Assistant Solicitor General Office of the Texas Attorney General P.O. Box 12548, Mail Code 009 Austin, Texas 78711-2548 (512) 936-1700 Attorneys for Amici Curiae
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Case 1:17-cv-02122-TSC Document 102 Filed 01/08/18 Page 28 of 28
Certificate of Service
I hereby certify that on December 17, 2017 the foregoing document was served via electronic filing on all counsel of record in this case.
/s/ Scott A. Keller Scott A. Keller Solicitor General
21

 
 Case 1:17-cv-02122-TSC Document 103 Filed 01/09/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR PROVISIONAL CLASS CERTIFICATION AND NOTICE
Plaintiffs file this reply to Defendants’ Response to Plaintiffs’ Motion for Provisional

Class Certification and Notice (ECF No. 98) to make two points.

First, despite Defendants’ suggestion to the contrary, the option of provisional class

certification is alive and well, see, e.g., R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 179-80 (D.D.C.

2015), and Plaintiffs satisfy all the requirements for provisional class certification and class

certification. See ECF Nos. 18 and 56. Moreover, the class representatives’ claims for

injunctive relief against Defendants’ no-abortion policy fall within well-established mootness

exceptions. See ECF No. 56. As to the new minors identified, Ms. Roe is an adequate class representative,1 and Ms. Poe is a member of the putative class. Defendants point to distinctions

in Ms. Roe’s and Ms. Poe’s factual circumstances, and to a variety of factual distinctions among

different members of the putative class, but none of these differences affects commonality or

typicality. Indeed, Defendant Lloyd’s refusal to allow Jane Poe to obtain an abortion—despite

the fact that her pregnancy was a result of rape, that she threatened to harm herself if she could

1 Plaintiffs dispute that Ms. Roe is 19 years old; instead, she maintains that she is 17 years old.

Case 1:17-cv-02122-TSC Document 103 Filed 01/09/18 Page 2 of 4
not obtain an abortion, and that her mother and potential sponsor threatened to beat her if she had an abortion—makes unmistakably clear that ORR has adopted a blanket no-abortion policy applicable in all circumstances.2 A decision striking down that policy will free all class members from Defendants’ unconstitutional restraint.3
Second, Defendants’ extraordinary claim that Plaintiffs’ counsel should be prohibited from contacting minors flies in the face of legal requirements ensuring that unaccompanied minors be allowed access to counsel. Indeed, 8 U.S.C. § 1232(c)(5) explicitly states that Defendants “shall ensure… that all unaccompanied alien children who are or have been in the custody of the Secretary of Homeland Security [who are not from contiguous countries] . . . have counsel to represent them in legal proceedings or matters to protect them from mistreatment.” Moreover, the Flores settlement agreement requires ORR and its funded shelters to provide or arrange for legal services information. Flores v. Reno, No. 85-cv-4544, Ex. 1 (C.D. Cal. Jan. 17, 1997).
Defendants are not only imposing a blatantly unconstitutional policy on a marginalized population to deny them access to abortion, but they are also seeking to prevent these minors from accessing counsel to vindicate their constitutional rights. Plaintiffs’ counsel fortunately found Ms. Roe and Ms. Poe after receiving anonymous tips. Absent Plaintiffs’ counsel and this Court’s intervention, both young women would have likely been forced to carry their pregnancies to term against their will. Ms. Roe’s and Ms. Poe’s cases highlight the problem of minors in the putative class who seek abortion but who will be prevented from accessing
2 The only possible exception appears to be when a minor’s life would be threatened by continuation of the pregnancy. 3 Contrary to Defendants’ claim, Defs.’ Resp. at 7 n.4, a minor without a parent, guardian, or guardian ad litem may be a plaintiff under the plain text of Federal Rule of Civil Procedure 17(c)(2), as long as the court issues an order to protect the minor.
2

Case 1:17-cv-02122-TSC Document 103 Filed 01/09/18 Page 3 of 4

abortion because of Defendants’ no-abortion policy unless Plaintiffs’ motion for preliminary class certification, or provision class certification, and notice is granted.

Date: January 9, 2017

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 jchou@aclunc.org mwroe@aclunc.org
3

Case 1:17-cv-02122-TSC Document 103 Filed 01/09/18 Page 4 of 4 Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
4

 
 Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated; JANE )

ROE and JANE MOE on behalf of

) No. 17-cv-02122-TSC

themselves and others similarly situated, and )

JANE POE,

)

)

c/o ACLU

)

125 Broad Street, 18th Fl.

)

New York, NY 10004,

)

)

Plaintiffs,

)

)

v.

)

)

ERIC HARGAN, Acting Secretary of Health )

and Human Services

)

U.S. Department of Health & Human

)

Services

)

200 Independence Avenue, S.W.

)

Washington, D.C. 20201;

)

)

STEPHEN WAGNER, Acting Assistant

)

Secretary for Administration for Children and )

Families, in his official capacity

)

330 C Street, S.W.

)

Washington, D.C. 20201; and

)

)

SCOTT LLOYD, Director of Office of

)

Refugee Resettlement, in his official capacity )

330 C Street, S.W.

)

Washington, D.C. 20201,

)

)

Defendants.

SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF (Interference with minors’ constitutional right to obtain an abortion)
Plaintiff Rochelle Garza, court-appointed guardian ad litem to minor J.D., Plaintiffs Jane Roe and Jane Moe, on behalf a class of similarly situated pregnant unaccompanied immigrant

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 2 of 19
minors in the legal custody of the federal government, and Plaintiff Jane Poe, for their complaint in the above-captioned matter, allege as follows:
PRELIMINARY STATEMENT 1. There are currently thousands of unaccompanied immigrant minors (also known as unaccompanied children, or “UCs”) in the legal custody of the federal government. These young people are extremely vulnerable: Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted either in their home countries, during their long journey to the United States, or after their arrival; some have also been trafficked for labor or prostitution in the United States or some other country; and many have been separated from their families. 2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion. And as is true with everyone in the United States, the Constitution prohibits the government from imposing an “undue burden” on their right to obtain an abortion. 3. Defendants have recently revised nationwide policies that allow them to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion in violation of their Fifth Amendment rights. Under these nationwide policies, Defendants also force unaccompanied minors who request abortion to visit a pre-approved anti-abortion crisis pregnancy center, which requires the minor to divulge the most intimate details of her life to an entity hostile to her abortion decision, in violation of her First and Fifth Amendment rights. Defendants also force minors to notify parents or other family members of their request for abortion and/or the termination of their pregnancy, or notify family members themselves, in violation of the First and Fifth Amendments. 4. Plaintiff “Jane Moe,” an unaccompanied minor in the legal custody of the federal government (a motion to allow her to proceed by a pseudonym will be filed herewith), is pregnant and seeking an abortion. Ms. Moe first requested access to abortion approximately two
2

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 3 of 19
weeks ago but, to date, Defendants have not allowed her to access abortion. Defendants have pushed Ms. Moe further into her pregnancy. Without this Court’s immediate intervention, Defendants will continue to deny Ms. Moe the ability to access abortion, and ultimately will force her to carry to term against her will.
5. Previously, two unaccompanied minors in the legal custody of the federal government, “Jane Roe” and “Jane Poe” (a motion to allow them to proceed by pseudonyms was granted), were pregnant and sought an abortion. Ms. Roe first requested an abortion on November 21, 2017, but Defendants did not allow her to access abortion. Defendants pushed Jane Roe further into her pregnancy, forcing her to forgo a medication abortion. Ms. Poe also sought an abortion, and she was quickly approaching the limit for abortion in the state where she was being detained. Ms. Poe urgently needed access to an abortion provider, but Defendants did not allow her to see one. Absent this Court’s immediate intervention, Defendants would have continued to block Ms. Roe’s and Ms. Poe’s ability to access abortion, and ultimately would have forced them to carry their pregnancies to term against their will.
6. Previously, an unaccompanied immigrant minor in the legal custody of the federal government, J.D. (for “Jane Doe”; an unopposed motion to allow her to proceed by those pseudonymous initials is pending), learned she was pregnant and told the shelter in Texas where she lives that she would like to have an abortion. Because Texas requires parental consent or a judicial waiver of that requirement, J.D. went to court and, with the assistance of an attorney ad litem and a guardian ad litem, received judicial permission to consent to the abortion on her own. Defendants took the position that J.D. was prohibited from accessing an abortion: Defendants would not transport her for the abortion, nor would they allow anyone else to do so. Defendants essentially held J.D. hostage to prevent her from getting an abortion in blatant violation of J.D.’s constitutional rights.
7. Defendants also forced J.D. to visit a religious, anti-abortion crisis pregnancy center, and, over J.D.’s objections, told J.D.’s mother that J.D. was pregnant. To vindicate her constitutional rights to terminate her pregnancy and to avoid compelled speech, her court-
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appointed guardian ad litem, Rochelle Garza, sought an immediate TRO to grant J.D. access to judicially approved abortion, and, on behalf of the class of similarly situated unaccompanied immigrant minors, a preliminary injunction to prevent Defendants from obstructing, interfering with, or blocking other individuals’ access to abortion.
8. Although J.D., Jane Roe, and Jane Poe were able to obtain abortions after this Court’s intervention, Defendants are now preventing Jane Moe from accessing abortion.
9. While abortion is a very safe procedure, each week of delay increases the risk associated with it.
10. Absent emergency injunctive relief, Defendants’ actions will have the effect of forcing Jane Moe to continue her pregnancy against her will.
JURISDICTION AND VENUE 11. This action arises under the First and Fifth Amendments to the United States Constitution and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. 12. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable powers of this Court. 13. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. 14. Venue is proper in this district under 28 U.S.C. § 1391(e).
PARTIES 15. Plaintiff Rochelle Garza is the court-appointed guardian ad litem for J.D., a minor who came to the United States without her parents from her home country. J.D. was detained by the federal government and placed in a federally funded shelter in Texas. J.D. is 17 years old. She was pregnant and told the staff at the shelter where she is currently housed that she wanted an abortion. J.D. faced extreme resistance from Defendants. After Plaintiffs’ counsel contacted Defendants’ counsel, J.D. was allowed to pursue a judicial bypass in lieu of securing parental
4

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 5 of 19
consent for the abortion, as required by Texas law. With the assistance of attorney and guardian ad litems, J.D. secured a court order permitting her to have an abortion without parental consent. Nevertheless, Defendants took the position that they would not allow J.D. to access abortion.
16. J.D. was forced to cancel multiple appointments for state-mandated counseling and the abortion due to Defendants’ obstruction, which pushed J.D. later into pregnancy; although abortion is very safe, each week of delay increases the risks. Abortion is approximately 14 times safer than childbirth in terms of morbidity. J.D. remains in Defendants’ custody, and absent a TRO from this Court, J.D. would have been forced to carry to term against her will.
17. Defendants also forced J.D. to visit an anti-abortion crisis pregnancy center, and over J.D.’s objection, Defendants told J.D.’s mother about her pregnancy.
18. J.D. moved this Court to be referred to in this litigation by the initials “J.D.” for “Jane Doe” to protect her privacy. She fears retaliation because of her abortion decision, and she does not want her family to know she sought and obtained abortion.
19. J.D. sues on her own behalf and as the class representative of other similarly situated young women.
20. Plaintiff Jane Roe came to the United States without her parents, was detained by the federal government, and was residing in a private, federally funded shelter. On November 21, 2017, she discovered she was pregnant during a medical examination after she was in federal custody. The physician discussed her pregnancy options, and she decided to have an abortion. She asked her doctor and her shelter for an abortion, but Defendants did not allow her to have one. Jane Roe requested to terminate her pregnancy by taking medications (known as a medication abortion) that end the pregnancy and essentially cause a miscarriage. However, because of Defendants’ obstruction, a medication abortion was no longer an option. Jane Roe nonetheless still wanted an abortion.
21. Jane Roe was granted leave from this Court to proceed in this litigation as “Jane Roe” to protect her privacy. She fears retaliation because she requested and obtained an abortion, and she does not want her family or others to know she sought or obtained an abortion.
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Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 6 of 19
22. Upon information and belief, based on Defendants’ policy, Jane Roe has or will be forced to disclose, or Defendants will disclose, highly personal and confidential information about her pregnancy against her will, including to family members and/or to an anti-abortion counseling center.
23. Jane Roe sues on her own behalf and as class representative of other similarly situated young women.
24. Plaintiff Jane Poe came to the United States without her parents, was detained by the federal government, and is residing in a private, federally funded shelter. She discussed her pregnancy options with a physician, and decided to have an abortion. She asked the shelter for access to abortion but was not permitted to access abortion.
25. Upon information and belief, based on Defendants’ policy, Jane Poe has or will be forced to disclose highly personal and confidential information about her pregnancy against her will, including to family members and to an anti-abortion counseling center. In fact, when Ms. Poe was required to tell her mother and potential sponsor about her pregnancy, they threatened to physically abuse her if she had an abortion.
26. Jane Poe was granted leave by this Court to proceed in this litigation as “Jane Poe” to protect her privacy. She fears retaliation because she requested and obtained an abortion, and she does not want her family or others to know she sought and obtained an abortion.
27. Jane Moe came to the United States without her parents, was detained by the federal government, and is residing in a private, federally funded shelter. She has decided to have an abortion. She asked the shelter for access to abortion but, to date, has not been permitted to access abortion.
28. Pursuant to Defendants’ policy, Jane Moe was required to visit an anti-abortion crisis pregnancy center to discuss her pregnancy.
29. Upon information and belief, based on Defendants’ policy, Defendants are seeking to require Ms. Moe to disclose her pregnancy and abortion decision to her parents, despite her desire that this information be kept private. Ms. Moe does not want to be forced to
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Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 7 of 19
disclose, or have Defendants disclose, highly personal and confidential information about her pregnancy against her will to family members and/or potential sponsors.
30. Jane Moe requests leave from this Court to proceed in this litigation as “Jane Moe” to protect her privacy. She fears retaliation because she has requested an abortion, and she does not want her family or others to know she is seeking an abortion.
31. Jane Moe sues on her own behalf and as class representative of other similarly situated young women.
32. Defendant Eric Hargan is the Acting Secretary of the United States Department of Health and Human Services (“HHS”) and is responsible for the administration and oversight of the Department. Defendant Hargan has authority over the Administration for Children and Families, a subdivision of HHS. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Hargan is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Hargan is sued in his official capacity.
33. Defendant Steven Wagner is the Acting Assistant Secretary for Administration for Children and Families. Defendant Wagner has authority over the Office of Refugee Resettlement (“ORR”), a subdivision of Administration for Children and Families. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Wagner is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Wagner is sued in his official capacity.
34. Defendant Scott Lloyd is the Director of ORR. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Lloyd is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Lloyd is sued in his official capacity.
FACTS GIVING RISE TO THIS ACTION The Unaccompanied Children (“UC”) Program
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Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 8 of 19
35. ORR has responsibility for the “care and custody of all unaccompanied [] children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1). Unaccompanied immigrant minors are under 18 years old, have no legal immigration status, and either have no parent or legal guardian in the United States, or there is no parent or legal guardian in the United States able to provide care and physical custody. 6 U.S.C. § 279(g)(2).
36. By statute, any federal department or agency that determines that it has an unaccompanied immigrant minor in its custody must transfer the minor to ORR within 72 hours of making that determination. Id. § 1232(b)(3). The federal government reports that in Fiscal Year 2016, 59,692 unaccompanied immigrant minors were referred to ORR.
37. The federal government and all of its programs are required to ensure that the best interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland Security Act requires ORR to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. § 279(b)(1)(B).
38. In addition, Section 235 of the Trafficking Victims Protection Act directs HHS to ensure that unaccompanied immigrant minors are “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
39. Most unaccompanied immigrant minors who are referred to ORR are eventually released from custody to parents or sponsors who live in the United States. Such minors are often held in short-term facilities or shelters while they await release to their parents or sponsors. A significant number of unaccompanied immigrant minors are not released to parents or sponsors, and spend longer periods of time in custody. For some minors, ORR cannot identify an individual who can serve as a viable sponsor. Young people who are expected to be in the government’s custody for an extended period or those who have special needs are sometimes transferred to group homes or a foster family. For others, ORR may determine that the minor should be placed in a more restrictive custodial setting. Young people who are flight risks, for example, are held in jail-like facilities with limited, if any, freedom.
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Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 9 of 19
Unaccompanied Immigrant Minors Are Legally Entitled to Receive Access to Reproductive Health Care
40. Unaccompanied immigrant minors have an acute need for reproductive health care, which is both time-sensitive and is necessary over the course of their time in federal custody. For example, a high number of these young women are victims of sexual assault. Some of these women will need access to emergency contraception, and some will need access to abortion. Any female aged 10 or older must undergo a pregnancy test within 48 hours of admission to an ORR-funded facility. This is the point at which many young women first learn they are pregnant. Many unaccompanied minors need pregnancy prevention services and/or access to abortion during their short or long periods in ORR custody.
41. The federal government is legally obligated to ensure that all programs that provide care to these young people comply with the minimum requirements detailed in the Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997) (“Flores agreement”). The Flores agreement is a nationwide consent decree that requires the government to provide or arrange for, among other things, “appropriate routine medical . . . care,” including specifically “family planning services[] and emergency health care services.”
42. Additionally, in response to its obligations under the Prison Rape Elimination Act and the Violence Against Women Reauthorization Act of 2013, ORR issued a regulation requiring all ORR-funded care provider facilities to, among other things, provide unaccompanied immigrant minors who are victims of sexual assault with access to reproductive healthcare. The regulation states, in relevant part, that grantees providing care to unaccompanied immigrant minors who have experienced sexual abuse while in federal custody must ensure “unimpeded access to emergency medical treatment, crisis intervention services, emergency contraception, and sexually transmitted infections prophylaxis.” 45 C.F.R. § 411.92(a). The regulation further provides that grantees must ensure that a young person subject to sexual abuse is offered a pregnancy test, and “[i]f pregnancy results from an instance of sexual abuse, [the] care provider facility must ensure that the victim receives timely and comprehensive information about all
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lawful pregnancy-related medical services.” Id. § 411.93(d). Grantees were required to comply with this regulation by June 24, 2015.
43. Upon information and belief, unaccompanied immigrant minors face significant barriers to obtaining services not provided by the government and/or its grantees. For example, even if a teen can leave the shelter, she still may not be able to obtain access to abortion or contraceptives without assistance because she likely speaks little or no English; she may have no support system, other than that provided by the federal program; she may have no means of transportation to the doctor’s office; and she may have little or no financial resources. If she is not informed that contraceptives and abortions are available in the United States, she may not even know that these options exist, given that many of these young people come from countries where abortion is illegal.
Defendants’ Interference With, Obstruction, or Prohibition On Unaccompanied Immigrant Minors’ Access to Abortion
44. Defendants are wielding an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion. In March 2017, ORR revised its policies to prohibit all federally funded shelters from taking “any action that facilitates” abortion access for unaccompanied minors in their care without “direction and approval from the Director of ORR.” This includes scheduling appointments with medical providers, ensuring access to non-directive options counseling, ensuring access to court to seek a judicial bypass in lieu of parental consent, and providing access to the abortion itself.
45. In an email to all ORR staff, then-Acting Director of ORR Ken Tota summarized the policy: “Grantees are prohibited from taking any actions in [requests for abortion] without . . . signed authorization from the Director of ORR.”
46. As part of the revised policy, the minor is forced to tell her parents that she is seeking an abortion; if she refuses, ORR instructs the shelter to tell her parents against her
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wishes. Moreover, ORR requires minors considering an abortion to visit an anti-abortion – often religiously affiliated – crisis pregnancy center. If these attempts to coerce the minor into carrying to term fail, ORR prevents the minor from obtaining an abortion while in its custody unless the pregnancy would pose risk of death or serious injury to the minor.
47. Defendants have exercised their unconstitutional veto power to deny J.D., Jane Roe, Jane Poe, and Jane Moe access to abortion. After Plaintiffs’ counsel’s intervention, Defendants permitted J.D. to seek a judicial bypass in lieu of parental consent required by Texas law. J.D. secured that court order with the assistance of an attorney ad litem and a guardian ad litem, Plaintiff Garza. J.D. had an appointment scheduled with a health center for options counseling (the first step in the process of obtaining an abortion under Texas law), but Defendants told the ad litems, Plaintiffs’ counsel, and the shelter that Defendants prohibited J.D. to be transported by her ad litems to the health center. Defendants also made clear that J.D. would be prohibited from obtaining the abortion itself.
48. The judicial bypass order obtained for J.D. remained valid. Plaintiff Garza stood ready and able to transport J.D. to all appointments necessary for the abortion, including the state-mandated options counseling sessions and the medical procedure itself.
49. Upon information and belief, Defendants instructed the shelter in which J.D. resides to prohibit J.D. from leaving the facility to access abortion, and told the shelter that if they allowed her access, Defendants would revoke the shelter’s government grant. But for that instruction, the shelter was willing to allow Plaintiff Garza to transport J.D. to the abortion facility.
50. Defendants also withheld permission that would have allowed Jane Roe’s and Jane Poe’s respective shelters to transport them to an abortion clinic. This means that they were
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Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 12 of 19
prohibited from accessing abortion. The shelters were ready and willing to transport them, or to allow them to be transported, to an abortion facility, but lacked Defendants’ permission.
51. Defendants are currently withholding permission that would allow Jane Moe’s shelter to transport her to an abortion clinic. This means that Ms. Moe is prohibited from accessing abortion. If the shelter was to obtain Defendants’ permission, it is ready and willing to transport her, or allow her to be transported, to an abortion facility.
52. Defendants have also interfered with abortion access for other minors. In fact, the Director of ORR, Scott Lloyd, has taken the position that “[g]rantees should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
53. Defendants’ actions toward J.D., Jane Roe, Jane Poe, and Jane Moe are consistent with their policy, which has been enforced against other young women as well.
54. For example, in March 2017, another unaccompanied minor at a federally funded shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving counseling, she started the medical abortion regimen for terminating a pregnancy. This regimen begins with a dose of mifepristone, followed by a dose of misoprostol within 48 hours later. After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency room of a local hospital in order to determine the health status of [her] and her unborn child.” The Acting Director of ORR, Ken Tota, directed ORR as follows: “[i]f steps can be taken to preserve the life of . . . her unborn child, those steps should be taken.” Eventually, after the intervention of other advocates, ORR allowed the minor to complete the medication abortion and take the second dose of pills.
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55. Furthermore, Defendant ORR Director, Scott Lloyd, has personally contacted one or more unaccompanied immigrant minors who was pregnant and seeking abortion, and discussed with them their decision to have an abortion. Upon information and belief, Defendant Lloyd is trying to use his position of power to coerce minors to carry their pregnancies to term.
56. ORR has also created a nationwide list of “Trusted Providers in HHS Cities,” which is predominately comprised of anti-abortion crisis pregnancy centers.
57. Crisis pregnancy centers (“CPCs”) are categorically opposed to abortion, and generally do not provide information about pregnancy options in a neutral way. Many are also religiously affiliated, and proselytize to women.
58. Defendants forced J.D. to visit one of these centers for “counseling,” forcing her to share her most private personal and medical information to an entity that is hostile to her decisions to have an abortion.
59. Defendants have also required other minors to be counseled by crisis pregnancy centers, including Jane Moe, both before and after the abortion, including at the explicit direction of Defendant ORR Director Scott Lloyd.
60. Defendants have also unconstitutionally forced unaccompanied immigrant minors to tell their parents and/or immigration sponsors about their abortion decision, or Defendants themselves have told minors’ family members or sponsors about the minors’ pregnancy and/or abortion decision, against the express wishes of the minor, both before and after the abortion.
61. Defendants told J.D.’s mother about J.D.’s pregnancy – over J.D.’s objections – and tried to force J.D. to also tell her mother she was pregnant and seeking an abortion. In at least one other minor’s case, Defendant Lloyd explicitly required “the grantee or the federal field
13

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 14 of 19
staff [to] notify her parents of the termination,” even after she had obtained a judicial bypass to be allowed to access abortion without her parents’ involvement or knowledge.
CLASS ALLEGATIONS 62. Pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), Plaintiff Rochelle Garza, on behalf of J.D., brings this action as a class action on behalf of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit. Plaintiffs Jane Roe and Jane Moe also bring this action as a class action on behalf of the same class. 63. The class is so numerous that joinder is impracticable. In any given year, there are hundreds of pregnant unaccompanied minors in Defendants’ custody. Joinder is inherently impractical because the number of unnamed, future class members who will be pregnant while in ORR custody is unknown and unknowable, especially given the transient nature of the unaccompanied minors population and the temporal limitations of pregnancy. The young people affected by ORR’s abortion restriction policy are geographically dispersed across the country. Proposed class members are highly unlikely to file individual suits on their own behalf given the practical, legal, linguistic, monetary, and fear-based barriers that prevent their ability to access independent counsel to challenge ORR’s abortion restrictions. 64. The claims of the Plaintiff Class members share common issues of law, including but not limited to: (i) whether ORR’s policy of exercising a veto power over a UC’s abortion access violates class members’ constitutional rights; (ii) whether HHS’s policy of requiring a forced visit to an anti-abortion crisis pregnancy center violates class members’ constitutional rights; and (iii) whether disclosing – or forcing the class members to disclose – to parents or immigration sponsors their abortion decisions violate class members’ constitutional rights.
14

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65. The claims of the Plaintiff Class members share common issues of fact, including but not limited to the implementation of Defendants’ policy and practice of obstructing or preventing of access to abortion in the various ways detailed above.
66. The claims of J.D., Jane Roe, and Jane Moe are typical of the claims of members of the Plaintiff Class.
67. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The named Plaintiffs have no interest that is now or may potentially be antagonistic to the interests of the Plaintiff Class. The attorneys representing the named Plaintiffs are experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
68. Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(2).
69. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).
CAUSES OF ACTION FIRST CLAIM FOR RELIEF FIFTH AMENDMENT RIGHT TO PRIVACY AND LIBERTY (PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS) 70. Defendants violate unaccompanied immigrant minors’ right to privacy guaranteed by the Fifth Amendment by wielding a veto power over their abortion decisions, and obstructing,
15

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 16 of 19
interfering with, or blocking access to abortion, including by forcing minors to visit crisis pregnancy centers and preventing them from going to medical facilities where they can obtain legal abortions.
71. Defendants violate the Fifth Amendment rights of unaccompanied minors by revealing, or forcing the minors to reveal, information about their pregnancy and abortions to their parents or other family members, including immigration sponsors, both before and after the abortion.
SECOND CLAIM FOR RELIEF FIRST AMENDMENT - COMPELLED SPEECH (PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS) 72. By compelling unaccompanied immigrant minors to discuss their decisions to have abortions and the circumstances surrounding those decisions with crisis pregnancy centers, and with their parents or immigration sponsors, Defendants violate the unaccompanied immigrant minors’ rights against compelled speech guaranteed by the First Amendment.
THIRD CLAIM FOR RELIEF INFORMATIONAL PRIVACY (PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS) 73. By requiring unaccompanied immigrant minors to disclose their identities, their pregnancies, and their decisions to seek or have an abortion, to a crisis pregnancy center, parents, and/or immigration sponsors, Defendants violate the minors’ rights to informational privacy guaranteed by the Fifth Amendment.
FOURTH CLAIM FOR RELIEF FIRST AMENDMENT – ESTABLISHMENT CLAUSE (PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS)
16

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 17 of 19

74. Defendants violate the Establishment Clause by requiring unaccompanied immigrant minors to obtain counseling at crisis pregnancy centers that are often religiously affiliated, and that proselytize to the unaccompanied immigrant minors who are forced to go there.
75. Defendants’ actions alleged herein endorse and impose upon the class members a particular set of religious beliefs.
76. Defendants’ actions alleged herein have the predominant purpose of advancing a particular set of religious beliefs.
77. Defendants’ actions alleged herein have the predominant effect of advancing a particular set of religious beliefs.
78. Defendants’ actions alleged herein are religiously coercive. RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor

and: 1.

Certify this action as a class action under Federal Rule of Civil Procedure 23.

2. Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth

above, violate the Establishment and Free Speech Clauses of the First Amendment to the United

States Constitution, and the Fifth Amendment right to privacy, liberty, and informational

privacy;

3. Enter a Temporary Restraining Order preventing Defendants from obstructing

Jane Moe’s access to abortion;

4. Enter a preliminary injunction as to the Plaintiff Class;

17

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 18 of 19

5. Enter a permanent injunction preventing Defendants from wielding a veto power over an unaccompanied minors’ abortion decision, including interfering, obstructing, or blocking her abortion;
6. Enter a permanent injunction preventing Defendants from forcing unaccompanied immigrant minors to visit crisis pregnancy centers as a condition of having an abortion or after an abortion;
7. Enter a permanent injunction preventing Defendants from revealing, or forcing unaccompanied immigrant minors to reveal, to the minors’ parents or immigration sponsors information about the minors’ pregnancies and/or abortion decisions, either prior to or after the abortion decisions;
8. Enter a permanent injunction preventing Defendants from retaliating against unaccompanied immigrant minors for seeking or obtaining abortions;
9. Award costs and fees for this action, including attorneys’ fees; 10. Award such further relief as this Court deems appropriate.

January 11, 2017

Respectfully Submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/Brigitte Amiri Brigitte Amiri*
18

Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 19 of 19
Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Elizabeth Gill Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Motion for admission pro hac vice granted
Attorneys for Plaintiffs
19

 
 Case 1:17-cv-02122-TSC Document 105 Filed 01/11/18 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

APPLICATION FOR A TEMPORARY RESTRAINING ORDER Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, Plaintiff Jane Moe hereby applies for the issuance of an order temporarily restraining Defendants (along with their respective successors in office, officers, agents, servants, employees, attorneys and anyone acting in concert with them) from, inter alia, interfering with or obstructing Ms. Moe’s access to abortion; forcing, coercing, or requiring Ms. Moe to obtain additional “counseling” from an antiabortion entity, including a crisis pregnancy center or “pregnancy resource center” either before or after her abortion; forcing, coercing, or requiring Ms. Moe to notify anyone of her abortion decision, either before or after her abortion; disclosing Ms. Moe’s abortion decision themselves, either before or after their abortions, to her family or potential sponsors; coercing or attempting to “persuade” Ms. Moe to carry her pregnancy to term; or retaliating against Ms. Moe and any shelter staff who assist her based on her decision to have an abortion and the shelter staff’s assistance, respectively. This motion is based on the memorandum of points and authorities submitted herewith, all declarations, pleadings and filings filed in this action. The grounds for this application are

Case 1:17-cv-02122-TSC Document 105 Filed 01/11/18 Page 2 of 3

that Defendants’ actions and policies violate Ms. Moe’s rights under the First and Fifth Amendments to the Constitution of the United States, insofar as these actions and policies unlawfully violate Ms. Moe’s rights to privacy, liberty and informational privacy, and rights against compelled speech; that Ms. Moe will suffer irreparable injury if the Defendants are not enjoined; that Defendants will not be injured if a temporary restraining order issues; and that the public interest favors the issuance of a temporary restraining order.
Given the Court’s familiarity with the issues presented in the TRO, and given that time is of the essence, Plaintiffs respectfully request that this Court decline to hold oral argument. Of course, should the Court decide argument is helpful, Plaintiffs’ counsel will make themselves available at any time.

January 11, 2018

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/ Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org
2

Case 1:17-cv-02122-TSC Document 105 Filed 01/11/18 Page 3 of 3
mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org Elizabeth Gill Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org mwroe@aclunc.org Melissa Goodman* American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org *Admitted pro hac vice Attorneys for Plaintiffs
3

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFF JANE MOE’S MEMORANDUM IN SUPPORT OF HER APPLICATION FOR A TEMPORARY RESTRAINING ORDER PRELIMINARY STATEMENT
Jane Moe seeks a temporary restraining order (TRO) to prohibit the federal government from denying her the ability to access abortion. Jane Moe is a 17-year-old unaccompanied immigrant minor who is currently in the federal government’s legal custody, living in a government-funded shelter.1 Ms. Moe is pregnant and resolute in her desire to have an abortion. Nevertheless, as a result of Defendants’ sustained enforcement of their policy of ensuring that all pregnant minors in their custody continue their pregnancies, even against their will, Ms. Moe is being prevented from exercising her constitutionally protected decision.
Ms. Moe first requested access to abortion approximately two weeks ago. Ex. 1, Decl. of Jane Moe ¶ 6. To date, however, Defendants have not permitted Ms. Moe’s shelter to allow Ms. Moe to access abortion. Id. ¶ 7. Absent an immediate TRO, Ms. Moe will be pushed further into

1 Plaintiffs’ motion for Ms. Moe to proceed using a pseudonym to protect her privacy has been filed simultaneously with this motion.

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 2 of 9
her pregnancy, increasing the risks associated with the abortion procedure, and, if the Court does not intervene, Ms. Moe will be forced to carry to term against her will.
This Court has now considered the parties’ arguments as to the Plaintiffs’ likelihood of success in their constitutional challenge to Defendants’ no-abortion policy twice. It has twice balanced the irreparable harm to a minor from being unduly delayed and/or blocked from effectuating her abortion decision, against any alleged harm to Defendants, and twice considered the public interests at stake. Having done all of this, this Court has issued two TROs – one to prevent Defendants from interfering or obstructing Plaintiff Jane Doe’s access to abortion and another to prevent Defendants from interfering or obstructing Plaintiffs Jane Roe’s and Jane Poe’s access to abortion. See October 18, 2017 Order (ECF No. 20); December 18, 2017 Order (ECF No. 73). The same factors that counseled in favor of granting relief to Ms. Doe, Ms. Roe and Ms. Poe support doing the same with respect to Ms. Moe. Accordingly, Plaintiffs respectfully request that this Court similarly issue an immediate, emergency temporary injunction prohibiting Defendants from obstructing or interfering with Ms. Moe’s ability to exercise her fundamental right to obtain an abortion.
FACTUAL BACKGROUND In March of 2017 Defendants established a policy of prohibiting all federally funded shelters from “taking ‘any action that facilitates’ abortion access for unaccompanied minors absent ‘direction and approval from the Director of the ORR.’” See Findings of Fact in Supp. of Amended TRO ¶ 5 (ECF No. 30); December 18, 2017 Order, Findings of Fact ¶ 9 (ECF No. 73) (noting that the Defendants’ policy of prohibiting shelters from “taking ‘any action that facilitates’ abortion access for unaccompanied minors absent ‘direction and approval from the Director of the ORR’ . . . remain[ed] in effect at [that] time with respect to Jane Roe and Jane
2

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 3 of 9
Poe”); id. at Conclusions of Law ¶ 1 (“ORR continues to claim—and in the case of J.P., has actually exercised—ultimate authority to unilaterally veto the reproductive choices of the unaccompanied minors in its custody.”).2 Defendants are once again applying this policy, this time to prevent Jane Moe from exercising her constitutionally protected right.
Ms. Moe is 17 years old and arrived in the U.S. from her home country without her parents. See Ex. 1, Decl. of Jane Moe ¶¶ 2-3. She has been placed in ORR-funded shelter. Id. ¶ 4. Ms. Moe first requested access to abortion approximately two weeks ago. Id. ¶ 6. Despite this request, and her continued insistence that she wants an abortion, Defendants have refused to grant consent for her shelter to provide her with access to an abortion provider. Id. ¶ 7.
Defendants’ actions have already caused Ms. Moe to delay her abortion by approximately two weeks. Ms. Moe is already in her second trimester of pregnancy; any further delay increases the risks to her health as well as the risk that she will ultimately be stripped of her constitutional right to abortion entirely. Accordingly, time is once again of the essence. Given this, and that this Court is now extremely familiar with the issues presented in the TRO, Plaintiffs respectfully request that this Court decline to hold oral argument and issue an order prohibiting Defendants from forcing Ms. Moe to remain pregnant against her will for any longer. Of course, should the Court decide argument is helpful, Plaintiffs’ counsel will make themselves available at any time of the Court’s convenience.
ARGUMENT To obtain a preliminary injunction or temporary restraining order, a plaintiff must establish (1) “that [s]he is likely to succeed on the merits,” (2) “that [s]he is likely to suffer
2 Plaintiffs incorporate by reference the facts submitted in support of their prior Applications for a TRO and their Motion for a Preliminary Injunction (ECF Nos. 3, 5, 63).
3

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irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [her] favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016). Courts in this Circuit have traditionally applied these factors on a “sliding scale,” where a stronger showing on some factors can compensate for a weaker showing on others. See, e.g., Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). It has been suggested, but not decided, that a likelihood of success on the merits may be required. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (citing Winter, 555 U.S. at 20-22). Under either approach, Plaintiffs make the necessary showing here.
I. Plaintiff Jane Moe Is Likely to Succeed on the Merits of Her Claims. A. Defendants’ Conduct Violates Jane Moe’s Fifth and First Amendment Rights. 1. Defendants Cannot Prevent Jane Moe From Accessing Abortion.
As in the cases of Jane Doe, Jane Roe and Jane Poe, Roe v. Wade, 410 U.S. 113 (1973) and its progeny, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), control here. These Supreme Court cases make clear that government may not place a “substantial obstacle” in the path of women seeking abortion. Whole Woman’s Health, 136 S. Ct. at 2309. Defendants’ policy of blocking minors’ from accessing abortion goes beyond imposing a substantial obstacle—it outright prohibits minors from exercising their right to decide to terminate their pregnancies before viability. Such a prohibition is blatantly unconstitutional under binding Supreme Court precedent. See, e.g., Casey, 505 U.S. at 871 (a “woman’s right to terminate her pregnancy before viability” is “a rule of law and a component of liberty we cannot renounce”).
4

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Defendants continue to violate binding Supreme Court precedent here by refusing to allow Ms. Moe to obtain an abortion. As with Ms. Doe, Ms. Roe and Ms. Poe, Defendants are exercising their veto power over Ms. Moe’s constitutionally protected abortion decision by denying her the ability to access abortion. As with Ms. Doe, Ms. Roe and Ms. Poe, there is no reason that remotely passes constitutional muster for Defendants to be doing so. Nevertheless, Defendants persist in enforcing their blatantly unconstitutional policy against Ms. Moe, refusing to permit her to access abortion care in direct violation of the Fifth Amendment.
2. Defendants Cannot Force Jane Moe To Disclose (Or Disclose Themselves) Her Pregnancy And Abortion Decision to Others Without Her Consent.
As Plaintiffs have explained, Defendants’ infringement of minors’ constitutional rights goes beyond blocking their ability to access abortion. Defendants’ policy also requires minors to tell parents and/or sponsors about their pregnancies and abortion decisions even if they do not wish to do so—otherwise Defendants will tell those parents and sponsors themselves over the minors’ objections—and compels minors to attend “life-affirming” spiritual counseling. See, e.g., Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Exs. A-I to Decl. of B. Amiri in Supp. of TRO & Prelim. Inj. (ECF Nos. 5-3 – 5-12); Pl.’s Mot. for Class Cert. (ECF No. 18); Pl.’s Reply in Supp. of Class Cert. (ECF No. 56); Pls.’ Roe & Poe Mem. in Supp. of App. for TRO (ECF No. 63-1). As set forth in Plaintiffs’ prior briefings, these aspects of Defendants’ policy also violate minors’ Fifth and First Amendment rights. Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Pls.’ Roe & Poe Mem. in Supp. of App. for TRO (ECF No. 63-1).
Pursuant to Defendants’ policy, Ms. Moe has already been taken to a “crisis pregnancy center” to discuss her pregnancy. See Second Amended Complaint ¶ 28. Upon information and belief, pursuant to Defendants’ policy, Defendants are also seeking to require Ms. Moe to
5

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 6 of 9
disclose her pregnancy and abortion decision to her parents, despite her strong desire that this information be kept confidential. Id. ¶ 29. Given that Defendants continue to enforce their unconstitutional policy against pregnant minors in their care, Ms. Moe also faces the risk that Defendants will disclose her private information to her parents or potential sponsor themselves, over her objection and without her consent. Accordingly, like Plaintiffs Jane Doe, Jane Roe and Jane Poe before her, Plaintiff Jane Moe is likely to succeed on her Fifth and First Amendment claims.
B. Jane Moe Will Suffer Irreparable Injury Unless Defendants Are Enjoined. Ms. Moe will suffer immediate and irreparable harm if this Court does not require Defendants to provide her with immediate access to the abortion care she seeks. As Plaintiffs have explained, time is “of the essence in an abortion decision.” H.L. v. Matheson, 450 U.S. 398, 412 (1981); see Pl.’s Mem. in Supp. of TRO & Prelim Inj. 14-15 (ECF No. 5-1). This is both because the medical risks associated with the abortion procedure increase as the pregnancy progresses and because delaying a woman from accessing abortion care past a certain point in her pregnancy will strip her of her right to choose entirely. See Pl.’s Mem. in Supp. of TRO & Prelim Inj. 14-15 (ECF No. 5-1); Williams v. Zbaraz, 442 U.S. 1309, 1314–15 (1979) (Stevens, J., sitting as Circuit Justice) (increased risk of “maternal morbidity and mortality” supports claim of irreparable injury). Just as Plaintiffs Doe, Roe and Poe did, Ms. Moe faces irreparable harm if she is not granted the relief she seeks. Each day that goes by is another day that Ms. Moe is forced by Defendants to remain pregnant against her will. Although abortion is safe throughout pregnancy, the risks do increase as the pregnancy advances. The irreparable harm to Ms. Moe will only increase if Defendants are permitted to continue to delay her ability to access abortion and/or
6

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prevent her from exercising her right to the point where she is forced to carry to term against her will. Ms. Moe will also be irreparably harmed if she is forced to tell (or if Defendants tell) family members, sponsors and other third parties that she is seeking or has obtained an abortion and if she is forced to be further “counseled” by a religious entity in violation of her First Amendment rights. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 15-16 (ECF No. 5-1).
C. The Balance of Harm Strongly Favors Plaintiffs. In contrast to the irreparable harm Ms. Moe faces absent relief, as this Court found in the cases of Jane Doe, Jane Roe and Jane Poe, Defendants “will not be harmed if [a TRO] is issued.” October 18, 2017 Order at 1 (ECF No. 20); see also December 18, 2017 TRO Conclusions of Law ¶ 2 (ECF No. 73). Defendants can have no legal authority to override Ms. Moe’s constitutional right to choose whether to carry a pregnancy to term by prohibiting her from obtaining an abortion absent the “consent” they withhold. Private funds will be used to pay for Ms. Moe’s procedure and shelter staff are ready and willing to transport Ms. Moe to an abortion provider. In other words, once again, the costs are covered, the logistics related to the transfer of will be handled by the shelter, and any necessary post-procedure care will be handled by the shelter in conjunction with Ms. Moe’s medical providers. Once again, Defendants are being asked only to refrain from prohibiting those willing to help Ms. Moe effectuate her constitutional rights from doing so. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 16 (ECF No. 5-1). Accordingly Defendants simply cannot claim – for what would now be the third time – that they suffer any harm from allowing Ms. Moe to access the care that she seeks and to which she is constitutionally entitled. D. A TRO Serves the Public Interest.
Finally, the public interest will be served by issuing a TRO here. “It is always in the
7

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 8 of 9

public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting Abdah v. Bush, No. 04-cv-1254, 2005 WL 711814 at *6 (D.D.C. Mar. 29, 2005)); accord Lamprecht v. F.C.C., 958 F.2d 382, 390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently conflict with the public interest”); see also Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017); Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely, upholding constitutional rights serves the public interest.”); Planned Parenthood Ass’n of City of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (“the public is certainly interested in the prevention of enforcement of ordinances which may be unconstitutional”); Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) (“the public interest … requires obedience to the Constitution”). As in the cases of Plaintiffs Doe, Roe and Poe, there is no conceivable way the public interest will be adversely affected by protecting Ms. Moe’s choice to terminate her pregnancy, the most private and intimate of decisions. Indeed, the opposite is true: The public interest will be served by ending this violation of Ms. Moe’s constitutional rights.
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court issue a temporary restraining order prohibiting the Defendants from continuing to interfere with Jane Moe’s right to obtain an abortion.

DATED: January 11, 2018

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008

8

Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 9 of 9
Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/ Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Elizabeth Gill Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Admitted pro hac vice
Attorneys for Plaintiffs
9

 
 Case 1:17-cv-02122-TSC Document 108 Filed 01/12/18 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated;

)

JANE ROE and JANE MOE on behalf of

)

themselves and others similarly situated;

)

and JANE POE;

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

_________________________________________ )

No. 17-cv-02122-TSC

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

INTRODUCTION

This Court should decline Plaintiff Jane Moe’s request for an order directing the

government to affirmatively facilitate her in obtaining an elective abortion.

First, the government respectfully but firmly disagrees with the en banc decision of the

D.C. Circuit that the government imposes an undue burden on the ability to obtain an abortion

when it declines to facilitate access to abortion services, because a minor alien in HHS custody

has the option of seeking sponsorship or voluntary departure from the United States to her country

of nationality. The government does not burden an alien’s ability to obtain an abortion in any way

when it declines to facilitate elective abortion services for an illegal alien who has been captured

while crossing the border in violation of U.S. law. While we understand this Court is bound by

the en banc ruling, we preserve the issue here for purposes of further review.

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Second, Ms. Moe has not demonstrated a likelihood of success on her claims for injunctive relief even under the erroneous Garza ruling. She contends that as in the case of the other named Plaintiffs, the government “continue[s] to violate binding Supreme Court precedent here by . . . exercising their veto power over Ms. Moe’s constitutionally protected abortion decision by denying her the ability to access abortion.” ECF No. 105-1 at 5 (Plaintiffs’ Memorandum in Support of Application for TRO (“Plaintiffs’ Memorandum”)). But the en banc D.C. Circuit never held that declining to facilitate an abortion for any period during which the Department of Health and Human Services (“HHS”) can seek sponsorship is per se unconstitutional. As Judge Millett wrote for the en banc court, the issue in Ms. Doe’s case was whether the 7-week delay there was “the type of short-term burden that could plausibly pass muster under Supreme Court precedent to bar an abortion.” Garza v. Hargan, 874 F.3d 735, 739 (D.C. Cir. October 24, 2017) (en banc). The implication is that a short delay in certain circumstances would not impose such a burden. This is such a case: the 7 weeks at issue in Ms. Doe’s case stand in stark contrast with the short 2week delay experienced in Ms. Moe’s case, particularly where Ms. Moe’s sponsorship process and reunification are almost complete, as the attached declaration of Jonathan White explains.
Moreover, unlike in Ms. Doe’s case—where the plaintiff obtained a judicial bypass from a Texas state court—there has been no judicial determination that Ms. Moe is sufficiently mature to make her abortion decision. And unlike Ms. Doe, Ms. Moe does not have a guardian ad litem to assure the Court that her interests are being pursued in this litigation. The facts presented here therefore are distinguishable and do not similarly establish a likelihood of success on the merits.
Third, Ms. Moe cannot establish irreparable injury. Ms. Moe’s sponsorship process is near completion, as a potential sponsor has been identified, all the required documentation has been submitted, and all that remains is fingerprinting and a favorable background check. See
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Attachment A at ¶ 4 (Declaration of Jonathan White (“White Decl.”)). Fingerprinting is scheduled for today, and ORR estimates that if the “sponsor attends the scheduled fingerprint appointment, and if the background checks return favorable results, the process of reunification would be completed within one week of the fingerprinting.” Id. Said differently, ORR estimates that Ms. Moe will likely be placed with a sponsor by January 19, 2017, one week from today.
Further, Ms. Moe has provided no evidence that action must be taken in less than one week so as to establish irreparable harm. Her declaration only states that she requested an abortion 2 weeks ago. ECF No. 105-2 (Declaration of Jane Moe (“Jane Moe Decl.”)). Her attorneys represent that she “is already in her second trimester,” Plaintiffs’ Memorandum at 3, but they give no indication of where she is in her second trimester, and Ms. Moe’s declaration sheds no light on the matter. ORR records, however, indicate that Ms. Moe is approximately 17 weeks into her pregnancy, White Decl. ¶ 6, meaning that there is sufficient time for ORR to finalize its sponsorship consideration. It is therefore unnecessary for her to obtain emergency judicial relief this week that would require ORR to facilitate the abortion that she seeks. Given these facts, coupled with Ms. Moe’s ability to seek voluntary departure or a qualified sponsor, the government is not forcing her to carry her pregnancy to term against her will. Rather, granting immediate relief would disrupt the status quo and would irreversibly harm the government’s interest in not facilitating abortion without an opportunity for a full adjudication on the merits.
Finally, the balance of hardships and public interest weigh strongly against the relief that Ms. Moe has requested. The government has strong and constitutionally legitimate interests in promoting its interest in protecting fetal life, in declining to facilitate abortion, and in not providing incentives for pregnant minors to illegally cross the border to obtain elective abortions while in
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federal custody. Those interests would be irreparably undercut if Ms. Moe were granted the relief she seeks.
However this Court rules on the motion, it should do so in a way that preserves the right— of both sides—to seek appellate review. In particular, given the magnitude of the interests in play—including the irreversible nature of abortion—any ruling by this Court on the motion should be stayed pending appeal. Because Ms. Moe is very likely to have a sponsor in the next week, the Court should grant a stay of 10 days (to January 22, 2018). At a minimum, the Court should grant a stay for 1 full business day, to allow the government an opportunity to seek emergency relief from the D.C. Circuit and the Supreme Court. In response to the Court’s minute order, we advise that the Office of Refugee Resettlement (“ORR”) has not issued a decision document regarding Ms. Moe’s abortion request at this time.
BACKGROUND Ms. Moe is a 17-year-old unaccompanied minor who arrived in the custody of ORR on December 22, 2017, White Decl. ¶ 4, and who alleges that she requested an abortion approximately 2 weeks ago. Jane Moe Decl. ¶ 6. Ms. Moe does not provide a precise gestational period in her declaration. Her attorneys only note in the TRO motion that Ms. Moe is “already in her second trimester of pregnancy.” Plaintiffs’ Memorandum at 3. ORR records indicate that Ms. Moe is approximately 17 weeks into her pregnancy, leaving her several weeks pre-viability in which an abortion is legally permissible. White Decl. ¶ 6. Ms. Moe’s “pregnancy was the result of a consensual relationship with her boyfriend, who is 17 years of age[,]” and ORR is “aware of no medical records for J.M. that show a medical indication for her to have an abortion.” White Decl. ¶¶ 7-8.
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Shortly upon her arrival into ORR custody, Ms. Moe “identified a potential sponsor,” and “[t]he prospects for possibly placing her with that sponsor are favorable.” White Decl. ¶ 5. Ms. Moe’s “sponsor has completed all required documentation except submission of fingerprints[,]” which “has been scheduled…on January 12, 2018.” Id. A home study is not required “for this prospective sponsor[,]” and if the sponsor is fingerprinted and “the background checks return favorable results,” then “the process of reunification would be completed within one week of the fingerprinting.” Id.
ARGUMENT The Court should deny Ms. Moe’s request for a TRO. To obtain a TRO, Ms. Moe must establish that: (1) she is “likely to succeed on the merits”; (2) she is “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in [her] favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012). Ms. Moe cannot satisfy any of those requirements, and thus, her request for a TRO should be denied. I. Ms. Moe’s Request for a TRO Should be Denied Because She Cannot Show a Likelihood of Success on the Merits. Ms. Moe’s request for relief fails at the first step because she is unlikely to succeed on the merits of her claims. A. Ms. Moe Has Failed to Demonstrate a Likelihood of Success on the Merits of Her Fifth Amendment Undue-Burden Claim. Under the framework of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the government may pursue its interest in protecting life before fetal viability, provided it does not do so in a manner that imposes an undue burden on the mother. After viability, the government may regulate or even proscribe abortion. Id. at 879. The government does not
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violate the rights outlined in Casey by declining to facilitate an abortion in circumstances like those Ms. Moe presents. Importantly, Ms. Moe’s claim that ORR’s policies violate the Fifth Amendment—and instead that the Constitution in every factual circumstance requires the government to facilitate an elective abortion for all unaccompanied minors that enter the United States—is incorrect. First, under the D.C. Circuit’s en banc decision in Garza, Ms. Moe’s case is distinguishable and no undue burden has been imposed by the Government. Second, while Defendants understand this Court is bound by Garza, we preserve the argument that Garza was wrongly decided for purposes of appeal.
1. Under Garza, Ms. Moe Has Not Shown an Undue Burden Applying the Garza decision, Ms. Moe has not shown that the government has imposed an undue burden. Judge Millett, for the en banc court, held that the ability to find a sponsor in a timely manner played an important role in determining whether there was a right to court ordered facilitation of the abortion by the government. See Garza, 874 F.3d at 738-39 (“centerpiece of the panel order” is the expeditious search for a sponsor and accepting that it is possible some “type[s] of short-term burden . . . could plausibly pass muster under Supreme Court precedent”); see id. at 739 (identifying five factual issues relating to promptly finding a sponsor that may be relevant to the right to court-ordered relief). In weighing these factors, what most troubled the en banc court in Ms. Doe’s case was that the government did not allege that “there was any prospect of finding a sponsor at all,” or that “a non-family member could be identified, vetted, and take custody of J.D. within [the requested] eleven days.” Id. Adding to that factor was the long period of time— 7 weeks—that had passed since Ms. Doe made the decision to obtain an abortion and the length of the sponsorship search. See id. at 739, 741 (“J.D. is already into the second trimester of her pregnancy” and while “sponsorship . . . might be more optimal in the policy sense” for a child to
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make a difficult decision, the search for a sponsor had lasted “almost seven weeks” without a sponsor). This combination of factors, the Court held, rendered any further delay an undue burden.
In contrast, according to her complaint, Ms. Moe only requested an abortion 2 weeks ago and filed her legal claim only yesterday. Jane Moe Decl. ¶ 6. This seems to constitute precisely the type of short delay the en banc Court in Garza deemed did not constitute an undue burden. Indeed, the Supreme Court has approved state law regimes that take longer, once a case is filed, to resolve whether a child may consent to abortion. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990) (acknowledging that bypass “procedure may require up to 22 days in a rare case” and explaining that Court has “upheld a Missouri statute that contained a bypass procedure that could require 17 calendar days plus a sufficient time for deliberation and decisionmaking at both the trial and appellate levels”); id. at 532 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting) (“Ohio’s judicial-bypass procedure can consume up to three weeks of a young woman's pregnancy.”). A fortiori, a short period for ORR to obtain sponsorship rather than a court order for it to facilitate an abortion, is called for here.
Further, Ms. Moe’s sponsorship prospects are significantly different from Ms. Doe’s case. A sponsor has already been identified, and “[t]he prospects for possibly placing her with that sponsor are favorable.” White Decl. ¶ 5. “[T]here is no home study requirement for this prospective sponsor,” and at this point, only a fingerprint appointment scheduled for January 12, 2018 and background checks remain for reunification, which “would be completed within one week of the fingerprinting.” Id. In these circumstances, the government does not impose an undue burden in awaiting the completion of the sponsorship process to avoid the need to facilitate the termination of Ms. Moe’s pregnancy.
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Moreover, and again in contrast to Ms. Doe’s case, no one has determined that Ms. Moe is making a considered and informed decision here. As the Supreme Court has long recognized, “during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” Bellottti v. Baird, 443 U.S. 622, 635 (1979). Unlike Ms. Doe, Ms. Moe does not have a guardian ad litem to assure the Court that her interests are being protected and pursued in this litigation. See Fed. R. Civ. P. 17(b) & (c). And ORR, her current guardian and the only appropriate entity capable of acting on her behalf, see Fed. R. Civ. P. 17(a), has not made a best interest determination given that she only requested an abortion 2 weeks ago, and proceeded to immediately seek judicial relief.
Further, unlike in Ms. Doe’s case where she obtained a judicial bypass from a Texas state court, there has been no similar determination that Ms. Moe, as a 17-year-old minor, is sufficiently mature to make her abortion decision. See Belloti, 443 U.S. at 635. While Ms. Moe is in a state that does not require that determination to be made by a judge, ORR’s mission of protecting the interests of the child is required as a matter of federal law, and some determination is needed to address this issue beyond the minor child’s own independent decision. 6 U.S.C. § 279(b)(1)(A), (B) (stating that ORR’s Director is responsible for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” and for “implementing policies with respect to the care and placement of unaccompanied alien children.”). The Supreme Court has held that “[t]o promote the State’s profound interest in potential life, throughout the pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated so long as their purpose is to persuade the woman to choose childbirth over abortion.” Casey, 505 U.S. at
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878. Given that Ms. Moe has not appeared before a state judge or other impartial body that has ensured her decision is informed, the existence of an informed choice cannot be presumed.
In short, the facts presented here in Ms. Moe’s case are distinguishable from the en banc Court’s decision in Garza, and do not similarly establish a likelihood of success on the merits.
2. The Due Process Clause Does Not Require the Government to Facilitate an Abortion, Given the Government’s Legitimate Interest in Protecting Life and the Ability of an Alien to Request Voluntary Departure to Her Country of Nationality
Defendants again concede that for purposes of this TRO, they are bound by the D.C. Circuit’s October 24, 2017 en banc decision insofar as the law and the facts contained herein are indistinguishable. However, to preserve the issue, Defendants again argue that the government’s refusal to facilitate an elective abortion does not impose an undue burden in violation of the Fifth Amendment. Plaintiffs’ Memorandum at 4-5. Under Casey, the government is entitled to pursue its legitimate interests, provided that it does not impose an “undue burden” on a woman’s choice to terminate her pregnancy before viability. Id. at 870. Plaintiffs cannot show that an alleged ORR policy of protecting fetal life necessarily imposes such an undue burden in every application, or even a large fraction of applications, for one fundamental reason: an alien who illegally crosses the border and is detained pending a determination of whether she will be permitted to remain in the United States retains the power to withdraw her application for admission and request voluntary departure from the United States to return to her home country, cf. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (“An alien in Parra’s position can withdraw his defense of the removal proceeding and return home to his native land, thus ending his detention immediately. He has the keys in his pocket.”), where she would be in the same circumstances she would have been in had she never entered the United States. Unlike Ms. Doe in Garza, Ms. Moe has not put forward any facts relating to her ability to return to her country of nationality or remain in the United States.
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See Garza, 874 F.3d at 740 (in the case of J.D., voluntary departure is “not a constitutionally adequate choice either given both the life-threatening abuse that J.D. claims a . . . and her potential claims of legal entitlement to remain in the United States”).
Given these points, Ms. Moe is incorrect in claiming that the government violated her constitutional rights.
B. Ms. Moe Has not Demonstrated a Likelihood of Success on Her Related Claims. Finally, Ms. Moe has not demonstrated a likelihood of success on her claim that the
government has violated her constitutional rights by providing counseling or including her parents in the decision. Plaintiffs’ Memorandum at 5-6. She asserts that ORR “requires minors to tell parents and/or sponsors about their pregnancies and abortion decisions even if they do not wish to do so—otherwise Defendants will tell those parents and sponsors themselves over the minors’ objections—and compels minors to attend ‘life-affirming’ spiritual counseling.” Id. at 5. This, Ms. Moe claims, violates her free speech rights.
Ms. Moe cannot establish a constitutional speech violation. The government only impermissibly compels speech when it forces a speaker to convey a message and “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Rumsfeld v. FAIR, 547 U.S. 47, 63 (2006); see Nat’l Assoc. of Manufacturers v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (a “compelled-speech violation’ occur[s] when ‘the complaining speaker’s own message was affected by the speech it was forced to accommodate’”); see also Nat’l Assoc. of Manufacturers v. SEC, 800 F.3d 518, 521-23 (D.C. Cir. 2015) (collecting compelled speech cases). It is not compelled speech when the individual is not required to say anything. Snyder v. Phelps, 562 U.S. 443, 458 (2011) (The First Amendment contemplates that listeners may be exposed to messages that “in someone’s eyes are misguided.”).
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HHS serves in the role of the child’s legal custodian and is directed to place UACs “in the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while in HHS custody—that is, until they are released to a suitable sponsor, obtain lawful status or leave the country and thus are no longer unlawfully present. See 6 U.S.C. § 279(g); 8 U.S.C § 1232(b)(1), (g). HHS provides an extensive amount of speech to UACs: on-campus schooling, regular psychological counseling as needed, regular case management and social work discussions, as well as information about their medical care. When caring for a child’s medical needs, HHS exercises custodial responsibility, and in these circumstances must consider child welfare. In addressing the UAC’s welfare, and more specifically, the needs of a pregnant minor, ORR provides pregnancy counseling in this custodial capacity. Ms. Moe is not forced to engage in discourse, or respond to any inquiries, and may remain completely silent during any such counseling. The Supreme Court and various lower courts thereafter have recognized that the government imposes no undue burden or First Amendment violation when it requires the provision of specific, and often extensive, information prior to an abortion. See, e.g., Casey, 505 U.S. at 881–84. ORR’s decision to provide options counseling and information before an abortion, from ORR’s grantees’ own medical and counseling professionals, is sustainable on the same grounds.
For these reasons, Ms. Moe’s compelled-speech claim has no likelihood of success. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”).
* * * Accordingly, Ms. Moe has failed to demonstrate a likelihood of success on the merits of her claims.
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II. Ms. Moe Has Not Established that a TRO Is Needed to Prevent Irreparable Harm. Ms. Moe cannot obtain relief for the independent reason that she has not established
irreparable harm. Ms. Moe contends that, unless this Court grants the TRO, she will face the irreparable injury of being forced to carry the pregnancy to term against their will. Plaintiffs’ Memorandum at 6-7.
Ms. Moe’s claimed injury provides no basis for the injunctive relief that she seeks. The issue before this Court is not whether Ms. Moe will have to carry a pregnancy to full term, but rather whether she can obtain a court order requiring ORR to facilitate her abortion as early as this week. Ms. Moe has provided no evidence of where she is in her pregnancy to establish irreparable harm, only stating that she requested an abortion 2 weeks ago. Jane Moe Decl. ¶ 6. Her attorneys only state that she “is already in her second trimester.” Plaintiffs’ Memorandum at 3. ORR records, however, indicate that Ms. Moe is approximately 17 weeks into her pregnancy, White Decl. ¶ 6, and Ms. Moe has failed to demonstrate that the state she is in presents any special reason for expedited action. Ms. Moe therefore has weeks, not a few days, before viability.
Moreover, a sponsor has already been identified, and as explained above, the prospects for expeditious placement are quite favorable given that: (1) no home study is required; (2) fingerprinting and background checks are scheduled for January 12, 2018; and (3) reunification “would be completed within one week of fingerprinting.” White Decl. ¶ 5. In these circumstances, there is little harm to Ms. Moe in awaiting the completion of the sponsorship process to avoid the need to facilitate the termination of Ms. Moe’s pregnancy, and the Garza majority recognized a preference that such decisions be made with a sponsor rather than while in government custody. Garza, 874 F.3d at 739. This is particularly true here, where Ms. Moe has refused to consult with her parents. She need not compel the government to facilitate her abortion this week to vindicate
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the right that she claims. Because Ms. Moe’s pregnancy is still weeks away from viability, she will not be irreparably injured if she does not obtain effectively irreversible relief now, and the Supreme Court has noted evidence that having an abortion during the second trimester is unlikely to increase existing risks. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2311 (2016); Gonzales, 550 U.S. at 164. Granting immediate relief would disrupt the status quo and irreversibly harm the government’s strong interests in not facilitating the termination of fetal life without an opportunity for a full adjudication on the merits. III. The Balance of Hardships and Public Interest Weigh Against Ms. Moe’s Request for
Relief. The balance of the hardships and the public interest weigh against granting Ms. Moe’s motion. The government has a legitimate and significant interest in ensuring that it does not affirmatively facilitate an abortion. That interest would be completely extinguished if Ms. Moe’s motion is granted and the government is required to facilitate an abortion this week or the next. The public interest also weighs against incentivizing illegal immigration by compelling the federal government to facilitate an unaccompanied alien child’s request for an elective abortion. Cf. Landon v. Plsencia, 459 U.S. 21, 34 (1982) (“The government's interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.”). IV. Any Ruling by this Court Should Allow Time for Appellate Review. Defendants request that any disposition by the Court permit the unsuccessful party sufficient time to vindicate its position through emergency appeal. If the Court issues a TRO, given the magnitude of the interests in play—including the irreversible nature of abortion—any ruling by this Court on the motion should be stayed pending appeal. Because Ms. Moe is only 17
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weeks pregnant and is very likely to have a sponsor soon, the Court should grant a stay of 10 days,

until January 22, 2018. At a minimum, the Court should grant a stay for 1 full business day, to

allow the government an opportunity to seek emergency relief from the D.C. Circuit and the

Supreme Court. In response to the Court’s minute order, we advise that ORR has not issued a

decision document regarding Ms. Moe’s abortion request at this time.

CONCLUSION

For the foregoing reasons, the Court should deny Ms. Moe’s request for a temporary

restraining order.

DATED: January 12, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

AUGUST E. FLENTJE Special Counsel Office of Immigration Litigation

ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

Attorneys for Defendants

BY: /s/ W. Daniel Shieh W. DANIEL SHIEH SABATINO F. LEO Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-9802 Fax: (202) 305-1890 daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov

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 Case 1:17-cv-02122-TSC Document 105-1 Filed 01/11/18 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFF JANE MOE’S MEMORANDUM IN SUPPORT OF HER APPLICATION FOR A TEMPORARY RESTRAINING ORDER PRELIMINARY STATEMENT
Jane Moe seeks a temporary restraining order (TRO) to prohibit the federal government from denying her the ability to access abortion. Jane Moe is a 17-year-old unaccompanied immigrant minor who is currently in the federal government’s legal custody, living in a government-funded shelter.1 Ms. Moe is pregnant and resolute in her desire to have an abortion. Nevertheless, as a result of Defendants’ sustained enforcement of their policy of ensuring that all pregnant minors in their custody continue their pregnancies, even against their will, Ms. Moe is being prevented from exercising her constitutionally protected decision.
Ms. Moe first requested access to abortion approximately two weeks ago. Ex. 1, Decl. of Jane Moe ¶ 6. To date, however, Defendants have not permitted Ms. Moe’s shelter to allow Ms. Moe to access abortion. Id. ¶ 7. Absent an immediate TRO, Ms. Moe will be pushed further into

1 Plaintiffs’ motion for Ms. Moe to proceed using a pseudonym to protect her privacy has been filed simultaneously with this motion.

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her pregnancy, increasing the risks associated with the abortion procedure, and, if the Court does not intervene, Ms. Moe will be forced to carry to term against her will.
This Court has now considered the parties’ arguments as to the Plaintiffs’ likelihood of success in their constitutional challenge to Defendants’ no-abortion policy twice. It has twice balanced the irreparable harm to a minor from being unduly delayed and/or blocked from effectuating her abortion decision, against any alleged harm to Defendants, and twice considered the public interests at stake. Having done all of this, this Court has issued two TROs – one to prevent Defendants from interfering or obstructing Plaintiff Jane Doe’s access to abortion and another to prevent Defendants from interfering or obstructing Plaintiffs Jane Roe’s and Jane Poe’s access to abortion. See October 18, 2017 Order (ECF No. 20); December 18, 2017 Order (ECF No. 73). The same factors that counseled in favor of granting relief to Ms. Doe, Ms. Roe and Ms. Poe support doing the same with respect to Ms. Moe. Accordingly, Plaintiffs respectfully request that this Court similarly issue an immediate, emergency temporary injunction prohibiting Defendants from obstructing or interfering with Ms. Moe’s ability to exercise her fundamental right to obtain an abortion.
FACTUAL BACKGROUND In March of 2017 Defendants established a policy of prohibiting all federally funded shelters from “taking ‘any action that facilitates’ abortion access for unaccompanied minors absent ‘direction and approval from the Director of the ORR.’” See Findings of Fact in Supp. of Amended TRO ¶ 5 (ECF No. 30); December 18, 2017 Order, Findings of Fact ¶ 9 (ECF No. 73) (noting that the Defendants’ policy of prohibiting shelters from “taking ‘any action that facilitates’ abortion access for unaccompanied minors absent ‘direction and approval from the Director of the ORR’ . . . remain[ed] in effect at [that] time with respect to Jane Roe and Jane
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Poe”); id. at Conclusions of Law ¶ 1 (“ORR continues to claim—and in the case of J.P., has actually exercised—ultimate authority to unilaterally veto the reproductive choices of the unaccompanied minors in its custody.”).2 Defendants are once again applying this policy, this time to prevent Jane Moe from exercising her constitutionally protected right.
Ms. Moe is 17 years old and arrived in the U.S. from her home country without her parents. See Ex. 1, Decl. of Jane Moe ¶¶ 2-3. She has been placed in ORR-funded shelter. Id. ¶ 4. Ms. Moe first requested access to abortion approximately two weeks ago. Id. ¶ 6. Despite this request, and her continued insistence that she wants an abortion, Defendants have refused to grant consent for her shelter to provide her with access to an abortion provider. Id. ¶ 7.
Defendants’ actions have already caused Ms. Moe to delay her abortion by approximately two weeks. Ms. Moe is already in her second trimester of pregnancy; any further delay increases the risks to her health as well as the risk that she will ultimately be stripped of her constitutional right to abortion entirely. Accordingly, time is once again of the essence. Given this, and that this Court is now extremely familiar with the issues presented in the TRO, Plaintiffs respectfully request that this Court decline to hold oral argument and issue an order prohibiting Defendants from forcing Ms. Moe to remain pregnant against her will for any longer. Of course, should the Court decide argument is helpful, Plaintiffs’ counsel will make themselves available at any time of the Court’s convenience.
ARGUMENT To obtain a preliminary injunction or temporary restraining order, a plaintiff must establish (1) “that [s]he is likely to succeed on the merits,” (2) “that [s]he is likely to suffer
2 Plaintiffs incorporate by reference the facts submitted in support of their prior Applications for a TRO and their Motion for a Preliminary Injunction (ECF Nos. 3, 5, 63).
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irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [her] favor,” and (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Singh v. Carter, 168 F. Supp. 3d 216, 223 (D.D.C. 2016). Courts in this Circuit have traditionally applied these factors on a “sliding scale,” where a stronger showing on some factors can compensate for a weaker showing on others. See, e.g., Davenport v. Int’l Brotherhood of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). It has been suggested, but not decided, that a likelihood of success on the merits may be required. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (citing Winter, 555 U.S. at 20-22). Under either approach, Plaintiffs make the necessary showing here.
I. Plaintiff Jane Moe Is Likely to Succeed on the Merits of Her Claims. A. Defendants’ Conduct Violates Jane Moe’s Fifth and First Amendment Rights. 1. Defendants Cannot Prevent Jane Moe From Accessing Abortion.
As in the cases of Jane Doe, Jane Roe and Jane Poe, Roe v. Wade, 410 U.S. 113 (1973) and its progeny, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016), control here. These Supreme Court cases make clear that government may not place a “substantial obstacle” in the path of women seeking abortion. Whole Woman’s Health, 136 S. Ct. at 2309. Defendants’ policy of blocking minors’ from accessing abortion goes beyond imposing a substantial obstacle—it outright prohibits minors from exercising their right to decide to terminate their pregnancies before viability. Such a prohibition is blatantly unconstitutional under binding Supreme Court precedent. See, e.g., Casey, 505 U.S. at 871 (a “woman’s right to terminate her pregnancy before viability” is “a rule of law and a component of liberty we cannot renounce”).
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Defendants continue to violate binding Supreme Court precedent here by refusing to allow Ms. Moe to obtain an abortion. As with Ms. Doe, Ms. Roe and Ms. Poe, Defendants are exercising their veto power over Ms. Moe’s constitutionally protected abortion decision by denying her the ability to access abortion. As with Ms. Doe, Ms. Roe and Ms. Poe, there is no reason that remotely passes constitutional muster for Defendants to be doing so. Nevertheless, Defendants persist in enforcing their blatantly unconstitutional policy against Ms. Moe, refusing to permit her to access abortion care in direct violation of the Fifth Amendment.
2. Defendants Cannot Force Jane Moe To Disclose (Or Disclose Themselves) Her Pregnancy And Abortion Decision to Others Without Her Consent.
As Plaintiffs have explained, Defendants’ infringement of minors’ constitutional rights goes beyond blocking their ability to access abortion. Defendants’ policy also requires minors to tell parents and/or sponsors about their pregnancies and abortion decisions even if they do not wish to do so—otherwise Defendants will tell those parents and sponsors themselves over the minors’ objections—and compels minors to attend “life-affirming” spiritual counseling. See, e.g., Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Exs. A-I to Decl. of B. Amiri in Supp. of TRO & Prelim. Inj. (ECF Nos. 5-3 – 5-12); Pl.’s Mot. for Class Cert. (ECF No. 18); Pl.’s Reply in Supp. of Class Cert. (ECF No. 56); Pls.’ Roe & Poe Mem. in Supp. of App. for TRO (ECF No. 63-1). As set forth in Plaintiffs’ prior briefings, these aspects of Defendants’ policy also violate minors’ Fifth and First Amendment rights. Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 11-14 (ECF No. 5-1); Pls.’ Roe & Poe Mem. in Supp. of App. for TRO (ECF No. 63-1).
Pursuant to Defendants’ policy, Ms. Moe has already been taken to a “crisis pregnancy center” to discuss her pregnancy. See Second Amended Complaint ¶ 28. Upon information and belief, pursuant to Defendants’ policy, Defendants are also seeking to require Ms. Moe to
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disclose her pregnancy and abortion decision to her parents, despite her strong desire that this information be kept confidential. Id. ¶ 29. Given that Defendants continue to enforce their unconstitutional policy against pregnant minors in their care, Ms. Moe also faces the risk that Defendants will disclose her private information to her parents or potential sponsor themselves, over her objection and without her consent. Accordingly, like Plaintiffs Jane Doe, Jane Roe and Jane Poe before her, Plaintiff Jane Moe is likely to succeed on her Fifth and First Amendment claims.
B. Jane Moe Will Suffer Irreparable Injury Unless Defendants Are Enjoined. Ms. Moe will suffer immediate and irreparable harm if this Court does not require Defendants to provide her with immediate access to the abortion care she seeks. As Plaintiffs have explained, time is “of the essence in an abortion decision.” H.L. v. Matheson, 450 U.S. 398, 412 (1981); see Pl.’s Mem. in Supp. of TRO & Prelim Inj. 14-15 (ECF No. 5-1). This is both because the medical risks associated with the abortion procedure increase as the pregnancy progresses and because delaying a woman from accessing abortion care past a certain point in her pregnancy will strip her of her right to choose entirely. See Pl.’s Mem. in Supp. of TRO & Prelim Inj. 14-15 (ECF No. 5-1); Williams v. Zbaraz, 442 U.S. 1309, 1314–15 (1979) (Stevens, J., sitting as Circuit Justice) (increased risk of “maternal morbidity and mortality” supports claim of irreparable injury). Just as Plaintiffs Doe, Roe and Poe did, Ms. Moe faces irreparable harm if she is not granted the relief she seeks. Each day that goes by is another day that Ms. Moe is forced by Defendants to remain pregnant against her will. Although abortion is safe throughout pregnancy, the risks do increase as the pregnancy advances. The irreparable harm to Ms. Moe will only increase if Defendants are permitted to continue to delay her ability to access abortion and/or
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prevent her from exercising her right to the point where she is forced to carry to term against her will. Ms. Moe will also be irreparably harmed if she is forced to tell (or if Defendants tell) family members, sponsors and other third parties that she is seeking or has obtained an abortion and if she is forced to be further “counseled” by a religious entity in violation of her First Amendment rights. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 15-16 (ECF No. 5-1).
C. The Balance of Harm Strongly Favors Plaintiffs. In contrast to the irreparable harm Ms. Moe faces absent relief, as this Court found in the cases of Jane Doe, Jane Roe and Jane Poe, Defendants “will not be harmed if [a TRO] is issued.” October 18, 2017 Order at 1 (ECF No. 20); see also December 18, 2017 TRO Conclusions of Law ¶ 2 (ECF No. 73). Defendants can have no legal authority to override Ms. Moe’s constitutional right to choose whether to carry a pregnancy to term by prohibiting her from obtaining an abortion absent the “consent” they withhold. Private funds will be used to pay for Ms. Moe’s procedure and shelter staff are ready and willing to transport Ms. Moe to an abortion provider. In other words, once again, the costs are covered, the logistics related to the transfer of will be handled by the shelter, and any necessary post-procedure care will be handled by the shelter in conjunction with Ms. Moe’s medical providers. Once again, Defendants are being asked only to refrain from prohibiting those willing to help Ms. Moe effectuate her constitutional rights from doing so. See Pl.’s Mem. in Supp. of TRO & Prelim. Inj. 16 (ECF No. 5-1). Accordingly Defendants simply cannot claim – for what would now be the third time – that they suffer any harm from allowing Ms. Moe to access the care that she seeks and to which she is constitutionally entitled. D. A TRO Serves the Public Interest.
Finally, the public interest will be served by issuing a TRO here. “It is always in the
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public interest to prevent the violation of a party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012) (quoting Abdah v. Bush, No. 04-cv-1254, 2005 WL 711814 at *6 (D.D.C. Mar. 29, 2005)); accord Lamprecht v. F.C.C., 958 F.2d 382, 390 (D.C. Cir. 1992) (“a [government] policy that is unconstitutional would inherently conflict with the public interest”); see also Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017); Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“Surely, upholding constitutional rights serves the public interest.”); Planned Parenthood Ass’n of City of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (“the public is certainly interested in the prevention of enforcement of ordinances which may be unconstitutional”); Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) (“the public interest … requires obedience to the Constitution”). As in the cases of Plaintiffs Doe, Roe and Poe, there is no conceivable way the public interest will be adversely affected by protecting Ms. Moe’s choice to terminate her pregnancy, the most private and intimate of decisions. Indeed, the opposite is true: The public interest will be served by ending this violation of Ms. Moe’s constitutional rights.
CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that this Court issue a temporary restraining order prohibiting the Defendants from continuing to interfere with Jane Moe’s right to obtain an abortion.

DATED: January 11, 2018

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 4301 Connecticut Avenue NW, Suite 434 Washington, D.C. 20008

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Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org
/s/ Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org
Elizabeth Gill Mishan R. Wroe American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org mwroe@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Admitted pro hac vice
Attorneys for Plaintiffs
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 Case 1:17-cv-02122-TSC Document 116 Filed 02/01/18 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated;

)

JANE ROE and JANE MOE on behalf of

)

themselves and others similarly situated;

)

and JANE POE,

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN,1 et al.,

)

)

Defendants.

)

)

_________________________________________ )

No. 17-cv-02122-TSC

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. PRO. 12(b)(1) AND 12(b)(6)

The Defendants, Eric Hargan, Steven Wagner,2 and Scott Lloyd, in their official

capacities (“the United States”), hereby move to dismiss Plaintiffs’ Second Amended Complaint

for Injunctive Relief (ECF No. 104) (“Second Amended Complaint”) pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6). Plaintiffs Jane Doe (“Ms. Doe”), Jane Roe (“Ms. Roe”), Jane Poe (“Ms.

Poe”) and Jane Moe (“Ms. Moe”) allege that the U.S. Department of Health and Human Services

(“HHS”) Office of Refugee Resettlement (“ORR”) has adopted a policy of responding to

requests for elective abortions that poses an undue burden on the Plaintiffs’ access to abortion

procedures under the Fifth Amendment; compels them to speak in violation of the First

1 Defendants respectfully request that this Court hereby substitute Secretary of Health & Human Services Alex M. Azar II, for Eric D. Hargan, the former Acting Secretary of Health & Human Services pursuant to Fed. R. Civ. P. 25(d) (“The officer’s successor is automatically substituted as a party.”). 2 The proper spelling of Defendant, Steven Wagner.
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Amendment; and favors religion in a manner that violates the Establishment Clause. Based on those allegations, Plaintiffs’ Second Amended Complaint alleges four claims on behalf of themselves and a putative class, seeking equitable relief based on alleged violations of: (1) Fifth Amendment interests in privacy and liberty (Count 1); (2) First Amendment freedom of speech (Count 2); (3) Fifth Amendment “informational privacy” (Count 3); (4) and the Establishment Clause (Count 4). ECF No. 104 at 15-17, ¶¶ 70-78. 3
Those claims are moot. Ms. Doe has had an abortion (ECF No. 53 at 6) and has been released from ORR care (ECF No. 115-1 at 2); Ms. Poe has had an abortion (ECF No. 94 at 1); Ms. Roe is an adult who has been released from DHS custody on her own recognizance and has had an abortion (ECF Nos. 84 at 2, No. 94 at 1); and Ms. Moe has been released from ORR custody to her sponsor (ECF No. 113-1 at ¶ 4, ECF No. 114). Consequently, none of the plaintiffs alleges a live case or controversy, and none fits within any exception to mootness. The putative class claims do not save the case from mootness either. A class action that has not been certified generally will become moot once the named plaintiff’s claims no longer present a live controversy. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013). Here, no class was certified at the time that each of the named representatives’ claims became moot,4 and the case does not fit within any exception that would permit a certification decision at this stage to relate back to a time when there existed a controversy. As a result, there is no live controversy before this Court on those issues, and Plaintiffs’ Second Amended Complaint should be dismissed for lack of jurisdiction.
3 Plaintiffs have dropped their claims against Defendants in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 4 The Second Amended Complaint specifically excludes Ms. Poe as a class representative. ECF No. 104 at 14, ¶ 62.
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In any event, Plaintiffs’ claims are without merit. ORR has adopted reasonable policies that are fully consistent with the Constitution, and designed to preserve the government’s interest in life and in avoiding the active facilitation of elective abortions. Such policies do not impose any undue burden on the ability of an alien arriving at our border to obtain an abortion. Any alleged obstacle to an alien’s ability to obtain an abortion exists only by virtue of the alien’s own choices: an alien is in federal custody only as a result of entering the United States illegally, and remaining in custody (rather than returning home) is a self-imposed obstacle, not an obstacle imposed by the government. Plaintiffs cannot show that the challenged policies violate the Constitution in every application, in a large fraction of applications, or indeed in any application. Rather, they are policies appropriate for handling the difficult circumstances presented when a noncitizen illegally enters this country and then seeks to obtain an elective abortion within this country as a minor in the care of the federal government. It is appropriate for ORR to provide pregnancy counseling in its custodial capacity. It is critically important to involve the minor’s parents in her home country when possible. And it is appropriate that the Director of ORR, while charged with their custody, be involved in this decision-making. It is black-letter law that the United States may pursue its legitimate interest in promoting life and in not taking any action to facilitate an abortion. Non-facilitation does not impose an undue burden given that an illegal alien in government custody has the option to return to her country of nationality. And it certainly is not an undue burden in a large fraction of applications, given the ability to go home, as well as the opportunity for release to a sponsor or parent. Nor do these policies work an establishment of religion. Finally, the D.C. Circuit’s preliminary ruling does not preclude dismissal here. Accordingly, these class action claims that the policies are invalid on their face must be dismissed.
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BACKGROUND I. Background Facts And Proceedings This case is about the procedures that ORR follows when caring for UACs under its watch. Each year, ORR cares for thousands of UACs who are mostly from countries that prohibit or restrict abortion. Only a small number of those UACs are pregnant, and an even smaller number request abortions while in ORR custody. ORR is charged with considering the interests of each pregnant UAC when providing care and resolving any request for an abortion. This case arises from the efforts of Ms. Doe, Ms. Poe, Ms. Roe and Ms. Moe to compel Defendants to approve and implement their requests for abortions.5 Ms. Doe is an 18-year-old alien adult who entered the country illegally when she was 17 years old, and was apprehended and placed in the care and custody of ORR in Texas. ECF No. 10 at 3. While in the care and custody of ORR, Ms. Doe requested an elective abortion. Id. She obtained a judicial bypass of Texas’ parental notification and consent requirement from a Texas state court. Id. HHS policy requires that ORR approve all terminations of pregnancy for minors in its custody. Id. at 4. ORR, acting in this custodial capacity, denied Ms. Doe’s request to obtain an abortion and to be transported from her shelter so that she could attend the abortion and associated appointments. Id. at 5. On October 13, 2017, Ms. Doe and her guardian filed this suit as a putative class action on behalf of herself and “all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant.” 6 ECF No. 1 ¶ 47. Ms. Doe requested a
5 Defendants incorporate by reference the factual and procedural background from their prior briefing. ECF No. 10 at 3-7, ECF No. 53 at 4-6, ECF No. 66 at 3-4, ECF No. 108 at 4-5. 6 The Second Amended Complaint filed with this Court suggests a class “of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” ECF No. 104 at ¶ 62. However, in their motion
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Temporary Restraining Order (“TRO”) and Preliminary Injunction (“PI”), releasing Ms. Doe to obtain abortion counseling and an abortion if she so elected. ECF Nos. 3, 5. On October 18, 2017, Ms. Doe filed her Motion to Certify a Class, ECF No. 18, requesting the Court to certify a class of “of all pregnant [UACs] who are or will be in the legal custody of the federal Government.” Id. at 1.
On October 18, 2017, this Court granted Ms. Doe’s request for a TRO. ECF No. 20. The United States appealed and initially obtained a stay of the TRO from a panel of the U.S. Court of Appeals for the D.C. Circuit. But the en banc D.C. Circuit subsequently dissolved the stay, essentially affirming the injunction, Garza v. Hargan, No. 17-5236 (Oct. 24, 2017) (recalling mandate), and remanded the case to this Court. In compliance with this Court’s order, ECF No. 29, the United States released Ms. Doe to the care of her guardian ad litem for transportation to an abortion provider. On October 25, 2017, Ms. Doe reportedly underwent an abortion.7 Id. On January 15, 2018, Ms. Doe was released from ORR’s care into the custody of a sponsor. ECF No. 115-1.8
On December 15, 2017, Plaintiffs filed a consent motion for leave to amend the complaint, seeking to add Ms. Roe as an additional plaintiff and class representative, and Ms. Poe as an additional plaintiff. See ECF No. 61; ECF No. 83. Ms. Poe is a 17-year-old
requesting class certification, Plaintiffs set forth a putative class of “all pregnant unaccompanied immigrant minors [‘UCs’] who are or will be in the legal custody of the federal Government.” ECF No. 18 at 1-2 (bracket in original); See ECF No. 65 and ECF No. 107. 7 See Jackie Wang, “Unauthorized immigrant minor ‘Jane Doe’ has abortion after back-and-forth court battle,” Dallas Morning News, https://www.dallasnews.com/business/healthcare/2017/10/25/undocumented-teen-texas-abortion (last updated Oct. 25, 2017). 8 On November 3, 2017, the United States filed a petition for certiorari, asking that the Supreme Court vacate the judgment of the Court of Appeals, and remand this case with instructions to dismiss all claims for prospective relief as moot. That petition remains pending before the Supreme Court.
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unaccompanied minor currently in ORR custody. ECF No. 66-1 (December 16, 2017 Jonathan White Decl.) at ¶ 4. At the time of her placement into ORR custody Ms. Poe “was estimated to be approximately 9 weeks pregnant,” though it subsequently became clear her pregnancy was much further along. Id. at ¶ 5. Ms. Poe contemplated an abortion shortly after entering ORR custody. But after voluntarily informing her parents, Ms. Poe indicated to ORR on December 4, 2017, that “she no longer requested an abortion.” Id. Thereafter, Ms. Poe changed her mind again and requested an abortion. Id. Ms. Roe presented herself as a 17-year-old unaccompanied minor and was also initially placed in ORR custody. ECF No. 63-2 (December 14, 2017 Jane Roe Decl.) at ¶¶ 3- 4. Ms. Roe learned she was pregnant during a medical examination provided while in ORR custody and also requested an abortion. Id. at 5. Plaintiffs contended that Defendants had refused to allow Ms. Roe and Ms. Poe abortion access. ECF No. 61 at ¶ 1.
Contemporaneously with the filing of their First Amended Complaint, Ms. Roe and Ms. Poe sought a TRO to prohibit the government from blocking them from obtaining an abortion. ECF No. 63-1. The government opposed the TRO, ECF No. 66, and on December 18, 2017, this Court granted the TRO. ECF No. 73. Initially, Defendants filed an emergency motion for stay pending appeal with the D.C. Circuit seeking an order staying application of the TRO as to Ms. Roe.9 See Garza v. Hargan, No. 17-5276 (D.C. Cir. 2017), D.C. Cir. ECF No. 1709385. After the government obtained a copy of Ms. Roe’s birth certificate from her home country indicating that Ms. Roe was actually 19 years old — and thus not properly within ORR’s custody — it immediately began the process of transferring Ms. Roe into DHS custody as an adult. Garza v. Hargan, No. 17-5276 (D.C. Cir. 2017), D.C. Cir. ECF No. 1709677 at 1-2. Once the transfer
9 Because of the differing circumstances surrounding Ms. Poe’s case, the government did not seek a stay of the TRO as it related to Ms. Poe. Garza v. Hargan, No. 17-5276 (D.C. Cir. 2017), D.C. Cir. ECF No. 1709385 at 1.
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was complete, Defendants moved to voluntarily dismiss its appeal in the D.C. Circuit, which the court granted. Garza v. Hargan, No. 17-5276 (D.C. Cir. 2017), D.C. Cir. ECF Nos. 1709679 and 1709941. On December 19, 2017, Ms. Roe was released on her own recognizance and is no longer in government custody. Id.; see 8 U.S.C § 1232(c)(2)(B). According to news reports, both Ms. Poe and Ms. Roe have obtained abortions.10
On January 11, 2018, Plaintiffs filed the Second Amended Complaint adding Ms. Moe as a plaintiff. ECF No. 104. Ms. Moe is a 17-year-old unaccompanied minor who arrived in the custody of ORR on December 22, 2017, (ECF No. 108-1 (January 11, 2018 Jonathan White Decl.) at ¶ 4), and who alleges that she requested an abortion approximately four days following her placement with ORR, (ECF No. 105-2 (January 10, 2018 Jane Moe Decl.) at ¶ 6). ORR records indicated that Ms. Moe was approximately 17 weeks into her pregnancy when the Second Amended Complaint was filed. ECF Mo. 108-1 (January 11, 2018 Jonathan White Decl.) at ¶ 6. Shortly upon her arrival into ORR custody, Ms. Moe “identified a potential sponsor,” and “[t]he prospects for possibly placing her with that sponsor [we]re favorable.” Id. at ¶ 5.
Contemporaneously with the filing of their Second Amended Complaint, Ms. Moe sought a TRO to prohibit the government from blocking her from obtaining an abortion. The government opposed the TRO. While the motion for a TRO was pending, Ms. Moe’s sponsor completed all required documentation, including the submission of fingerprints and the completion of all background checks, and on January 14, 2018, Ms. Moe was released to the custody of her sponsor. ECF No. 114.
10 See http://www.latimes.com/politics/la-na-pol-abortion-trump-migrant-20171221-story.html. 7

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II. Statutory Framework Governing ORR Custody Of Unaccompanied Alien Minors
Congress generally has mandated that non-admitted aliens attempting to enter the country without valid entry documentation be detained for expedited removal, credible fear proceedings, and/or potentially to establish eligibility for admission or relief from removal. See 8 U.S.C. § 1225(b)(1), (b)(1)(B)(ii), (b)(1)(B)(iii)(IV), & (b)(2)(A). The only statutory mechanism to obtain release from such detention pending a determination on admission is discretionary parole, which is granted on a “case-by-case basis” for “urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Discretionary parole is available in credible fear proceedings where release “is required to meet a medical emergency.” 8 C.F.R. § 235.3(b)(2)(iii). At the same time, an alien has the ability to request voluntary departure at any time. See 8 U.S.C. §§ 1232(c)(3), (c)(5), 1229c. Indeed, aliens apprehended after approaching or attempting illegally to cross the border into the United States are “aliens at the threshold of initial entry,” and have no right to obtain admission to the United States in lawful status. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
Congress has also set forth special admissions and custody provisions for unaccompanied alien minors arriving in the United States through the Trafficking Victims Prevention Reauthorization Act (“TVPRA”), Pub L. No. 110-457, 122 Stat. 5044 (principally codified in relevant part at 8 U.S.C. § 1232), which places the care and custody of UACs with HHS. 8 U.S.C § 1232(b)(1). The TVPRA was enacted “to enhance the efforts of the United States to prevent trafficking in persons,” and reflects the legislative goal of ensuring that UACs “are safely repatriated to their country of nationality or of last habitual residence” to avoid incentives that would lead to alien smuggling and dangerous travel for minor children. 8 U.S.C. § 1232(a). A UAC is a person under age 18 who lacks lawful immigration status in the United States and
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for whom (a) no parent or legal guardian is in the United States, or (b) no parent or legal guardian is available to provide care and physical custody. 6 U.S.C. § 279(g)(2). UACs apprehended at the border from contiguous countries may be repatriated if there is no evidence they have been trafficked, they do not have a credible fear of persecution or torture in their home country, and they are capable of making an independent decision to withdraw their application for admission to the United States. Id. § 1232(a)(2)(A)-(B). Children who meet any of those criteria — which speak to bases for applying for admission or relief from removal — or who are from noncontiguous countries are placed into HHS custody. See id. § 1232(a)(3)-(4), (a)(5)(D), (d)(8). UACs are not eligible for expedited removal proceedings; those from contiguous countries receive a similar screening for credible fear prior to rapid repatriation, see 8 U.S.C. § 1232(a)(2), while those from noncontiguous countries or those passing such a screening are placed into full removal proceedings under 8 U.S.C. § 1229a if charged as removable by DHS. See id. § 1232(a)(5)(D).
Congress charged HHS with serving in the role of the child’s legal custodian. As part of that role, HHS is directed to place UACs “in the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while in HHS custody—that is, until they are released to a suitable sponsor, obtain lawful status, or leave the country.11 See 6 U.S.C. § 279(g); 8 U.S.C
11 Once a UAC attains age 18, she is also by definition no longer a UAC and thus no longer entrusted to HHS custody. Such minors are transferred to DHS custody, which then is directed to consider placement in the “least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” 8 U.S.C § 1232(c)(2)(B). The statute also provides that “such aliens shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the alien’s need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.” Id.
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§ 1232(b)(1), (g). In placing children in the least restrictive setting, HHS also “consider[s] danger to self, danger to the community, and risk of flight.” Id.
Within HHS, ORR is responsible for the care and placement of UACs who enter the United States illegally and are “in federal custody by reason of their immigration status.” 6 U.S.C. § 279(b)(1)(A). ORR’s Director is responsible for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” and for “implementing policies with respect to the care and placement of unaccompanied alien children.” Id. § 279(b)(1)(A), (B). As part of Congress’s efforts to protect the child, federal law provides that the Director “shall not release” unaccompanied minor children “upon their own recognizance.” Id. § 279(b)(2)(B). Organizations that provide shelter and services to unaccompanied minor children do so at ORR’s direction and in compliance with ORR policies and procedures. See ECF No. 10-1. Notably, and in line with this standard, ORR mandates that personnel obtain necessary medical treatment for UACs faced with medical emergencies, including transporting them offsite where necessary. See U.S. Department of Health and Human Services, ORR Guide: Children Entering the United States Unaccompanied (“ORR Guide”) at § 3.4.5, https://www.acf.hhs.gov/orr/resource/children-entering-the-unitedstates-unaccompanied (last visited January 22, 2018) (providing, in cases of “medical emergencies,” defined as “a serious medical condition caused by injury, illness, or toxic exposure that is life threatening in nature,” that UAC may be transported to off-site medical care provider and accommodations made to “implement treatment recommendations”). The ORR Guide also addresses certain routine care, certain family planning services, medical examinations, appropriate mental health care, immunizations, and prescribed medications and
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special diets, but does not address elective serious medical procedures, outside of an emergency. See ORR Guide at § 3.4.
Additionally, HHS procedure provides several mechanisms for obtaining a UAC’s release. See generally ORR Guide § 2; Flores v. Sessions, 862 F.3d 863, 871 & n.8 (9th Cir. 2017). “Parents, other relatives, or close family friends can apply to have the child released to their care.” ORR Guide, § 2.2; see ECF No. 10-1 ¶¶ 20-21. If release is denied to a sponsor, a parent or legal guardian may appeal that decision and request a hearing before the Assistant Secretary. Id. § 2.7.8. Further, the Ninth Circuit has interpreted the settlement agreement in the Flores case to provide UACs in ORR custody the right to challenge in a Flores bond hearing a continued custody that is based upon the danger the UAC would present upon release. Id. at § 2.7.8; Flores, 862 F.3d at 881.12 Finally, the UAC can request voluntary departure, at no cost to the UAC, removing herself from the jurisdiction and custody of HHS. See 8 U.S.C. § 1232(a)(5)(D)(ii); 8 C.F.R. § 240.25.
ARGUMENT I. Plaintiffs’ Claims In Their Second Amended Complaint Are Moot
Under Article III of the Constitution, federal courts are limited to “the adjudication of actual, ongoing controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988). A case becomes moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, (internal quotation marks and citation omitted). A defendant who asserts that a complaint is
12 The United States disagrees with the Ninth Circuit’s interpretation of the Flores settlement agreement. Additionally, a favorable finding at a Flores bond hearing does not automatically entitle a UAC to release as ORR must still determine the suitability of the sponsor. Flores, 862 F.3d at 878.
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moot because of developments subsequent to its filing raises a challenge to the court’s subject matter jurisdiction, see Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 28 (D.D.C. 2006), because federal courts only have constitutional authority to adjudicate “actual, ongoing controversies,” Honig v. Doe, 484 U.S. 305, 317 (1988). Rule 12(b)(1) is the proper mechanism for a defendant to assert that an action is moot. See Young v. D.C. Housing Auth., 31 F. Supp. 3d 90, 92-95 (D.D.C. Mar. 12, 2014) (“A motion to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1).”); Toxco, Inc. v. Chu, 801 F.Supp.2d 1, 5 (D.D.C. 2011) (“Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness.”). A motion to dismiss under Rule 12(b)(1) presents “a threshold challenge to the [C]ourt’s jurisdiction.” Morrow v. United States, 723 F.Supp.2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)).
Under “the capable of repetition yet evading review” doctrine, a plaintiff may avoid dismissal for mootness by demonstrating that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) (internal quotation marks and alterations omitted; emphasis added). While this Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged,’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)), the non-movant bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
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Here, Plaintiffs assert that ORR’s policy puts an unconstitutional obstacle in the path of unaccompanied minors who seek an elective abortion, but no such claim remains. Ms. Doe and Ms. Poe have undergone their requested abortions. Ms. Roe was found not to be a minor, and her custody was transferred to DHS, which immediately released her on her own recognizance, and she then obtained an abortion. And Ms. Moe was released to the custody of her sponsor. ECF No. 114. Given that the named Plaintiffs no longer have a personal interest in obtaining release from ORR custody to obtain an abortion, and no class has been certified, Plaintiffs’ claims for equitable relief are moot. Consequently, this Court should dismiss their second amended complaint for lack of jurisdiction pursuant to Fed. R. Civ. Pro. 12(b)(1).
Plaintiffs’ claims are not capable of repetition because there is no reasonable expectation that these individuals will be subject to ORR’s alleged policy again, and the cases that Plaintiffs have previously cited when trying to squeeze their claims into the exception to the mootness doctrine are unpersuasive. In Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644-45 (4th Cir. 1975), and Doe v. Poelker, 497 F.2d 1063, 1066-67 (8th Cir. 1974), the plaintiffs challenged general access to, and limitations on a woman’s right to, abortion. Their pregnancies were terminated, and their claims survived a mootness challenge as “capable of repetition, yet evading review.” Id. Unlike those plaintiffs, Ms. Doe was released from ORR’s care into the custody of a sponsor, and she has since turned 18. ECF No. 115-1. See Del Monte Fresh Produce Co., 570 F.3d at 321 (D.C. Cir. 2009) (“A case is moot when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated . . . .”). Ms. Poe similarly obtained an abortion under the court’s TRO, and she will soon be released from ORR custody once she turns 18; given that she is currently 17 years old and in a supervised setting, it is highly unlikely she will become pregnant during her few remaining months in ORR custody. ECF No.
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66-1 (December 16, 2017 Jonathan White Decl.) at ¶ 4, ECF No. 94 at 1. Ms. Roe is an adult who is not in ORR custody, and she has already obtained an abortion. ECF. No. 84 at 2. The fourth plaintiff, Ms. Moe, has been released from ORR care into the custody of her sponsor. ECF No. 114. Accordingly, none of Plaintiffs qualifies for this exception to mootness.
That Ms. Doe, Ms. Roe, and Ms. Moe seek to represent a putative class does not change the analysis. See ECF No. 104 at 14-15, ¶¶ 62-69. A putative class action, or particular claims within it, generally will become moot once the named plaintiff’s claims no longer present a live controversy. Bd. of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129 (1975) (per curiam). The Supreme Court has recognized an exception when “the named plaintiff’s individual claim becomes moot after” the district court rules on class certification, Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013), but that rule does not apply here because this case never reached that juncture. Here, Plaintiffs filed a motion for class certification on October 18 (ECF No. 18), and this Court had not yet ruled when Ms. Doe’s, Ms. Roe’s and Ms. Moe’s individual claims became moot.
Nor can Plaintiffs’ class claims survive a mootness challenge because they are “inherently transitory.” Genesis, 569 U.S. at 76. The “inherently transitory” exception applies only where a claim is so fleeting that “no plaintiff [will] possess[] a personal stake in the suit long enough” to obtain a decision on class certification. Id. Here, as discussed more fully in Defendants’ opposition to class certification, it is far from clear that this Court could not have ruled on Plaintiffs’ motion for class certification before Ms. Doe’s, Ms. Roe’s, and Ms. Moe’s interest would have expired in the ordinary course — much less that “no plaintiff” in the future would be able to litigate a challenge through a class-certification decision. Id. at 76.
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Accordingly, any assertion that Plaintiffs’ class claims are “inherently transitory” is without merit.
Because Plaintiffs’ claims are now moot, and there is no live controversy, this Court lacks jurisdiction to entertain Plaintiffs’ claims and should dismiss the Second Amended Complaint as moot.
II. Plaintiffs Fail To Allege A Cognizable Legal Theory Under The Fifth And First Amendments
A. To Survive A Motion To Dismiss, Plaintiffs Must Establish That ORR’s Policies Violate The Constitution In All — Or A Large Fraction Of — Their Applications
To survive a motion to dismiss, Plaintiffs must show that the alleged ORR policies being challenged are unconstitutional in all of their applications, or at least in a large fraction of applications. See Gonzalez v. Carhart, 550 U.S. 125, 168 (2007) (recognizing the “heavy burden” when making a facial challenge to abortion restriction, and not deciding whether plaintiff must show “no set of circumstances under which the Act would be valid” or whether policy “impose[d] an undue burden ‘in a large fraction of the cases in which [it] is relevant”). They cannot make this showing because ORR’s putative policies are a reasonable response to the difficult situation presented when an alien minor attempts to illegally enter the country without her parents, and then requests that the United States facilitate her ability to obtain an abortion.
A complaint will survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) if the plaintiff alleges facts that “state a claim to relief that is plausible on its face” and that, if accepted as true, are sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “‘The plausibility standard is
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not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.’” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 678). And a complaint may always be dismissed as a matter of law where a claim is not legally cognizable, such as where the plaintiff “fails to state any cognizable legal theory entitling her to relief.” See, e.g., Shinabargar v. Bd. of Trustees of Univ. of D.C., 164 F. Supp. 3d 1, 15 n.5 (D.D.C. 2016); Rocha v. Brown & Gould, LLP, 101 F. Supp. 3d 52, 78 (D.D.C. 2015), aff'd, No. 15-7053 (D.C. Cir. 2016). A Rule 12(b)(6) motion considers the sufficiency of the pleadings, and thus a Court’s inquiry is limited to “consider[ing] only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which . . . judicial notice” may be taken. EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). The Court may take “judicial notice of facts on the public record.” Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005).
To invalidate a uniform policy like the ones alleged here, Plaintiffs must show that the policy violates the Constitution in all of its applications, or at least a large fraction of its applications. See Carhart, 550 U.S. at 168; Reno v. Flores, 507 U.S. 292, 301 (1993) (to prevail in challenge to regulation governing custody of illegal alien minors, plaintiffs “must establish that no set of circumstances exists under which the [regulation] would be valid”). Such challenges are “disfavored” because they “often rest on speculation,” “run contrary to the fundamental principle of judicial restraint that courts should neither ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ nor ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,” and
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“short circuit the democratic process.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008). Here, to the extent Plaintiffs allege there are uniform policies, they cannot show that those policies are unconstitutional at all, much less in all or a large fraction of their applications.
B. Plaintiffs Fail To Allege A Cognizable Legal Theory That Government Refusal To Facilitate An Abortion For Members Of The Putative Class Constitutes An Undue Burden Under The Fifth Amendment
The government does not impose an undue burden when it declines to facilitate an abortion in circumstances like those presented by Ms. Doe, Ms. Poe, and Ms. Moe, much less in every circumstance where a minor is captured while trying to illegally cross the border, and is in custody only because that individual seeks entry into the United States. In such circumstances, the minor can end federal custody at any time, or be reunited with a parent or a sponsor well before an abortion is needed. Accordingly, the minor’s claim that ORR’s policies, in every application, violate the Fifth Amendment—and instead that the Constitution in every factual circumstance requires the type of facilitation that would enable her to enter the United States for an elective abortion—is incorrect, and the claim should be dismissed as a matter of law under Rule 12(b)(6). See, e.g., Shinabargar, 164 F. Supp. 3d at 15 n.5.13
1. The D.C. Circuit Ruling Does Not Preclude Dismissal As an initial matter, the D.C. Circuit’s en banc denial of the government’s appeal of the preliminary injunction does not prevent this Court from granting the government’s motion to dismiss on the merits. The D.C. Circuit did not address the application of the ORR policy in every circumstance or in a large fraction of circumstances, only in the specific circumstance
13 For purposes of this motion, the government assumes, but does not concede, that the undue burden framework applies in this situation where a minor is captured at or near the border, and seeks abortion services while in temporary immigration custody of HHS.
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presented by Ms. Doe, and even then only in a preliminary ruling. “The decision of a trial or appellate court whether to grant or deny a preliminary injunction [or TRO] does not constitute the law of the case for the purposes of further proceedings and does not limit or preclude the parties from litigating the merits,” unless the temporary-relief hearing was consolidated with the trial under Fed. R. Civ. P. 65(a)(2), which is not the case here. Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974). This concern is particularly warranted given the highly expedited nature of the prior court review. Thus, the rulings as to Ms. Doe’s TRO do not govern a dispositive ruling on Plaintiffs’ claims under Rule 12(b).
2. Plaintiffs Cannot Show That The Due Process Clause Requires The Government To Facilitate An Abortion
Under the framework established by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the government may pursue its legitimate interest in protecting life. Accordingly, the government may restrict abortion where its action does not impose an “undue burden” on a woman’s choice to terminate her pregnancy before viability. Id. at 870. Plaintiffs cannot show that the alleged ORR policy necessarily imposes such an undue burden in every application or a large fraction of applications for one fundamental reason: an alien who illegally crosses the border is normally able to leave the United States’ custody by either requesting voluntary departure to her country of nationality or being released to the custody of a sponsor in the United States. The United States therefore imposes no governmental burden on the ability of that alien to obtain an abortion. This class claim must, therefore, fail as a matter of law.
a. As the Supreme Court has repeatedly recognized, the government has a “legitimate and substantial interest” in promoting childbirth and protecting the life of an unborn child. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 145, 157, 163 (2007) (“the government has a legitimate
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and substantial interest in preserving and promoting fetal life”); Casey, 505 U.S. at 846 (joint opinion of O’Conner, Kennedy, and Souter, JJ.) (“The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”). That interest begins at the start of pregnancy. See Gonzales, 550 U.S. at 158; Casey, 505 U.S. at 846. Courts have recognized that a broad variety of affirmative restrictions on abortion are valid so long as they do not impose an “undue burden” on a woman’s choice to terminate her pregnancy prior to viability. See, e.g., Casey, 505 U.S. at 877; Gonzales, 550 U.S. at 157 (upholding Partial-Birth Abortion Ban Act); Lambert v. Wicklund, 520 U.S. 292 (1997) (upholding Montana parental notification statute that had a judicial bypass provision); Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding Texas statute requiring informed consent); Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992) (upholding Mississippi statute requiring physicians to inform the patient of medical risks of abortion and holding that requiring a 24-hour waiting period before procedure did not impose an undue burden); Karlin v. Foust, 188 F.3d 446, 471 (7th Cir. 1999) (upholding Wisconsin statute requiring “a physician to inform a woman seeking an abortion of the ‘probable gestational age’ of the fetus, the ‘probable anatomical and physiological characteristics’ of the fetus, and the ‘medical risks’ associated with abortion including the risk of ‘psychological trauma’ and any ‘danger to subsequent pregnancies,’” and requiring a face-to-face meeting between an attending physician and a patient 24 hours before an abortion procedure).
The United States’ refusal to affirmatively facilitate an abortion does not impose an undue burden, and no court has ever held otherwise. Rather, to impose an “undue burden,” a statute or regulation must impose a restriction on private actors that has “the effect of placing a substantial obstacle in the path of a woman’s choice” to terminate her pregnancy. Casey, 505
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U.S. at 877 (emphasis added). There is a significant difference between affirmatively imposing a substantial obstacle and merely refusing a request to the government to facilitate the termination of a pregnancy. In light of the substantial governmental interest in protecting fetal life and promoting childbirth, the government may refuse to facilitate an abortion without unduly burdening a woman’s choice to terminate her pregnancy. See, e.g., Harris v. McRae, 448 U.S. 297, 315, 317-19 (1980) (holding that the Due Process Clause does not confer an entitlement to government assistance in obtaining an elective abortion procedure; decision not to fund abortion does not pose any “governmental obstacle”); see also Maher v. Roe, 432 U.S. 464, 471-74 (1977) (rejecting claim that unequal subsidization for child birth, as opposed to abortion, was unconstitutional); Webster v. Reproductive Health Servs., 492 U.S. 490, 510 (1989) (holding that the government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected and specifically that government has no affirmative duty to “commit any resources to facilitating abortions”). In Harris and Maher, the Court explained that the fact that a lack of facilitation may “make it difficult — and in some cases, perhaps, impossible — for some women to have abortions” does not alter the conclusion that the Due Process Clause does not require the government to facilitate abortion services. Harris, 448 U.S. at 314 (quoting Maher, 432 U.S. at 474).
b. In the circumstances presented here — where an illegal alien arrives at the border, is temporarily placed in government custody, and then seeks an elective abortion, the government’s refusal to facilitate that abortion does not impose an undue burden under Casey. Rather, such an alien may always obtain release from government custody by returning to her country of nationality through voluntary departure, being reunited with parents, or obtaining a timely sponsorship. The United States is accordingly not imposing any burden on the right to abortion.
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And in no event does the alleged policy create an undue burden in all or a large fraction of the wide-ranging circumstances faced by ORR — including where a sponsor can be readily and promptly found; where reunification with a parent abroad is possible; where a prompt return to the alien’s country of nationality is otherwise called for, in accordance with the aims of the TVPRA; where no immigration relief may be available; or where the minor is willing to or obligated to return home. Moreover, HHS retains responsibility to ensure that the interests of every minor in its custody are considered in decision-making about the minor’s care. Thus, the undue burden test cannot properly be applied without accounting for ORR’s special role, which inherently involves ongoing counseling, consultation with parents, and other policy elements, which may result in a minor deciding not to seek an abortion.
In this case, the government has not imposed any “undue burden” on the ability of an illegal alien to obtain an abortion. An illegal alien who has entered the United States without authorization may contend that the fact of being in federal custody stands as an obstacle to her ability obtain an abortion, but that alien is only in federal custody because she entered the United States illegally. Moreover, the alien may end that custody at any time by voluntarily departing from federal custody, if a suitable sponsor is identified, vetted, and approved, or if reunification with her parents abroad is appropriate. Plaintiffs have not pointed to any precedent holding that this sort of self-imposed obstacle, as opposed to a government-imposed obstacle, can constitute an “undue burden.”
At the same time, this lawsuit seeks to require HHS to facilitate abortions by all minors who have been put into HHS temporary custody after entering this country illegally — precisely the sort of facilitation that may not be required of the government. Indeed, ample case law recognizes that the government need not provide funding or “commit any resources to
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facilitating abortions.” Webster, 492 U.S. at 511. An order requiring HHS to provide abortion services would require government staff (or their caretaker delegates) to draft approval documents, review information relevant to the alien’s health and the procedure, determine that the abortion procedure is in her best interests, and maintain custody of the alien (while ensuring her health remains stable) both during and after any the abortion procedure. In doing so, HHS would be forced to take affirmative action to monitor and supervise the alien’s release — incurring the personnel and resource costs associated with such monitoring and supervision — to ensure the UAC was not placed in dangerous conditions and was instead safely returned to ORR care and custody following the abortion and any other necessary related procedures. ECF No. 10-1 ¶¶ 13, 15-16. This is precisely the type of facilitation the Supreme Court does not require.
The undue burden test does not require the government to facilitate an abortion in these circumstances, where an alien minor herself has the choice of ending her own government custody, and therefore putting herself back in the same circumstances she would have been in before she attempted to illegally enter the United States. It is undisputed that the government could deny an alien entry when she arrives at the border. The principle would hold true even if that alien’s ultimate purpose in seeking entry was to obtain any form of medical care, including an elective abortion in the United States; the Government is not required to afford an alien unlawful entry in order to afford her the opportunity to seek such medical care or an elective abortion. And, denial of entry in those circumstances would not place any undue burden on the alien. That same conclusion is compelled here; the alien minor can seek voluntary departure at any time to end her custody, returning her to the same position held by any alien minor seeking to enter the United States at the border. In such circumstances, the government’s refusal to facilitate an abortion cannot constitute an undue burden. Instead, the Congressional preference
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for repatriation underscores that it is appropriate for the United States to avoid facilitating an abortion in these circumstances, particularly where repatriation is a viable alternative and where the alien’s country of origin may have equities.
Plaintiffs have relied on cases addressing state laws permitting a judicial bypass mechanism for minors seeking an abortion without their parents’ consent, as support for the contention that the federal government must not only defer to the minor’s choice to terminate her pregnancy, but also assist her in obtaining an abortion. See ECF No. 3 at 10 (citing Bellotti v. Baird, 443 U.S. 622 (1979)); ECF No. 5 at 10 (same). But those cases hold merely that state laws prohibiting the right to abortion absent parental consent may, in some circumstances, impose an undue burden unless there is a judicial bypass procedure—they do not go a step further to say that the government must affirmatively facilitate the child’s desire to obtain an abortion. See, e.g., Cincinnati Women’s Services, Inc. v. Taft, 486 F.3d 361 (6th Cir. 2006).
Cases addressing prisoner access to abortion are also inapposite. See, e.g., Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008); Monmouth Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). In the prison setting, a prisoner is coercively confined with no freedom to leave custody and thus the procedure would be “entirely unavailable” given the mandatory incarceration. Crawford, 514 F.3d at 796. Here, a UAC can opt to leave federal custody by applying for and obtaining lawful admission to, or relief for removal from, the United States, voluntarily departing the United States, or by finding an approved sponsor—such as a parent—to take custody of them. 8 U.S.C. §§ 1229c, 1232(a)(5)(D); 8 C.F.R. § 240.25; cf. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (“An alien in Parra’s position can withdraw his defense of the removal proceeding and return home to his native land, thus ending his detention immediately. He has the keys in his pocket.”). But until she does — unlike for adults in the
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custody of the Bureau of Prisons — the ORR is charged by Congress with overseeing her care and custody. See 6 U.S.C. 279. In that circumstance, the government should not be required to facilitate an abortion, whatever the level of time, attention, or resources it would have to devote. Holding that all pregnant aliens have a right to illegally enter the country and evade the immigration process in the United States in order to obtain abortions creates an unwarranted incentive for children worldwide to make this dangerous journey to seek to enter the United States without a lawful basis for doing so. Further, such a holding has the potential to affect foreign relations with UACs’ home countries, many of which prohibit abortion and may be concerned about a United States policy that permits their citizens to enter the United States without authorization to gain access to abortion services. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976) (explaining that “decisions in [immigration] matters may implicate our relations with foreign powers”). And, in balancing the relevant interests, the strong government interest in not facilitating an abortion significantly outweighs the interest of an alien who has violated our immigration laws and insists on obtaining an elective abortion in the United States rather than returning to her country of origin. These reasons strongly counsel against holding that any such right exists under the Fifth Amendment.
C. Plaintiffs’ Fifth Amendment Parental-Notification Claim Fails To State A Cognizable Claim For Relief
Plaintiffs lacks any cognizable legal right to relief based on a claim that the government is violating due process “by forcing minors to tell their parents or sponsors about their abortion decision, or telling the parents or sponsors themselves.” ECF No. 5-1 at 11. Plaintiffs cannot show, as would be necessary in a class action challenge to this policy, that involving parents in this difficult decision violates the Due Process Clause — much less that it does so in all or the large fraction of circumstances. Instead, the government does not impose an “undue burden”
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through a policy that provides for informing parents with respect to difficult issues relating to the abortion decision. Rather, given that Congress has affirmatively charged the government with communicating with UACs’ parents in their home country and/or potential guardians in the United States in its custodial role, these types of communications do not.
In certain circumstances, a parental consent requirement might impose an undue burden on a woman’s choice to have an abortion, which may require in turn a judicial bypass procedure that protects the woman’s anonymity. See, e.g., Cincinnati Women’s Services, 468 F.3d at 370 (holding that Ohio provision limiting minors to one petition for a judicial bypass per pregnancy was an undue burden). But such a rule bears no relationship to the circumstances alleged here, where Plaintiffs have not alleged the imposition of any requirement that UACs obtain parental consent, but only that ORR has either required UACs to notify their parents of abortion decisions, or has notified the parents themselves. Here, the government has custody of unaccompanied alien minors who have attempted to illegally enter the United States. Given the separation of the child from the parent inherent in this context, discussions with a parent would not impose the sort of undue burden that was addressed by the courts in other contexts where the child was in parental custody.
The parental-notification claim rests on their assertion that, “[o]nce a minor has been granted a judicial bypass, the government ceases to have any legitimate interest in notifying the minor’s parents.” ECF No. 5-1 at 11. However, the government’s decision to provide parental notification is constitutionally different in kind from a government requirement to obtain parental consent. “[A] parental notice statute — unlike either a spousal notice or a blanket parental consent statute — has neither ‘the purpose [n]or effect of placing a substantial obstacle in the path of a woman seeking an abortion,’ and therefore cannot reasonably be said to unduly burden
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the minor’s abortion right.” Planned Parenthood of Blue Ridge v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc) (quoting Casey, 505 U.S. at 877 (joint opinion)). It is not an undue burden to require parental notification so long as there are appropriate exceptions. See id. at 37274 (holding that a “state may constitutionally require that mothers and fathers of teenage daughters be informed of their daughters’ life-defining decisions to abort their pregnancies, provided that the state excepts from its requirement notice to abusive parents, noncustodial parents who have refused to accept their parental responsibilities, and parents with similar relationships to their children”). Plaintiffs have failed to make any allegations that would provide a basis for finding that these exceptions apply. See ECF No. 104 (nowhere alleging that any Plaintiffs’ parents are abusive or have refused to accept their parental responsibilities). In fact, Ms. Poe herself “informed her parents of her pregnancy and of her contemplation of abortion.” ECF No. 66-1 (December 16, 2017 Jonathan White Decl.) at ¶ 5. Ms. Roe and Ms. Moe make no allegation that they have been forced to inform their parents of their pregnancy or abortion. See ECF No. 104 at 6, ¶¶ 23-29. And Ms. Moe’s parents were never informed of her request, and she was subsequently released from federal custody to that of her sponsor. ECF No. 114.
Any challenge to parental notification is particularly weak in the context of UACs in ORR custody, given that in rare circumstances, HHS might assist with “reuniting unaccompanied alien children with a parent abroad in appropriate cases.” 6 U.S.C. § 279(b)(1)(H). Information regarding the UAC’s health status — including whether she is currently pregnant or just underwent a serious medical procedure implicating her physical health — might be essential in this regard. Similarly, the TVPRA directs that ORR ensure that UACs are placed in settings with the United States where they are not at risk, see 6 U.S.C. § 279(b)(2)(A)(iii), and provides that
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“an unaccompanied alien child may not be placed with a person or entity unless the Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.” 8 U.S.C. § 1232(c)(3)(A). In order to accommodate any health needs or conditions related to the pregnancy or abortion procedure, ORR’s communications with potential custodians may require notification regarding the abortion and surrounding circumstances.
In sum, Plaintiffs fail to state a claim here because, even accepting the truth of their allegations, a parental notification policy, in contrast with a policy requiring parental consent, does not impose an undue burden. See Camblos, 155 F.3d at 367. Moreover, the government’s unique custodial statutory obligations to ensure that upon release, the UAC’s sponsor is capable of providing for the child’s physical and mental wellbeing indicates that imposing any bar on parental notification in these circumstances is especially problematic. This claim must therefore be dismissed under Rule 12(b)(6).
D. Plaintiffs’ First Amendment Compelled-Speech Claim Fails To State A Cognizable Claim For Relief
Plaintiffs cannot succeed on a claim that the United States violates pregnant UACs’ First Amendment right against compelled speech. Plaintiffs contend that they and all putative class members are being “compel[led] . . . to discuss their decisions to have abortions and the circumstances surrounding those decisions with crisis pregnancy centers . . . .” ECF No. 104 at 16, ¶ 72. The government, however, only impermissibly compels speech when it forces a speaker to convey a message and “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Rumsfeld v. FAIR, 547 U.S. 47, 63 (2006); see Nat’l Assoc. of Manufacturers v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (a “compelled-speech violation’ occur[s] when ‘the complaining speaker’s own message was affected by the speech it
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was forced to accommodate’”); see also Nat’l Assoc. of Manufacturers v. SEC, 800 F.3d 518, 521-23 (D.C. Cir. 2015) (collecting compelled speech cases). It is not compelled speech when the individual is not required to say anything. Cf. Snyder v. Phelps, 562 U.S. 443, 458 (2011) (The First Amendment contemplates that listeners may be exposed to messages that “in someone’s eyes are misguided.”).
It is well-settled that the government may require pregnancy-related counseling to ensure the counselee understands the legal rights and requirements surrounding abortion procedures. Texas Med. Providers Providing Abortion Servs., 667 F.3d at 574-80 (rejecting First Amendment challenge by abortion providers to a Texas law that required them to provide a sonogram and other information to women seeking abortion services); see also Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d at 1467 (upholding a state mandatory-information provision that required providing information regarding pregnancy, fetal development, child care, and child support among other things). Indeed, ORR in this circumstance — where medical care while in custody is at issue — must consider the child’s welfare interests. See 8 U.S.C. § 1232(b)(1). The Supreme Court has long recognized “that when a parent or another person has assumed ‘primary responsibility’ for a minor’s well-being, the State may properly enact ‘laws designed to aid discharge of that responsibility.’” Hodgson v. Minn., 497 U.S. 417, 448 (1990) (quoting Ginsberg v. New York, 390 U.S. 629, 639 (1968)). This is because “[t]he State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Id. at 444.
Here, HHS serves in the role of the child’s legal custodian and is directed to place UACs “in the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while in HHS custody—that is, until they are released to a suitable sponsor, obtain lawful status
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or leave the country. See 6 U.S.C. § 279(g); 8 U.S.C § 1232(b)(1), (g). When caring for a child’s medical needs, HHS exercises custodial responsibility, and in these circumstances must consider child welfare. In addressing the UAC’s welfare, and more specifically, the needs of a pregnant minor, ORR provides pregnancy counseling in this custodial capacity. ORR provides these services through cooperative agreements with care providers, which in turn use various external medical centers and professionals as well as professionals on staff. See https://www.acf.hhs.gov/orr/programs/ucs/about (“care providers operate under cooperative agreements and contracts”). Certain external medical providers conduct initial medical exams, and then UACs believed to be pregnant receive confirmation of pregnancy and care from other providers who are obstetrician/gynecologists. ORR further offers UACs medical and social service counseling, and sometimes does so from medical professionals that specialize in pregnancy counseling (which plaintiffs call “crisis pregnancy centers”). During all these care appointments, UACs are provided with medical and other pertinent information, which is a key component of engaging in any medical communications and in obtaining informed consent at each step.
Despite their allegation that named Plaintiffs and members of the putative class are being “compelled” to speak during counseling, ECF No. 104 at 16, ¶ 72, neither Ms. Doe, Ms. Poe, Ms. Moe, nor any UAC is forced to engage in discourse or respond to any inquiries, and may in fact remain completely silent during any such counseling. In fact, Ms. Roe, Ms. Poe and Ms. Moe report freely discussing pregnancy options with physicians and/or ORR staff, and arrived at the choice to abort the fetus with no report of being compelled to say anything against their will. See ECF No. 104 at 5-6, ¶¶ 20, 24, 27. ORR simply ensures that UACs are provided medical
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and social information about their pregnancies and options. For these reasons, Plaintiffs’ First Amendment compelled-speech claim must fail.
E. Plaintiffs’ Establishment Clause Claim Fails As A Matter Of Law And Should Be Dismissed
“The Establishment Clause of the First Amendment, made binding upon the States through the Fourteenth Amendment, provides that the Government ‘shall make no law respecting an establishment of religion.”’ Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757 (1995) (quoting U.S. Const. Amend I).
ORR may provide counseling before and after any abortion procedure to protect the minor’s mental and physical well-being. See 8 U.S.C. § 1232(c)(2)(A), (c)(3)(A). There is nothing about ORR policy that contains a purpose to support religion, and the primary effect of the policy is to assist UACs, and not to promote religion. The Second Amended Complaint contains no allegations that Plaintiffs received any religious or non-secular messages relating to any particular religion, or that ORR screens service providers on the basis of religious affiliation. See ECF No. 104 (nowhere alleging that Plaintiffs were subjected to any specific religious messages). Consequently, even accepting arguendo the truth of Plaintiffs’ factual allegations, Plaintiffs’ claim under the Establishment Clause must fail.
This is not a case where “the Government was actively and directly communicating a religious message through religious words or religious symbols.” See In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). Plaintiffs have alleged an Establishment Clause violation based on the mere fact that some private nonprofit organizations with which the Federal government arranges to provide pregnancy counseling services — not even necessarily the organizations that actually house the Plaintiffs — are religiously affiliated. ECF No. 104 at 1617, ¶¶ 74-78. What these allegations lack is the contention that ORR requires the Plaintiffs to
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receive unwanted religious instruction — Plaintiffs simply contend UACs cannot be provided with secular services if the provider is religious. In any event, the Government may fund general secular activities of “religiously affiliated” institutions without violating the Establishment Clause, so long as such institutions are capable of separating their secular services from sectarian indoctrination. See Agostini v. Felton, 521 U.S. 203 (1997) (students attending religious schools eligible for federal remedial assistance); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (Christian student organization eligible for student activity funds); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (publicly funded sign language interpreter could assist student in a Catholic school); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986) (blind student free to use public vocational assistance to attend bible college); Columbia Union Coll. v. Clarke, 159 F.3d 151, 157-58 (4th Cir. 1998); see also 45 C.F.R. § 87.3(b) (“Organizations that apply for or receive direct financial assistance from an HHS awarding agency may not support or engage in any explicitly religious activities . . . as part of the programs or services funded with direct financial assistance from the HHS awarding agency, or in any other manner prohibited by law.”). Pregnancy counseling services “are not themselves ‘specifically religious activities,’ and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.” Bowen v. Kendrick, 487 U.S. 589, 613 (1988). As the Supreme Court has recognized, the fact that a religious message may overlap with the government’s secular interest in promoting life over abortion is insufficient on its own to warrant a finding that a governmental action has the primary effect of advancing religion. Id. Thus, Plaintiffs lack any claim under the Establishment Clause.
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CONCLUSION

For the foregoing reasons, the Court should dismiss all claims in this case against

Defendants.

DATED: February 1, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

AUGUST E. FLENTJE Special Counsel Civil Division

ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

Attorneys for Defendants

BY: /s/ Sabatino F. Leo SABATINO F. LEO W. DANIEL SHIEH JOSEPH A. DARROW Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 598-2445 Fax: (202) 305-7000 sabatino.f.leo@usdoj.gov daniel.shieh@usdoj.gov joseph.a.darrow@usdoj.gov

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 Case 1:17-cv-02122-TSC Document 121 Filed 03/02/18 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION AND A PRELIMINARY INJUNCTION BASED ON NEW FACTS DEMONSTRATING
CONTINUED NEED FOR URGENT RELIEF
Plaintiffs submit this renewed motion for class certification (ECF No. 18), for provisional class certification and notice (ECF No. 90), and for preliminary injunctive relief (ECF No. 5). Since the filing of those motions, additional facts have come to light that reveal the extreme lengths to which Defendants will go in their attempts to obstruct access to abortion and coerce young girls into carrying their pregnancies to term. These additional facts confirm Plaintiffs’ assertion that Defendants have violated, and will continue to violate, the putative class members’ constitutional right to access abortion unless and until they are enjoined from doing so by an order of this Court. Indeed, new information shows that there have been multiple minors, not previously known to this Court, who have requested access to abortion while in Defendants’ custody. In addition to demonstrating ongoing irreparable harm, these new facts also confirm that Plaintiffs easily satisfy the Rule 23(a) requirements for class certification. Accordingly, based on Plaintiffs’ prior briefings and the additional information set forth below, Plaintiffs

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respectfully urge this Court to rule quickly on their motions for class certification, or provisional class certification and notice, and for a preliminary injunction to prevent Defendants from inflicting irreparable harm on additional pregnant minors in their custody. See Mot. for Prelim. Inj. (ECF No. 5); Mot. for Class Cert. (ECF No. 18); Mot. for Prov. Class Cert. & Notice (ECF No. 90).
A. New Information Reveals That in the Span of Just a Few Months, Several Additional Minors Were Subjected to Defendants’ Unconstitutional Policy, Further Demonstrating the Breadth of the Class and Ongoing Irreparable Harm. Plaintiffs have obtained additional facts through discovery in American Civil
Liberties Union of Northern California v. Hargan, No. 3:16-cv-03539-LB (N.D. Cal.) showing that minors, in addition to the named Plaintiffs, have suffered harm and that more are likely suffering harm on a continuing basis due to Defendants’ policies of coercion and obstruction. These additional facts intensify the urgency for class certification and injunctive relief. In addition, they further support Plaintiffs’ showing of numerosity/impracticability of joinder because the number of identifiable members in the putative class continues to grow and the fact that Plaintiffs’ counsel are learning of these putative class members only through discovery in a separate action (discovery which has now closed) reflects the difficulty these young women have in obtaining counsel of their own to assert their rights in court. See Reply in Support of Class Cert. (ECF No. 56), at 18-21 (explaining the relevance of Defendants’ obstruction of access of counsel and the unique vulnerability of putative class members). Absent action from this Court, there is no way for Plaintiffs, apart from relying on anonymous tips, to identify other members of the putative class who have been or are currently being harmed by Defendants’ unconstitutional policy, or will be harmed in coming days, weeks, and months.
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The evidence reveals that in the span of just five months – August of 2017 to December of 2017 – at least six pregnant minors were considering abortion while in Defendants’ custody and were subjected to Defendants’ coercion attempts, obstruction and outright prevention. See Decl. of B. Amiri in Supp. of Pls.’ Renewed Mot. (“Decl. of B. Amiri”) at Exs. A-M. This includes Jane Doe, Jane Poe and Jane Roe – three of the named plaintiffs in this case – and three additional minors whose cases Plaintiffs’ counsel became aware of only after reviewing documents obtained in discovery.
 In August 2017, a minor who was pregnant and had requested an abortion while residing at a shelter in Arizona was taken to a crisis pregnancy center, given spiritual counseling and ended up participating in a “family session” in which her mother was informed of her pregnancy and desire for abortion, in spite of the minor’s expressed desire that her family not be informed. See id., Ex. A, PRICE_PROD_00014828-29.
 Shortly thereafter, in September 2017, Jane Doe, the first named plaintiff in this case, was required to tell, or have ORR tell, her parents about her pregnancy and abortion decision, despite being “strongly opposed to parental notification,” and was also required to attend “life-affirming” spiritual counseling at a crisis pregnancy center – all prior to Defendant Lloyd’s determination that it would not be in her best interests to obtain an abortion because “the fetus and pregnancy was also a minor in care.” See id., Ex. B, PRICE_PROD_00014889-91; id., Ex. C, PRICE_PROD_00015152-53; id., Ex. D, Dep. Tr. of J. White at 86:19-25; 89:23 – 90:20; 91:7 – 92:15.
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 Also around September 2017, yet another minor who was pregnant and contemplating an abortion while residing at an ORR shelter in California was sent for counseling at a Christian crisis pregnancy center, despite having indicated that she did not want to receive Christian services, and Director Lloyd further instructed shelter staff to notify her parents of her pregnancy and abortion request, regardless of the fact that she had declined to talk to her family herself and had not consented to having shelter staff tell them. See Decl. of B. Amiri, Ex. E, PRICE_PROD_00014814; id., Ex. F, PRICE_PROD_00014822-24.
 Less than a month later, in October 2017, yet another minor who was pregnant and requesting an abortion at a shelter in Texas was coerced into notifying her mother at Defendant Lloyd’s direction, and Defendant Lloyd also instructed that she be taken for “options” counseling at a Catholic Charities counseling center. See id., Ex. G, PRICE_PROD_00014815-16; id., Ex. H, PRICE_PROD_00015133-34.
 And then, in December 2017, Defendants imposed their policy on two of the other named plaintiffs in this case. In Ms. Poe’s case, Defendants employed a number of tactics aimed at coercing Ms. Poe into carrying her pregnancy to term, despite Defendants’ knowledge that she had stated she would prefer to harm herself rather than continue with the pregnancy. See id., Ex. I, PRICE_PROD_00015506. For example, Defendant Lloyd required Ms. Poe to either notify her parents of her pregnancy and abortion decision herself or have them be notified. See id., Ex. I, PRICE_PROD_00015504-11. During the required notification session, Ms. Poe’s family threatened to harm her if she had the abortion, causing her to temporarily
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withdraw her request to obtain an abortion because – as she later stated when reasserting her request – she felt pressured by her mother and potential sponsor to continue with the pregnancy. See id., Ex. J, PRICE_PROD_00015514-16. After this attempt at coercion failed, Defendant Lloyd instructed staff to give Ms. Poe a pamphlet containing information about the risks of abortion and “the ability of unborn babies to feel pain,” to read her a detailed description of the abortion procedure from a Supreme Court case, to offer her a graphic image of the procedure, and to make sure she has “a proper understanding of the development of her baby,” all in further attempt to pressure her into carrying her pregnancy to term. See id., Ex. K, PRICE_PROD_00015450-53; id., Ex. L, PRICE_PROD_00015521-22.  Defendants also required that Ms. Roe’s family members be notified of her pregnancy and abortion decision, regardless of whether or not ORR had her consent to inform them. See id., Ex. M, PRICE_PROD_00015591-94. Based on Defendants’ policy and prior practices, it is virtually certain that there are other similarly situated pregnant minors who are in Defendants’ custody right now and who have been or are currently being denied information about and/or access to abortion services pursuant to Defendants’ unconstitutional policy. Without access to these putative class members, and absent class certification and a preliminary injunction as to the class, the constitutional rights of these minors will be violated, to the point where they may be forced to carry their pregnancies to term against their will. B. New Facts Reinforce That Defendants Have a Uniform Policy of Coercion and Banning Abortion and Thus Plaintiffs Meet the Class Certification Commonality and Typicality Requirements.
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The discovery materials also confirm Plaintiffs’ assertion that Defendants have adopted and continue to enforce a uniform policy that is aimed at ensuring that all pregnant minors in their custody continue their pregnancies, regardless of the minors’ wishes. The consistent manner in which Defendants have acted with respect to a rising number of individual minors’ abortion requests confirms that there is “a uniform policy or practice that affects all class members” in this case. DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013); DL v. District of Columbia, 302 F.R.D. 1, 12 (D.D.C. 2013), aff’d on other grounds, 860 F.3d 713 (D.C. Cir. 2017) (finding commonality “where plaintiffs allege[d] widespread wrongdoing by a defendant because [of] a uniform policy or practice that affects all class members” (internal quotation marks omitted)); see also Reply in Support of Class Cert. (ECF No. 56) at 3-9. The continued application of the policy also demonstrates the dire need for class wide preliminary injunctive relief to prevent ongoing, irreparable harm. See Mem. in Supp. Mot. for TRO & Prelim. Inj. (ECF No. 5-1) at 14-16.
As the discovery materials further show, pursuant to Defendants’ policy, once a minor requests information about and/or access to abortion, Defendants require that a number of coercive tactics be employed to break the minor’s resolve in her abortion decision. These tactics include requiring that the minor’s parents or family members be notified of her pregnancy and abortion decision, even over the objection of the minor and even in cases where concerns are raised about the danger to the minor’s physical wellbeing of revealing her abortion decision. See Decl. of B. Amiri, Ex. B, PRICE_PROD_00014889 (shelters are “not to take [a minor] to get a termination, or to any appointments to prepare her for a termination, without consent from the Director,
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which cannot happen without written and notarized consent of her parents…”); id., Ex. G, PRICE_PROD_00014816 (when minors receive positive pregnancy tests “the parents must be notified”); id., Ex. F, PRICE_PROD_00014822 (shelters should “notify [parents] regardless of UAC’s wishes”); id., Ex. D, Dep. Tr. of J. White at 41:1 – 42:2 (explaining that “[i]n many cases” another step has been notification of the parents in the minors’ home country of the minors’ abortion decision, even “over the objection of the minor”); id. at 84:9-17 (confirming that one minor’s parents were notified of the minor’s abortion decision even where the Young Center – an immigrants services organization that works one-on-one with unaccompanied immigrant children who come to the U.S. fleeing violence and abuse – had raised concerns about the ramifications of revealing the minor’s abortion decision); see also id., Ex. N, Dep. Tr. of S. Lloyd at 133:3 – 134:1 (admitting that he directed parental notification about a minor’s abortion decision). As Jonathan White, Deputy Director of ORR, explained, this policy of forced notification puts minors at risk of harm. See id., Ex. D, Dep. Tr. of J. White at 42:3 – 43:1 (stating that, based on his social work background and training, he would “not recommend” notifying a minor’s parents of her abortion decision over the minor’s objection “[b]ecause of the potential of additional harm or risk”).
Defendants’ policy also requires that minors who request access to abortion receive “life-affirming” counseling from an anti-abortion crisis pregnancy center on the Defendants’ list of “approved providers” – a list that was commissioned by Director Lloyd and created with the assistance of two national Christian networks of anti-abortion crisis pregnancy centers. See, e.g., id., Ex. B, PRICE_PROD_00014891 (when a young person wants to terminate a pregnancy “the child should seek spiritual counseling,
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options counseling”); id., Ex. O, PRICE_PROD_00014997-98 (discussing creation and origin of approved provider list); id., Ex. D, Dep. Tr. of J. White at 40:10-24 (noting that one of the steps that a minor must take after notifying ORR that she desires an abortion has been to visit a crisis pregnancy center). Indeed, Defendant Lloyd has admitted that he asked the Center for Faith-Based and Neighborhood Partnerships to create an “approved provider” list of “life-affirming” pregnancy centers and has required pregnant minors to visit crisis pregnancy centers from this list for counseling. See id., Ex. N, Dep. Tr. of S. Lloyd at 161:6 – 162:10 (requesting that Shannon Royce – the Director of the Center for Faith-Based and Neighborhood Partnerships – identify “life-affirming” crisis pregnancy centers to which programs may refer minors if they are pregnant and seeking information about their options); id. at 133:3 – 134:1 (admitting that he required a minor who had requested an abortion to visit a crisis pregnancy center). Defendant Lloyd has also instructed that a minor be read and given a copy of a personalized letter from a family offering to adopt her baby if she continued her pregnancy.
The discovery materials further show that, even when a minor manages to withstand all of Defendants’ coercion attempts, Defendants will still block the young woman from accessing abortion – either by outright denying her abortion request or by withholding the now-requisite “consent from the Director” until it is too late. Indeed, Defendant Lloyd has clarified that, under ORR’s policy, shelters “are not to take [minors] to get a termination, or to any appointments to prepare [them] for a termination, without consent from the Director, which cannot happen without written and notarized consent of her parents, and will not necessarily follow.” Decl. of B. Amiri, Ex. B, PRICE_PROD_00014889 (emphasis added); see also id., Ex. P,
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PRICE_PROD_00014975 (where “pregnancy termination is being sought, [the parents] will need to provide written and notarized consent, although Scott [Lloyd] advises that this does not constitute a commitment for the Director to approve the request”) (emphasis added); id., Ex. D, Dep. Tr. of J. White at 16:15 – 18:7; 47:22 – 48:8; 56:11-15; 68:4-9 (discussing ORR’s policy of requiring Director approval of all abortion requests and its application). In other words, pursuant to Defendants’ policy, even where a minor’s parents provide consent, Defendant Lloyd still retains for himself the power to veto both the minor’s and her parents’ decision and deny the minor’s request. And Defendant Lloyd has admitted that he has not approved any abortion request in his time as ORR Director, even when the young woman was pregnant as a result of a rape, in part because of his belief that abortion is the “destruction of human life,” and that it is his prerogative to apply his belief to override a minor’s firm decision to have an abortion. See id., Ex. N, Dep. Tr. of S. Lloyd at 64:19-21; 65:6-22; 114:11-13; 154:8-23. In other words, when viewed in the context of Defendant Lloyd’s personal beliefs about abortion and his failure to approve a single abortion request – even where the pregnancy is the result of rape and even where, as in the case of Ms. Poe, the minor has threatened self-harm if she is forced to carry to term – Defendants’ policy of conditioning minors’ abortion access on Defendant Lloyd’s approval is, in effect, an unconstitutional ban on abortion for minors in Defendants’ care in all cases, the sole exception being where the pregnancy is an immediate threat to the young woman’s life. Accordingly, the additional evidence regarding the existence and application of this uniform policy further rebuts Defendants’ arguments that class treatment is inappropriate because of purported factual differences among the putative class members. See Reply in Support of Class Cert. (ECF No. 56), at
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2-6 (explaining how common legal claims challenging a uniform policy applied to class member suffice to establish commonality).
C. The Course of This Litigation Shows How Inherently Transitory Plaintiffs’ Claims Are. Finally, although Defendants have argued at length that Jane Doe, Jane Roe and
Jane Moe are not adequate class representatives because they have already received abortions and/or are no longer in the custody of ORR, see ECF No. 53 at 8-11; ECF No. 98 at 5-6; ECF No. 117 at 1-3, the proceedings to date in this case amply demonstrate that that Plaintiffs’ claims are “inherently transitory” in nature, Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991); ECF No. 56 at 11-18; ECF No. 103 at 1; ECF No. 107 at 1-2, and therefore fall within the well-established exception to the mootness doctrine. Defendants have no real response to this claim: They have conceded that there is no established length of time that renders a claim “transitory” and that a central consideration is whether a court has time to rule on class certification while the proposed representative retains a live individual claim. See ECF No. 53 at 9-10. So far in this litigation, four plaintiffs have sought relief: Jane Doe obtained an abortion with the aid of a court order within 12 days of filing for class certification. Jane Poe obtained an abortion with the aid of a court order within 5 days of joining the case. As for Jane Roe and Jane Moe, the government released each of them from its custody within days of filing their claims; Jane Roe was released within 4 days of filing her claim, Jane Moe within 3 days. Given the frenetic pace of the litigation over these women’s motions for emergency relief, the Court has understandably been unable to rule on class certification prior to granting the TROs or the plaintiffs’ release. These spans of 12, 5, 4, and 3 days fall comfortably within this Court’s jurisprudence on the “inherently transitory”
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exception. In fact, this Court has applied the “inherently transitory” rule to claims that would be live for a “length . . . impossible to predict,” Thorpe v. District of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013), to claims that would be live for “weeks or months,” R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 183 (D.D.C. 2015), and even to claims that would be live for two years (while the children at issue were aged three to five), DL, 302 F.R.D. at 20. This case presents four examples of plaintiffs whose claims became moot far faster, and there is every reason to expect that future plaintiffs in the putative class will obtain relief with comparable dispatch once they are able to bring their claims before this Court.
Defendants only response is to cite Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013). But that case has no bearing here. First and “fundamentally,” as stressed in Symczyk itself, 569 U.S. at 75, and as the D.C. Circuit has emphasized, Symczyk was about conditional certification of a “collective action” under the Fair Labor Standards Act, not about certification of a class under Rule 23. Id.; DL, 860 F.3d at 722. Thus, because it “hinged on the unique features of the FLSA cause of action” Symczyk is inapplicable in “Rule 23-land.” Id. at 722; accord Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014) (“[C]ourts have universally concluded that the Genesis discussion does not apply to class actions.”), aff’d on other grounds, 136 S. Ct. 663 (2016). Second, the “inherently transitory” exception did not apply to the claim in Symczyk — which was for unpaid wages — because “a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations.” 569 U.S. at 77. In this regard, the Court explicitly contrasted the damages claim in Symczyk with “claims for injunctive relief challenging ongoing conduct,” id. —
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that is, the type of claim at issue here. Accordingly, Symczyk casts no doubt on Plaintiffs’ case for class certification.
* * * In sum, Defendants continue to interfere with and obstruct pregnant minors’ access to abortion services. Indeed, even in the face of the temporary restraining orders issued by this Court thus far, Defendants have doubled down on applying their policy to minors in their care. Their persistence in this regard reaffirms the urgent need for class certification and preliminary injunctive relief in order to protect the constitutional rights and health of all putative class members who are currently or will be in Defendants’ care. For these reasons, Plaintiffs respectfully urge this Court to grant their motion for class certification, or alternatively their motion for provisional class certification and notice, and to issue a preliminary injunction enjoining Defendants (along with their respective successors in office, officers, agents, servants, employees, attorneys and anyone acting in concert with them) from continuing to coerce and compel minors’ in their care into carrying their pregnancies to term against their will. Amended proposed orders on the motions are attached.

March 2, 2018

Respectfully submitted,

Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org

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sknizhnik@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 mwroe@rshc-law.com
*Admitted pro hac vice
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Case 1:17-cv-02122-TSC Document 121 Filed 03/02/18 Page 14 of 14 Attorneys for Plaintiffs
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 Case 1:17-cv-02122-TSC Document 124 Filed 03/16/18 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad

)

litem to unaccompanied minor JANE DOE, )

on behalf of herself and others similarly

)

situated; JANE ROE and JANE MOE on

)

behalf of themselves and others similarly

)

situated; and JANE POE,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZER II, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION AND A PRELIMINARY INJUNCTION

Plaintiffs’ renewed motion for class certification and request for a preliminary injunction

miss the forest for the trees. Aside from their blatant effort to provide supplemental briefing in

support of their previously-filed class certification motion – an attempt made without leave of

court – Plaintiffs’ contention that an unknown number of new potential plaintiffs, and therefore

class members, exist throughout the country fails to acknowledge that the individuals whose rights

Plaintiffs seek to protect includes persons with myriad case-specific distinctions that render them

unfit for class treatment. Ab initio, the known Plaintiffs’ claims are moot, and they have lacked a

viable class representative for several months. Many of these individuals are no longer subject to

the Office of Refugee Resettlement (“ORR”) policies, inasmuch as they are no longer detained, or

already obtained abortions. Plaintiffs’ motion is unclear on whether any known qualifying class

members indeed exist. We previously stated that Plaintiff Rochelle Garza cannot adequately

represent the putative class because Jane Doe, the UAC whom Ms. Garza once represented as a

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guardian ad litem, had an abortion, was then placed with a sponsor on Tuesday, January 15, 2018, and reached the age of majority. Ms. Garza’s claims are moot – and now, recognizing that, Plaintiffs have proposed to remove Ms. Garza as a plaintiff. If Ms. Doe was a named plaintiff independent of Ms. Garza, her claims would be moot, too. Ms. Roe, being age 19, was never a class member, and her subsequent release from ORR custody moots her claims. Ms. Moe similarly does not qualify as a class member because she, too, has been released from ORR custody to a sponsor, and has presumably exercised whatever rights she may have to an abortion. Ms. Poe, of course, has never wanted to be a class representative and has already obtained her abortion. The sponsorship placements and abortions obtained by the named plaintiffs (or the UACs whom they represented) also reinforce why they cannot establish the other requirements for class certification.
Furthermore, each putative class members’ claim requires individual attention and review, and does not lend itself to a one-size-fits-all result. The documents Plaintiffs cited also do not support their primary coercion contention. The documents Plaintiffs cite in fact show that Defendants employ reasonable, case-by-case methods in an effort to act in the best interests of minors regarding any and all abortion-related procedures, including discussing their situation and options with their families, as well as the medical details of the procedures they seek. This is not “coercion,” but rather responsible medical, social, and ethical behavior when dealing with minors who may not understand the nature of the action they are requesting, especially the potential lifelong emotional and medical consequences thereof. The Supreme Court has previously and unequivocally authorized engaging in such efforts to protect the best interests of minors.
There are also too few pregnant UACs requesting abortions to establish numerosity. The common constitutional questions alleged in the Second Amended Complaint are incapable of generating common answers – and supporting class certification – because ORR’s care of each pregnant UAC requesting an abortion depends on the facts and circumstances unique to the UAC.
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For example, the alleged potential Plaintiffs are of differing ages, may be at varying stages of the sponsorship process, and have disparate abilities to return to their home country. As another example, some Plaintiffs may indeed want to discuss their options with their families, while others may present distinct cultural or religious reasons to resist doing so. As the Supreme Court recently acknowledged, class certification should only occur where a Court can provide relief to each member of the class through a “single injunction or declaratory judgment.” Jennings v. Rodriguez, -- S. Ct. --- , 2018 WL 1054878 (Feb. 27, 2018). The named Plaintiffs’ own divergent experiences in the UAC program demand the denial of their motion for class certification. Consequently, Rule 23 precludes class certification.
LEGAL STANDARD FOR CLASS CERTIFICATION Plaintiffs “must affirmatively demonstrate [their] compliance” with Rule 23 of the Federal Rules of Civil Procedure. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). That is, they must show: (1) “that the class [be] so numerous that joinder of all members is impractical”; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the named plaintiffs are typical of claims or defenses of the class; and (4) the named plaintiffs will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). In addition, the proposed class must meet the additional requirements of Rule 23(b)(1), (2), or (3). See Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994). In the instant case, Plaintiffs apparently seek to proceed using a class defined as “all pregnant unaccompanied immigrant minors [‘UCs’] who are or will be in the legal custody of the federal government.” ECF No. 18 at 1-2 (bracket in original).1
1 Notably, Plaintiff’s Complaint identifies a different class “of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.” ECF No. 1 ¶ 47. That statement of the class has remained the same in Plaintiffs’ Amended Complaint (ECF No. 1 ¶ 47), Second Amended Complaint (ECF No. 104 ¶ 62), and the proposed Third Amended Complaint (ECF No. 118-1 ¶ 82).
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ARGUMENT I. Plaintiffs Cannot Serve as Class Representatives Because Their Claims Are Moot.
In Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2016), the U.S. Supreme Court held that the putative class representative’s “suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action.” The same is true for Ms. Doe, Ms. Roe, and Ms. Moe. Generally speaking, Plaintiffs Doe, Roe, and Moe are inadequate class representatives because their claims have become moot for several independent reasons, including: (1) release from ORR custody (Ms. Doe, Ms. Moe and Ms. Roe); (2) achieving an age of majority (Ms. Doe and Ms. Roe); or (3) having already obtained an abortion (Ms. Doe, Ms. Roe, and possibly Ms. Moe).2 By definition, their claims are moot, and they no longer have any rights to vindicate before the Court. So they cannot adequately represent the putative class comprised of UACs in ORR custody seeking abortion access.
In their renewed class certification motion, Plaintiffs contend that Genesis Healthcare “has no bearing” on this matter, overstating the D.C. Circuit’s holding in DL v. District of Columbia, 860 F.3d 713, 722 (D.C. Cir. 2017). Plaintiffs’ Renewed Class Certification Motion (ECF No. 121) at 11-12. Stated simply, the Court in DL did not erase the mootness doctrine as may apply to uncertified class actions in the absence of a justiciable controversy, and the general principle from Genesis Healthcare as applies to cases and controversies, or the lack thereof, thus remains valid, and applicable here. Importantly, in DL, far from informing the “inherently transitory” question, the Court expressly declined to address as unnecessary whether the “inherently transitory” exception applied to the mootness claim before the Court. DL, 860 F.3d at 722.
2 Plaintiffs’ Renewed Motion does not provide any details regarding whether Ms. Moe has, in fact, obtained an abortion.
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Regardless, the “inherently transitory” mootness exception remains inapplicable here. Plaintiffs’ own situations confirm this, inasmuch as the mootness of their claims belies the need to apply the exception. Plaintiffs have effectively conceded mootness, too, by raising the “inherently transitory” exception at all, since without mootness, there exists no need for an exception to it. Moreover, Ms. Roe’s situation is irrelevant to this discussion, since she was never properly a plaintiff here. As to the other identified Plaintiffs, Ms. Moe’s situation similarly fails, because she was released to a sponsor shortly after raising her claim. Plaintiffs Doe and Poe also received Court-ordered relief within two weeks of filing their claims, similarly mooting their claims. That the Court timely granted them relief, however, does not in and of itself engender the idea that their claims were “inherently transitory,” and in fact confirms that, contrary to the purpose of the “inherently transitory” exception, they were able to timely obtain the relief they sought before doing so lost value to them. No record evidence suggests that similarly situated individuals could not obtain comparable results on an individual basis, consistent with the case-by-case nature of the subject individuals’ situations. Absent more from Plaintiffs, the record here does not support finding that their claims, or those of anyone similarly situated, are so “inherently transitory” that the Court cannot timely rule on the class certification motion to preserve and sufficiently address such claims.
Further, the undeniable variety of circumstances each Plaintiff, or potential plaintiff, presents on this point alone cautions against both class certification and mootness avoidance, inasmuch as they are detained in different facilities, for varying lengths of time, at different stages of their pregnancies, with myriad personal issues that affect whether and why they may seek an abortion. Plaintiffs contend that the varying but brief amounts of time in which each Plaintiff sought an abortion and filed a claim before experiencing some event that altered their standing as a possible litigant materially drives this decision. Plaintiffs’ Renewed Class Certification Motion
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(ECF No. 121) at 10-11. This cabining of their claims ignores how distinct each Plaintiffs’ case is, especially in light of the ORR’s stated case-by-case review policy that requires delving into the totality of the circumstances for each individual, and leads to a differing results such as release to a sponsor.
To be sure, a pregnancy is fixed, and ending a pregnancy can moot out a claim. But the purpose of the “inherently transitory” mootness exception is to preserve access to judicial review, and proper resolution, of valid claims that would otherwise escape review. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991). In other words, the principle exists to avoid consistently applying unconstitutional practices and policies to anyone, for no matter how brief a time. In McLaughin, for example, the Court addressed Riverside County’s practice of detaining all individuals arrested without a warrant, i.e., without a judicially-approved declaration of probable cause for their arrest, until their bail hearing, which coincided with their arraignment. Id. at 49. This potentially resulted in individuals being held for up to a week without a hearing. Id. The Court held that the county could reasonably combine probable cause hearings with bail and arraignment hearings, provided that those occurred within forty-eight hours of the initial detention. Id. at 58. Such a policy could be uniformly applied to all subject individuals.
In this matter, the case-by-case totality of the circumstances policy as applied to the Plaintiffs, in and of itself, is not unconstitutional, and without question belies any uniform application. Plaintiffs speculate, without record support, that ORR has a “uniform policy” that imposes an “unconstitutional ban” on abortions for minors in immigration custody. Plaintiffs’ Renewed Class Certification Motion (ECF No. 121) at 6, 9. Unlike the policy as applied in McLaughlin, however, the system in place here varies as to each individual on a case-by-case basis, which is reasonable in light of the variety of circumstances each individual presents. Indeed, Plaintiffs cannot reasonably dispute that minors who enter immigration custody while pregnant do
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so at varying stages of their pregnancy, hail from different countries, have different ages and levels of maturity, have different potential to be promptly released to a parent or sponsor, and carry with them differing religious and cultural backgrounds that directly impact their abortion-related decision-making. Some may absolutely desire an abortion, while others are unsure of the decision, and still others may indeed desire to carry their babies to term. Some may wish to involve their family members, while others may be unsure, and still others would prefer not to involve any family whatsoever – although as ORR has reasoned all may benefit from that kind of consultation, which presents issues very different from the types of parental consent issues that arise with respect to state abortion laws domestically, given that the parents here are not in custody of their children. They are not all the same age; they are not all of the same maturity level; they may present distinct mental health issues that perhaps affect their decision-making abilities. And Congress directed ORR to oversee all these issues. This non-exhaustive list of potential variations presents a voluminous and yet merely partial example of why the totality of the circumstances case-by-case policy ORR employs does not fit within the “inherently transitory” exception, inasmuch as what remains consistent in cases to which that exception applies is the uniform application of a single policy to all subject individuals with consistent results. A case-by-case policy is unequivocally non-uniform, especially inasmuch as the results vary so widely.
II. Plaintiffs Still Cannot Establish Numerosity. Plaintiffs, in their renewed motion, say nothing in response to Defendants’ prior numerosity
statement. They vaguely identify minors in Arizona, Texas, and California, without providing further factual support or otherwise expressly adding them to the suit, and do not otherwise acknowledge the simple fact that the vast majority of pregnant UACs ultimately choose not to request an abortion, and therefore are not potential class members. See Defendants’ Response to Plaintiffs’ Motion for Provisional Class Certification and Notice, ECF No. 98.
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Further, as previously stated, the addition of Jane Moe as a plaintiff did not increase the size
of the putative class because her claims are moot, inasmuch as she has been released from ORR
custody, leaving her free to take whatever further steps she may choose to obtain an abortion. And
even if her claims were not moot, there would still be too few members of the putative class to
demonstrate numerosity. See generally ECF No. 104. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d
1546, 1553 (11th Cir.), cert. denied, 479 U.S. 883 (1986) (explaining that “while there is no fixed
numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with
numbers between varying according to other factors”) (internal punctuation omitted). Plaintiffs’
suggestion that there have been six girls in the past six months only underscores the scarcity of
such cases, just as the different circumstances each of those girls presented underscores the
inappropriateness of class treatment here.
III. Plaintiffs Still Cannot Establish Commonality or Typicality. Plaintiffs fail to establish the requisite commonality or typicality. In their Second Amended
Complaint, Plaintiffs allege:
Defendants have recently revised nationwide policies that allow them to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion in violation of their Fifth Amendment rights. Under these nationwide policies, Defendants also force unaccompanied minors who request abortion to visit a pre-approved anti-abortion crisis pregnancy center, which requires the minor to divulge the most intimate details of her life to an entity hostile to her abortion decision, in violation of her First and Fifth Amendment rights. Defendants also force minors to notify parents or other family members of their request for abortion and/or the termination of their pregnancy, or notify family members themselves, in violation of the First and Fifth Amendments.
Plaintiffs’ Second Amended Complaint, ECF No. 104 at 2. They claim that this policy gives rise to
three “common issues of law, including but not limited to: (i) whether ORR’s policy of exercising a
veto power over a UC’s abortion access violates class members’ constitutional rights; (ii) whether
HHS’s policy of requiring a forced visit to an anti-abortion crisis pregnancy center violates class
members’ constitutional rights; and (iii) whether disclosing – or forcing the class members to 8

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disclose – to parents or immigration sponsors their abortion decisions violate class members’ constitutional rights.” Id. at 14. Plaintiffs’ claims fail for two reasons.
First, Plaintiffs have not shown such a policy even exists. In their Second Amended Complaint, they merely allege that “ORR revised their policies to prohibit all federally funded shelters from taking ‘any action that facilitates’ abortion access for unaccompanied minors in their care without ‘direction and approval from the Director of ORR.’” ECF No. 104 at 10. Their renewed motion for class certification repeats this contention. ECF No. 121 at 8-9. Ab initio, longstanding HHS policy requires that ORR approve all significant, non-exigent medical procedures (including, but not limited to, terminations of pregnancy) for minors in its custody. ECF No. 10 at 4. Congress charged HHS with serving in the role of the child’s legal custodian. As part of that role, HHS is directed to place UACs “in the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), while in HHS custody—that is, until they are released to a suitable sponsor, obtain lawful status, or leave the country.3 See 6 U.S.C. § 279(g); 8 U.S.C § 1232(b)(1), (g). In placing children in the least restrictive setting, HHS also “consider[s] danger to self, danger to the community, and risk of flight.” Id.
Within HHS, ORR has long been responsible for the care and placement of UACs who enter the United States illegally and are “in federal custody by reason of their immigration status.” 6 U.S.C. § 279(b)(1)(A). ORR’s Director is responsible for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” and for “implementing policies with respect to the care and placement of unaccompanied
3 Once UACs attains the age of 18 years, they are transferred to DHS custody, which then is directed to consider placement in the “least restrictive setting available after taking into account the alien’s danger to self, danger to the community, and risk of flight.” 8 U.S.C § 1232(c)(2)(B). The statute also provides that “such aliens shall be eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the alien’s need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.” Id.
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alien children.” Id. § 279(b)(1)(A), (B). As part of Congress’s efforts to protect the child, federal law provides that the Director “shall not release” unaccompanied minor children “upon their own recognizance.” Id. § 279(b)(2)(B). Organizations that provide shelter and services to unaccompanied minor children do so at ORR’s direction and in compliance with ORR policies and procedures. See ECF No. 10-1. Notably, and in line with this standard, ORR mandates that personnel obtain necessary medical treatment for UACs faced with medical emergencies, including transporting them offsite where necessary. See U.S. Department of Health and Human Services, ORR Guide: Children Entering the United States Unaccompanied (“ORR Guide”) at § 3.4.5, https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied (last visited January 22, 2018) (providing, in cases of “medical emergencies,” defined as “a serious medical condition caused by injury, illness, or toxic exposure that is life threatening in nature,” that UAC may be transported to off-site medical care provider and accommodations made to “implement treatment recommendations”). The ORR Guide also addresses certain routine care, certain family planning services, medical examinations, appropriate mental health care, immunizations, and prescribed medications and special diets, but does not address elective serious medical procedures, outside of an emergency. See ORR Guide at § 3.4.
This broader policy has been in effect for several years. The fact that ORR requires approval from the Director of ORR, without more, falls short of bestowing upon Director Lloyd an unconstitutional veto in any application. There is nothing unconstitutional about the Director of ORR, whom Congress charged with the care of unaccompanied minors in federal custody, being involved in their decision to seek an elective abortion.
Similarly, there is nothing unconstitutional about ORR providing pregnancy counseling in its custodial capacity in a manner that favors life, or involving the minor’s parents in her home country when possible. Again, Director Lloyd testified that every elective abortion request is
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evaluated on a case-by-case basis, based on the totality of the circumstances for each individual. Plaintiffs’ Exhibit N, ECF No. 121-15 at 18-19 and 23-24 (Dep. Tr. Of S. Lloyd at 62:14-69:15, 82:9-86:4). And the ultimate goal, as is always the case when dealing with adjudicating major life decisions involving minors, is to act in the child’s best interests. Id. at 152:21-153:8; Belloti v. Baird, 443 U.S. 622, 634-40 (1979) (discussing how minors require special treatment under the law due to their “lack [of] experience, perspective and judgment” necessary to make critical life decisions, and thus finding that states may reasonably require parental consultation for a minor seeking an abortion). Plaintiffs further complain that the case-by-case policy, in practice, amounts to coercion. See ECF No. 121 generally. The record, however, belies any such claim, and ignores the reality government agencies interacting with minors face, as acknowledged in Belloti. While Plaintiffs contend that the unidentified Arizona minor was “coerced” to involve her parents, see ECF No. 121 at 4, the evidence shows that she was “offered” counseling, “to which [she] agreed;” and importantly, her objection was that her mother would disown her upon learning that she was pregnant, when in reality her mother was supportive. Plaintiffs’ Exhibit A, ECF No. 121-2 at 2-3. Similarly, contrary to Plaintiffs’ coercion claim, the Texas minor agreed to inform her mother and wanted to do so personally, after having originally objected to doing so. Plaintiffs’ Exhibit G, ECF No. 121-8 at 2. Plaintiffs further mischaracterize the record as to Jane Roe, claiming that ORR required that her family members be notified of her pregnancy and abortion decision, even absent her consent. ECF No. 121 at 5 (citing Plaintiffs’ Exhibit M, ECF No. 121-14 at 2-5). The correspondence to which Plaintiffs refer in fact describes how ORR should provide the described notice to Jane Roe’s sister, who indeed was already aware and supportive of Ms. Roe’s decision, in light of Ms. Roe’s difficult familial situation. Id. at 4-5. The correspondence states that “prior to her journey [to the United States, Ms. Roe] lived with her sister who [Ms. Roe] informed about the pregnancy and supports her decision to terminate.” Id. ORR Director Lloyd then expressly
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provided that “The sister should receive the notification of the pregnancy and the termination request, in the same way as if she were a parent.” Id. at 3. Plaintiffs’ suggestion that “coercion” is present where ORR pursues the notification of someone to whom Ms. Roe, herself, had already voluntarily disclosed her pregnancy and her desire to terminate, essentially confirming information she already knows, is beyond the pale.
To be sure, Plaintiffs describe other situations in which minors objected to their parents being notified of their child’s wish to procure an abortion, but that is precisely the scenario discussed, and authorized, in Belloti, 443 U.S. at 634-40, albeit subject to reasonable accommodations. Moreover, the situation ORR faces here is far different than a more-typical case, as was the situation in Belloti, in which a parent remains in custody of their child, and can thus exercise far more persuasive authority over the child’s decision-making. The children here are sometimes thousands of miles away from their nearest relative, and located in another country. The minors typically lack financial resources to provide even basic care for themselves. The children often do not speak English, and lack the ability to join the workforce for lack of authority to do so, as well as for lack of job-skills. While they may have had at least some semblance of a support network in their home country, the children, upon arrival in the United States, rarely have anyone trustworthy to whom they can turn for assistance or guidance. To that end, as the Supreme Court recognized in Belloti, 443 U.S. at 641 n. 21 (citing Doe v. Bolton, 410 U.S. 179 (1973)), the attending physician plays a crucial role in the abortion process, but children in general lack the means or experience dealing with medical professionals to select only ethical and competent medical care. These unaccompanied minors face all of the further complications as detailed above, on top of not knowing to whom they can turn and trust for professional medical care. Congress called upon ORR to step in to fill these voids. 6 U.S.C. § 279(b)(1)(A).
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The Supreme Court has long recognized that parents play a hugely critical role in preparing their child to be a responsible member of society, retaining both a right to do so, but also a “high duty” to mold their child into a socially responsible citizen. Id. at 637-38 (citing Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), and Wisconsin v. Yoder, 406 U.S. 205, 233 (1972)). Without question, the role of the parent as the steward for their child’s maturation remains paramount. Belloti, 443 U.S. at 638 (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)); see also Ginsberg v. New York, 390 U.S. 629, 639 (1968) (explaining that constitutional interpretations have long acknowledged that parental authority over child-rearing embodies a fundamental building block of American society). Parents retain this role because, as confirmed through scientific and sociological studies, children lack the maturity and sense of responsibility central to making critical life-decisions. Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Eddings v. Oklahoma, 455 U.S. 104, 115-16 (1982) (noting that children lack the experience, perspective, and judgment of adults) (citation omitted). Parents typically bridge this gap, so as to avoid requiring State involvement in personal decision-making and childhood development if at all possible. Ginsberg, 390 U.S. at 639 (citing Prince, 321 U.S. at 166).
Here, ORR is called upon to act as the ultimate decision-maker, often in the absence of contact with any parent or responsible family member. The minors in ORR custody, by definition, are unaccompanied – essentially parentless – and thus wards of the State. Similarly absent is the risk of retaliation or maltreatment from ORR, should the minor seek action ORR does not recommend or endorse after proper review. And perhaps most substantially missing here is the parental role of assuaging the impact of such a substantial life event on a young person. Further complicating this situation, and rendering it fundamentally distinct from the wide variety of state laws and cases on the subject of parental or familial notification for minors seeking abortion, is the fact that ORR will always know about the abortion request under the circumstances. A majority of
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states, thirty-seven, require minors to notify their parents that they intend to seek an abortion, while also providing for various judicial bypass procedures to that requirement. See Guttmacher Institute, Parental Involvement in Minors’ Abortions, State Laws and Policies as of March 1, 2018, https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions (last visited March 12, 2018). In some states, absent a requirement that the parents receive notice, or if the child employs one of the judicial bypass options, the parents may never know their child was even pregnant. ORR, as the custodian and caretaker, will always be aware of an unaccompanied minor’s intent to seek an abortion. Congress, by appointing ORR as both the de jure caregiver and the de facto parent for unaccompanied pregnant minors, placed ORR squarely in the middle of an already complicated situation, and the judicial bypass option simply is inapposite. Handling this situation for ORR requires seeking to maintain a delicate balance between the best interests of the child, and ORR’s dual role as both a government agency and a de facto parent. The case-by-case totality of the circumstances method accomplishes this goal.
Again, Courts have long recognized that minors generally lack the maturity or life experience to knowingly make difficult life decisions, and involving experts, counselors, and parents or other family members, goes directly to enabling action that is in the child’s best interests. Id. Doing so, after careful consideration of the totality of the circumstances, fulfills precisely the role government plays in resolving such difficult situations involving individuals legally incapable of independently handling them. Id. Congress, by calling upon ORR to act in the child’s best interests, bestowed upon ORR the weighty responsibility of essentially stepping in to act as these children’s parents. As such, the facts, as Plaintiffs allege in their Second Amended Complaint, and reiterated in their latest class certification motion, simply do not establish the existence of a nationwide policy that is tantamount to an unconstitutional veto over the constitutional rights of unaccompanied minors in their care.
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Second, even if such a policy existed, its constitutionality is not a question that can be answered on a class-wide basis because the undue burden analysis requires an individualized determination. To show commonality, “what matters . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, 564 U.S. at 350 (internal quotation omitted). Further, “commonality is established by a common issue the resolution of which will advance the litigation, but is lacking where the case will turn on a series of individualized inquiries.” Disability Rights Council of Greater Washington v. WMATA, 239 F.R.D. 9, 26 (D.D.C. 2006) (quoting Love v. Johanns, 439 F.3d 723, 730 (D.C. Cir. 2006) (internal quotations and citations omitted).
Moreover, the Supreme Court recently reiterated that class certification applies “‘only when a single injunction or declaratory judgment would provide relief to each member of the class.’” Jennings, 2018 WL 1054878 at * 19 (quoting Wal-Mart Stores, 564 U.S. at 360). No such single result is possible here, especially in light of the conceded variances in circumstances as to each individual Plaintiffs have identified, and certainly impossible with respect to the speculative unidentified similarly-situated individuals Plaintiffs posit exist.
Indeed, whether any alleged ORR policy imposes an undue burden requires an individualized analysis of factors including the ability to obtain a sponsor, the age of the minor, and the state of residence. The various circumstances of the named Plaintiffs only bears out the reality. For instance, Ms. Moe, who was released to a sponsor just two weeks after requesting an abortion, ECF No. 114, would be unable to establish a constitutional violation, given that the Supreme Court has already approved of state law regimes that take longer to resolve whether a child may consent to an abortion. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990) (acknowledging that bypass “procedure may require up to 22 days in a rare case” and explaining
15

Case 1:17-cv-02122-TSC Document 124 Filed 03/16/18 Page 16 of 18 that Court has “upheld a Missouri statute that contained a bypass procedure that could require 17 calendar days plus a sufficient time for deliberation and decisionmaking at both the trial and appellate levels”); id. at 532 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting) (“Ohio’s judicial-bypass procedure can consume up to three weeks of a young woman's pregnancy.”). This illustrates that the constitutional analysis for each individual UAC is different, indicating that there would be different “answers” to the allegedly common questions about ORR’s alleged policy, thus rendering commonality lacking. See Jennings, 2018 WL 1054878 at * 19; see also Wal-Mart Stores, 564 U.S. at 350. For these reasons, Plaintiffs cannot establish commonality or typicality for class certification.
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CONCLUSION Accordingly, this Court should deny Plaintiffs’ Renewed Motion for Class Certification and
a preliminary injunction.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
AUGUST E. FLENTJE Special Counsel Civil Division ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation
BY: /s/ W. Daniel Shieh W. DANIEL SHIEH SABATINO F. LEO JOSEPH DARROW MICHAEL C. HEYSE Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-9802 Fax: (202) 305-1890 daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov joseph.a.darrow@usdoj.gov michael.heyse@usdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on March 16, 2018, I caused a copy of the foregoing Defendants’ Opposition to Plaintiffs’ Renewed Motion for Class Certification and a Preliminary Injunction to be filed with the Clerk of the Court using the Court’s CM/ECF system. Counsel for Plaintiffs are registered CM/ECF users, and will be served exclusively through that system.
/s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney

 
 Case 1:17-cv-02122-TSC Document 125 Filed 03/23/18 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF THEIR RENEWED MOTION FOR CLASS CERTIFICATION AND A PRELIMINARY INJUNCTION
Defendants repeatedly, and baldy, assert that they have no uniform policy of coercing young women to carry their pregnancies to term and, when that fails, denying them abortion access entirely. But merely repeating an argument does not make it true. Defendants’ position is disingenuous and belied by the facts. The record shows that Defendants have a clear, written, consistently enforced policy of denying abortion access by any means necessary and under all circumstances, except when the pregnancy is life-threatening. The record also shows that this policy has been and continues to be applied to all pregnant minors in Defendants’ legal custody, in direct violation of decades of well-settled Supreme Court precedent. Accordingly, this Court should quickly certify a class, and grant Plaintiffs’ request for a preliminary injunction.
ARGUMENT I. Defendants Have a Uniform Policy of Coercion and Outright Obstruction of
Abortion. Contrary to Defendants’ claims, Plaintiffs have provided abundant evidence demonstrating that Defendants have a uniform policy of attempting to coerce minors to carry

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their pregnancies to term and, if those attempts fail, blocking abortion access altogether. See, e.g., Pls.’ Reply in Further Supp. of Class Certification (“Pls.’ Reply”) 4–6, ECF No. 56; Pls.’ Renewed Mot. for Class Certification & Prelim. Inj. (“Pls.’ Renewed Mot.”) 5–9, ECF No. 121. For example, Defendants admit they have a policy of informing parents, or other family members, about minors’ abortion requests, even against the minors’ will. Defs.’ Opp’n to Pls.’ Renewed Mot. (“Defs.’ Br.”) 7, ECF No. 124 (“ORR has reasoned all may benefit from” consultation with a family member).1 Defendants are fully aware that this policy often results in parents putting pressure on their daughters to carry their pregnancies to term. See, e.g., Amiri Decl. Ex. I at PRICE_PROD_00015508, ECF No. 121-10. Defendants also admit that they have created a formal list of pre-approved centers – all of which are religiously affiliated anti-abortion centers – where a minor who seeks access to abortion must first receive “counseling.” Amiri Decl. Ex. D at 92:8 – 94:6, ECF No. 121-5; Amiri Decl. Ex. N at 159:12 – 162:10, ECF No. 12115. If a young woman withstands these and possibly other coercive tactics and continues to seek access to abortion, Defendants admit they have a policy of requiring that a minor’s abortion request receive final “approval from the Director of ORR.” Defs.’ Br. 10. But far from being considered on a “case-by-case” basis, a minor’s request will face a rubberstamp denial. Indeed, Defendant Lloyd has admitted that he has not approved a single abortion request – even where the pregnancy was the result of rape – in part because of his belief that abortion is the
1 Under their policy, Defendants require parents to be informed of the minor’s abortion decision, even if the minor objects. Although Defendants give the minor the “choice” of whether to inform her parent herself, or whether she wants Defendants to do so, see B. Amiri Decl. in Supp. of Pls.’ Renewed Mot. (“Amiri Decl.”) Ex. M at PRICE_PROD_00015594, ECF No. 121-14, this is obviously no choice at all for a young woman who does not want her parents to be informed. Defendants cannot therefore be taken seriously when they claim that a minor who “agreed” to tell her parents is acting freely. Defs.’ Br. 11.
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“destruction of human life,” and he cannot articulate any circumstances under which he would do so. See Amiri Decl. Ex. N at 64:22 – 69:8; 114:11-13, ECF No. 121-15.
II. This Court Should Grant Plaintiffs’ Motion for Class Certification. A. Plaintiffs Have Established Commonality and Typicality.
Defendants repeat two stale arguments with respect to Plaintiffs’ ability to satisfy the commonality and typicality requirements for class certification, both of which remain unavailing. Defs.’ Br. 9–16. First, Defendants’ incredible assertion that no uniform policy even exists, Defs.’ Br. 9, is, as already explained, belied by the evidentiary record, now more than ever. See supra Section I. Second, Defendants’ claim that minor factual variations in individual class members’ circumstances defeat commonality and typicality, Defs.’ Br. 15–16, is, for reasons already explained, erroneous. See Pls.’ Reply 7–9. These differences do not alter how Defendants’ uniform policy of coercion and obstruction is applied; they do not affect the central common question of whether Defendants’ policy is unconstitutional; and they do not affect whether this Court can grant injunctive and/or declaratory relief that would protect all pregnant minors in Defendants’ custody.2 Id.; see also Nio v. U.S. Dep’t of Homeland Sec., No. CV 17-998 (ESH), 2017 WL 4876276, at *3 (D.D.C. Oct. 27, 2017) (“factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is
2 Defendants’ assertion that Ms. Moe’s case counsels otherwise, Defs.’ Br. at 15–16, is severely misguided. That the Supreme Court acknowledged that a state’s judicial bypass process may take a certain number of days does not give Defendants carte blanche to independently obstruct a minor’s access to abortion for the same number of days – and to deny her abortion access entirely – without running afoul of the Constitution. In any event, the Supreme Court has more recently made clear that a government imposed delay of a length similar to the examples Defendants cite is unconstitutional. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2318 (2016) (striking down abortion restriction that resulted in three week wait time for appointments).
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common to all proposed class members”); Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394, 420 (D.D.C. 2017) (holding that “[f]actual variations between the claims of class representatives and the claims of other class members do not negate typicality” and that “[p]laintiffs’ claims are typical if they arise from the same course of events” such as “application of [a] [p]olicy” and “class members make similar legal arguments”) (citing Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987)); Bynum v. District of Columbia, 214 F.R.D. 27, 33–35 (D.D.C. 2003).
B. Plaintiffs Have Established Numerosity. Defendants also recycle their same arguments with respect to numerosity, once again attempting to restrictively re-define the class. Defs.’ Br. 7–8. But, as Plaintiffs have already explained, that not all pregnant minors submit a formal request to access abortion is irrelevant. The evidence shows that all pregnant minors – which, Defendants admit, total in the hundreds in any given year, Defs.’ Opp’n to Pls.’ Mot. for Class Certification 22, ECF No. 53 – are subject to, affected by, and injured by Defendants’ policy of withholding non-biased information about abortion, and pressuring minors to refrain from formally requesting abortion in the first place. See Pls.’ Reply 18–19. Regardless, even accepting Defendants’ unduly restrictive class definition would not negate the numerosity of the class. The record now reveals that ORR has subjected at least 11 young women to its challenged policy in the span of less than a year. This number is certainly under-inclusive, as it reflects only the minors of whom Plaintiffs’ counsel have become aware through limited discovery in another case, and through anonymous tips. Considering these facts, in conjunction with the impracticability of joining each class member as an individual plaintiff, see Pls.’ Reply 19–20, and that – as Defendants’ acknowledge – there is “no fixed
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numerosity rule,” Defs.’ Br. 88 (internal quotation marks omitted), it is clear that the putative class is adequately numerous.
C. Plaintiffs Will Adequately Represent the Class In Litigating Inherently Transitory Claims.
Finally, Defendants repeat their assertion that, pursuant to Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), Ms. Doe, Ms. Roe, and Ms. Moe are inadequate class representatives because their individual abortion access claims became moot before this Court was able to certify a class. Defs.’ Br. 4. Not so. First, unable to wriggle out from under the fact that “courts have universally concluded that the Genesis discussion does not apply to class actions,” Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014) aff’d, 136 S. Ct. 663 (2016), Defendants mischaracterize Plaintiffs’ argument with respect to how this Circuit has interpreted Genesis. Plaintiffs are not arguing that DL v. District of Columbia, 860 F.3d 713 (D.C. Cir. 2017), “erase[d] the mootness doctrine,” Defs.’ Br. 4 – only that, as the DL court explained, “[t]he outcome in Genesis Healthcare [] hinged on the unique features of the FLSA cause of action,” rather than the features of class actions suits, such as the one at issue here, which are to be governed instead by Rule 23 and U.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980). 860 F.3d at 722 (emphasis added). Moreover, that the DL court, having already applied the relation back doctrine, “ha[d] no need to consider whether the [plaintiffs’] claims also f[e]ll under the ‘inherently transitory’ exception to mootness,” id., is irrelevant. Plaintiffs cite DL not for its application of the inherently transitory exception, but to show that this Circuit has adopted the Supreme Court’s holding that the “inherently transitory” exception may be applied to permit class actions to proceed even where the named plaintiff’s claims expire before the court can certify the class. Id. at 721.
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Since they cannot dispute this crucial fact, Defendants move instead to arguing that the “inherently transitory” exception to mootness is inapplicable here because this Court’s expeditious granting of a series of individual emergency requests for temporary injunctive relief shows that there is no need to preserve the merits of the class claims for final judicial resolution. See Defs.’ Br. 4–7. But in making that argument, Defendants misrepresent the inherently transitory test. Binding precedent makes clear that the relevant question as to the applicability of the “inherently transitory” exception is not – as Defendants suggest – whether a court has the capacity to rule quickly on a succession of near-identical individual emergency requests for relief from the same challenged policy, but is instead whether it is unlikely that the trial court will have “enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Geraghty, 445 U.S. at 399 (emphasis added). Plaintiffs have already shown that their claims are sufficiently transitory such that this Court has not had enough time to rule on class certification. Pls.’ Renewed Mot. 10.3 Moreover, the fact that all four named plaintiffs sought and obtained relief within extremely short time spans, – as Defendants’ acknowledge, Defs.’ Br. 5 – before this Court could rule on class certification, buttresses Plaintiffs’ assertion that the fluidity of the class makes it impossible to ensure that any named plaintiff will retain a live claim long enough for this court to rule on class certification. 4 See Pls.’ Reply 13–15. At the same time, because Defendants continue to apply
3 Indeed, Plaintiffs’ previous statement that this Court had as few as 12 days to rule on class certification while Ms. Doe’s Fifth Amendment claim regarding abortion access remained live, ECF No. 121 at 10, was in fact an over-estimation – this court actually had even less time, as Ms. Doe obtained her abortion on October 25, 2017, a mere 7 days after she filed her motion for class certification on October 18, 2017. 4 Defendants’ argument that “Ms. Roe’s situation is irrelevant to this discussion, since she was never properly a plaintiff here,” Defs.’ Br. 5, is presumably based on their disputed claim that
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their uniform policy to all pregnant minors in their care, supra Section I; Pls.’ Renewed Mot. 5, it is certain that other similarly situated class members will suffer the same alleged harms absent judicial intervention. This exact rationale undergirded the Supreme Court’s application of the inherently transitory exception in Gerstein v. Pugh, 420 U.S. 103 (1975). Id. at 110 n.11 (finding that the inherently transitory exception applied where the length of the alleged harm of pretrial detention “cannot be ascertained at the outset” and “may be ended at any time,” making it “by no means certain that any given individual, named as plaintiff, would” suffer the alleged harm long enough for a district court to certify a class, even though “the constant existence of a class of persons suffering the deprivation [was] certain”). Accordingly, it supports doing the same here.
Defendants’ argument that individualized, emergency relief will be sufficient to address the harms imposed on other putative class members is defective in other respects too. It ignores both (1) that Plaintiffs’ counsel has experienced serious difficulty in locating putative class members, relying primarily on anonymous tips, and thus it is virtually certain that, absent class certification, individual putative class members will slip through the cracks and continue to suffer irreparable harm – which is just what Defendants want; and (2) that the Rule 23 class action was in fact designed to protect against precisely the chaotic, ad-hoc procedure that
Ms. Roe is 19 years old. See, e.g., Pls.’ Reply in Further Supp. of Mot. for Prov. Class Certification & Notice, 1 n.1, ECF No. 103. But regardless of Ms. Roe’s true age, it is undisputed that at the time she filed an application for a TRO in this Court, she was being detained in Defendants’ custody as an unaccompanied minor and was being blocked from accessing the abortion she desired. She was therefore properly a plaintiff in this case. Moreover, Defendants should not be permitted to defeat class certification and prevent this Court from reaching the merits of this case by employing a litigation strategy through which they surreptitiously pick off plaintiffs and potential plaintiffs by, among other things, expediting minors’ release to sponsors, expediting voluntary departure, raising sudden disputes as to the minors’ true age, and even releasing minors onto their own recognizance.
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Defendants advocate for here, to save courts from having to expend unnecessary time and energy reviewing near-identical emergency claims for relief over and over again, on a fire-drill basis. See Chang v. United States, 217 F.R.D. 262, 268 (D.D.C. 2003) (“’It is, of course, well established that a principal purpose of the class-action mechanism is to advance the efficiency and economy of multi-party litigation.’”) (quoting McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984)).
Rather than seriously contending with these problems, Defendants fall back upon the same unavailing argument they make with respect to commonality and typicality – namely, that proceeding in an inefficient, risky and piece-meal fashion is necessary because ORR uses a “totality of the circumstances case-by-case” test to determine whether to grant each individual minor’s allegedly factually distinct request to access abortion. Defs.’ Br. 6–7. As already explained, this argument is belied by the evidentiary record, which shows that Defendants have adopted a uniform policy that ensures all pregnant minors continue their pregnancies while in ORR custody, regardless of their age, physical location, length of pregnancy, etc. See supra Section I; Pls.’ Reply. Moreover, Defendants cite no case holding that the applicability of the inherently transitory exception is dependent upon the challenged policy being enforced in an identical manner against factually indistinguishable plaintiffs. Contrary to their implication, Defs.’ Br. 6, County of Riverside v. McLaughlin, 500 U.S. 44 (1991) held no such thing. Indeed, the McLaughlin Court determined that the inherently transitory exception applied even though the named plaintiffs’ claims had been rendered moot because “they either received probable cause determinations or were released [from custody],” which indicates that factual variances do not defeat the “inherently transitory” exception. 500 U.S. at 51 (emphasis added).
III. This Court Should Preliminarily Enjoin Defendants’ Policy.
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As already briefed extensively, Plaintiffs also meet all the factors for a preliminary injunction. Plaintiffs’ recent supplement, ECF Nos. 121–122-7, intended simply to provide the Court with new information pertinent to both pending motions and to underscore the irreparable harm that Defendants are continuing to inflict on unaccompanied minors. As this Court has already found in granting temporary restraining orders to the named Plaintiffs, Defendants’ prohibition on abortion access subjects minors to “irreparable injury in the form of, at a minimum, increased risk to their health, and perhaps the permanent inability to obtain a desired abortion to which they are legally entitled.” TRO 4, ECF No. 73.
Defendants wholly ignore the harm caused by their no-abortion policy, and instead only address the revelation of the abortion decision to parents and sponsors. See Defs.’ Br. 10–14. In doing so, Defendants minimize the harm by claiming that the minors’ parents are far away and therefore cannot block the abortion. Id. at 12. But the distance of a minor’s parent is irrelevant here, just as it would be irrelevant for a minor in a domestic foster care setting, or a minor who did not live with one parent after divorce, because blocking an abortion is not the only harm that a parent can inflict on a child. Numerous courts have found that disclosure of a woman’s abortion decision to others exposes a woman to serious risks, including harm, harassment, and abuse. See Pls.’ Reply in Further Supp. of Emergency Mot. to Extend the TRO for Jane Roe and Jane Poe, 3–4, ECF No. 96 (collecting cases). Indeed, ORR’s Deputy Director himself testified that telling a minor’s parents over the minor’s objection can cause “additional harm or risk.” Amiri Decl. Ex. D at 42:3 – 43:1, ECF No. 121-5. The evidence also demonstrates that this is true. See, e.g., Amiri Decl. Ex. J, ECF No. 121-11; Amiri Decl. Ex. D, at 84:9-17, ECF No. 1215.
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Furthermore, this Court has also already found in the context of temporary restraining orders that Plaintiffs are likely to succeed on the merits of their claims. See, e.g., TRO 4, ECF No. 73. In attempting to defend the constitutionality of their policy, Defendants make the stunning claim that ORR is the “ultimate decision-maker” of unaccompanied minors’ abortion decisions. Defs.’ Br. 13. This statement flies in the face of decades of Supreme Court precedent. As the Court has repeatedly made clear, no parent, guardian, or custodian can be the “ultimate decision-maker” of whether a minor has an abortion. See, e.g., Bellotti v. Baird, 443 U.S. 622, 643 (1979) (holding that the “unique nature” of the abortion decision makes it inappropriate to give a third-party an absolute veto over a minor’s abortion decision); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899 (1992) (reaffirming that a state may not require parental notification absent an adequate judicial bypass option); Planned Parenthood of Mo.v. Danforth, 428 U.S. 52, 75 (1976) (holding that no state interest justifies a law giving parents veto power over their daughters’ abortion decision). Contrary to Defendants’ extraordinary misrepresentation of Bellotti, Defs.’ Br. 12–13, the Court in that case made clear that “the potentially severe detriment facing a pregnant woman . . . is not mitigated by her minority . . . [and] unwanted motherhood may be exceptionally burdensome for a minor.” Bellotti, 443 U.S. at 642 (citation omitted).
Moreover, contrary to Defendants’ claims, Congress did not grant ORR parental rights, and it certainly did not – and could not – give ORR the right to veto a minor’s abortion decision. Rather, Congress gave ORR the responsibility of ensuring that the best interests of the minor are considered in decisions related to their care. 6 U.S.C. § 279(b)(1)(A). Defendants have abused that responsibility. Indeed, rather than acting in the minor’s best interests, Defendant Lloyd is supplanting his decision about abortion for the minor’s decision and, in so doing, subordinating
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the minor’s health and welfare to his own personal religious beliefs. Notably, even in situations where a court has determined that a minor may consent to an abortion on her own, either because she is sufficiently mature or because an abortion without parental involvement is in her best interest, Defendants have subjected the minor to their coercive tactics and have vetoed her abortion decision. See, e.g., Decl. of Jane Doe, ECF No. 5-2; Decl. of B. Amiri in Supp. of Pls.’ Reply in Further Supp. of Class Cert. Ex. G 2, ECF No. 56-8. The length to which Defendant Lloyd is willing to go is crystalized in his shocking memorandum about Jane Poe: he denied Ms. Poe access to abortion, despite the fact that she had been raped and had expressed an intent to harm herself if she were forced to carry the pregnancy to term, and he based his decision on his personal objection to “participat[ing] in killing a human being in [ORR’s] care.” Defendant Lloyd’s Note to File, Dec. 17, 2017, 8, ECF No. 92-1. In other words, Defendant Lloyd’s decision had nothing to do with the objective best interests of Ms. Poe, and everything to do with Defendant Lloyd’s anti-abortion ideology.
Finally, Defendants’ policy contradicts their claim that, unlike with a parent, there is no “risk of retaliation or maltreatment from ORR, should the minor seek action ORR does not recommend or endorse.” Defs.’ Br. 13. If a minor requests an abortion – a medical procedure Defendants oppose – the record reveals that she will be subjected to shame, stigma, and humiliation; forced to undergo unnecessary ultrasounds; and pushed further into her pregnancy against her will, increasing the risks associated with the abortion while Defendants ultimately deny her access to abortion. See, e.g., ECF Nos. 5-1–5-13; 56–56-12; 121–122-7. Thus, for all the reasons stated above, and in Plaintiffs’ prior briefs, Defendants’ arguments in opposition to Plaintiffs’ request for a preliminary injunction should be rejected.
CONCLUSION
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In sum, for all the forgoing reasons, and the reasons discussed in Plaintiffs’ prior briefs, Plaintiffs respectfully request that this Court certify the putative class, and issue a preliminary injunction protecting class members from further irreparable harm.

DATED: March 23, 2018

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org sknizhnik@acludc.org
/s/ Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111

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Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 Fax (415) 275-8550 mwroe@rshc-law.com *Admitted pro hac vice Attorneys for Plaintiffs
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 Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

MEMORANDUM OPINION AND ORDER Plaintiff Rochelle Garza, on behalf of a putative class of unaccompanied, undocumented minors, has sued Eric Hargan, Acting Secretary of the Department of Health and Human Services, Stephen Wagner, Acting Assistant Secretary of the Administration for Children and Families, and E. Scott Lloyd, Director of the Office of Refugee Resettlement, alleging that Defendants have violated the minors’ constitutional rights by preventing them from terminating their pregnancies or otherwise availing themselves of the full panoply of legally available reproductive healthcare services while in federal custody. Pending before the court are Plaintiffs’ Motion for Class Certification (ECF No. 18) and Motion for a Preliminary Injunction (ECF No. 5). Having reviewed the parties’ filings (including the briefs of amici curiae), the record, and the relevant case law, the court hereby GRANTS Plaintiffs’ Motion for Class Certification. The relevant class is defined as all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government. For the

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reasons set forth below, the court further GRANTS Plaintiffs’ Motion for a Preliminary Injunction.
I. BACKGROUND The Office of Refugee Resettlement (ORR), which is headed by its Director, E. Scott Lloyd, is responsible for “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status.” 6 U.S.C. § 279(b)(1)(A). As part of that responsibility, ORR is charged with “making placement determinations” for UCs, “implementing the placement determinations,” “implementing policies with respect to the care and placement” of UCs, and housing them. Id. § 279(b)(1)(C)–(L). In executing these duties, ORR is charged with “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied minor child.” Id. § 279(b)(1)(B). ORR places UCs with federal grantee organizations that provide shelter and services in compliance with ORR policies and procedures. (ECF No. 10-1 ¶¶5–6). In March 2017, ORR instructed employees at federally funded shelters that they “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR,” (ECF No. 5-4), are required to “notify ORR through [assigned federal staff] immediately of any request or interest on any girl’s part in terminating her pregnancy,” (ECF No. 5-5 at 5), and are not permitted to “support[] abortion services pre or post-release; only pregnancy services and life-affirming options counseling.” (ECF No. 5-6 at 2). The Director’s approval must be in the form of written authorization, and is required “whether the procedure will be paid for with Federal funds or by other means.” (ECF No. 5-5 at 3). “Facilitation” includes all actions relating to scheduling appointments, arranging transportation, pursuing a judicial bypass, “or any other facilitative step” in relation to an abortion procedure. (ECF No. 5-
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5 at 5). The record indicates that a UC seeking an abortion must also obtain an ultrasound and options counseling from a provider on a pre-approved list, and “obtain parental consent, which will necessitate options counseling with [her parents], plus signed, notarized declaration of consent.” (ECF No. 5-10 at 3; see also ECF No. 5-9 at 2).
A. Proposed Class and Class Representatives Plaintiffs seek to form a class that would include all pregnant UCs who are or will be in
federal custody and, accordingly, are or will be subject to ORR’s policies or practices. Named Plaintiffs include four female UCs—Jane Doe (J.D.), Jane Roe (J.R.), Jane Poe (J.P.), and Jane Moe (J.M.)—each of whom has at some point been both pregnant and in ORR custody since Plaintiffs filed the case in October 2017.
1. Jane Doe J.D., the original named plaintiff in this case, is a UC who entered the United States in September 2017, when she was 17 years old. She was apprehended at the U.S. border and remanded to ORR custody at a shelter in Texas. (Findings of Fact in Supp. of Am. TRO ¶¶1–2, ECF No. 30). After a medical examination confirmed that she was pregnant, J.D. sought to terminate her pregnancy, and with the assistance of a guardian ad litem and an attorney ad litem, sought and received a judicial bypass of Texas’s parental notification and consent requirements. (ECF No. 30 ¶¶3–4). J.D. obtained private funding for the procedure, and her guardian and/or attorney ad litem agreed to transport her to have the procedure. (ECF No. 30 ¶10). Nevertheless, when J.D. attempted to complete the final stages of Texas’s procedure for obtaining an abortion, Defendants refused to transport her to the facility and refused to allow anyone else to transport her, claiming that transporting J.D. or allowing her transportation would constitute “facilitation.” (ECF No. 30 ¶6). Defendants maintained that under ORR policy, J.D.
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could obtain an abortion by leaving ORR’s custody in one of two ways: (1) if a third party were to indicate a willingness to serve as a sponsor for J.D., qualify for that position under applicable legal requirements, complete the administrative review process, and obtain ORR approval; or (2) if J.D. were to voluntarily self-deport to her home country, where Defendants conceded that abortion is illegal. (ECF No. 30 ¶8).
Defendants also employed other means to dissuade J.D. from having an abortion, such as requiring her to undergo counseling from a religiously-affiliated crisis pregnancy center (some version of which appears to be mandatory for all pregnant minors seeking termination while in ORR custody)1, and requiring her to view a sonogram. (ECF No. 30 ¶7). ORR also notified J.D.’s mother of her decision, despite the fact that J.D. had informed ORR that her parents were abusive, and that she fears returning to her home country for that reason. (Decl. of Marie Christine Cortez ¶¶8, 11, ECF No. 41-1).
This court granted J.D.’s request for injunctive relief on October 18, 2017. Defendants immediately sought an emergency stay pending appeal, which a divided panel of the D.C. Circuit granted in part on October 20, over the dissenting statement of Circuit Judge Millett. On October 24, however, the D.C. Circuit, sitting en banc, permitted the injunction to go into effect, “substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.” Garza v. Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017) (mem). J.D. was able to terminate her pregnancy, and was released to a sponsor on January 15, 2018. (Decl. of Jonathan White ¶4, ECF No. 115-1).
1 (See ECF No. 121-3 at 2, 4 (noting requirement for “spiritual counseling” and “life-affirming options counseling”); ECF No. 121-15 at 161–62.
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2. Jane Poe J.P. is a 17-year old UC who was detained at the U.S. border and remanded to ORR custody at a shelter in an undisclosed location. In or around the week of December 11, 2017, J.P.’s physician informed her that her pregnancy had entered the second trimester. After discussing her options with her physician, J.P. decided to terminate the pregnancy. (TRO ¶7, ECF No. 73). J.P. was prevented from doing so by the ORR policy, and Government counsel subsequently produced, at the court’s request, a document memorializing that decision. (ORR Decision Doc., ECF No. 92-1). The document indicates that J.P.’s pregnancy was a result of rape in her home country, prior to her journey to the United States. (ECF No. 92-1 at 1–2). J.P. also reported that although she faced substantial family pressure to continue with the pregnancy, she had made three requests to have an abortion. (ECF No. 92-1 at 2). The document also reveals the basis of ORR’s decision to forbid J.P. from obtaining an abortion—namely, Director Lloyd’s belief that abortion constitutes “violence that has the ultimate destruction of another human being as its goal,” that “abortion does not here cure the reality that she is the victim of an assault,” that “[t]o decline to assist in an abortion here is to decline to participate in violence against an innocent life.” (ECF No. 92-1 at 7–8). Lloyd also stated: At bottom, this is a question of what is in the interest of the young woman and her child. How could abortion be in their best interest where other options are available, and where the child might even survive outside the womb at this stage of the pregnancy? Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her. I conclude that it is not in her interest. (ECF No. 92-1 at 8). The Decision Document concluded: Refuge is the basis of our name and is at the core of what we provide, and we provide this to all the minors in our care, including their unborn children, every day. In this request, we are being asked to participate in killing a human being in our care. I cannot direct the program to proceed in this manner. We cannot be a
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place of refuge while we are at the same time a place of violence. We have to choose, and we ought to choose to protect life rather than to destroy it. (ECF No. 92-1 at 8). This court granted J.P.’s request for injunctive relief on December 18, 2017. (ECF No. 73). ORR elected not to appeal this court’s order, and allowed J.P. to obtain an abortion procedure. (See Appellants’ Emergency Mot. for Stay Pending Appeal at 1 n.1, ECF No. 79-1). As far as the court is aware, J.P. remains in ORR custody. 3. Jane Roe J.R. is a 17-year old UC who was detained at the U.S. border and remanded to ORR custody at a shelter in an undisclosed location. (ECF No. 73 ¶¶1–2). She learned of her pregnancy after a medical examination on November 21, 2017. (ECF No. 73 ¶3). Her physician explained her options to her, and she elected to terminate the pregnancy. (ECF No. 73 ¶3). ORR, citing its policy, refused to allow J.R. to terminate her pregnancy, despite the fact that—as with all the named Plaintiffs—the procedure would have been paid for with private funds. (ECF No. 73 ¶14). This court granted J.R.’s request for injunctive relief on December 18, 2017, and ORR appealed that decision to the D.C. Circuit. (See ECF No. 73; Defs. Notice of Appeal, ECF No. 74). Defendants subsequently moved for dismissal of that appeal in light of new information indicating that J.R. was not in fact a minor. (See Resp. to Ct. Order at 2, ECF No. 84). J.R. was later transferred to the custody of the Department of Homeland Security, where, as ORR acknowledges, regulations permit her obtain an abortion. (See ECF No. 84 at 2). 4. Jane Moe J.M. is a 17-year old UC who was detained after entering the United States and remanded to ORR custody at a shelter in an undisclosed location. (Decl. of J.M. ¶¶1–4, ECF No. 105-2). J.M. requested an abortion, but was not permitted to obtain one, pursuant to the ORR policy.
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(Decl. of J.M. ¶5). She filed a motion seeking a temporary restraining order in this court on January 11, 2018. (Appl. for TRO, ECF No. 105). Defendants responded on January 12, 2018, reasserting the positions they maintained with respect to J.D., J.P., and J.R., and noting that ORR had identified a sponsor for J.M. (Defs. Opp. to Pls. Mot. TRO at 1, ECF No. 108; Decl. of Jonathan White ¶4, ECF No. 113-1). On January 13, ORR informed the court that it had received all necessary documents and had begun the process of releasing J.M. into the sponsor’s custody, (ECF No. 113-1 ¶¶4–5), and on January 14, ORR informed the court of J.M.’s release. (Defs. Notice of Completion of the Transfer of Ms. Jane Moe, ECF No. 114).
B. Class-Wide Preliminary Injunction Plaintiffs argue that Defendants’ policies amount to a series of obstacles and restrictions
designed to “coerce and control all UCs’ pregnancy decisions to ensure that they carry their pregnancies to term while in ORR custody,” such that pregnant UCs are: (1) “deprived of comprehensive and unbiased options counseling” in favor of “coercive counseling” designed more to influence their decision-making than to “meet their medical needs”; (2) “denied the power to decide for themselves whether to involve their parents in their pregnancy decisionmaking” by a system of disclosure and parental consent requirements that cannot be bypassed; and (3) “stripped of their right to make autonomous decisions about whether and when to become a parent” by ORR’s retention of an ultimate veto power over abortion access, which is exercised as a de facto ban on abortion. (Pls. Reply to Opp. to Mot. for Class Certification at 3, 6, ECF No. 56; Mot. for Prelim. Inj. at 4, ECF No. 5-1). Plaintiffs allege that these obstacles and restrictions violate the First and Fifth Amendments to the U.S. Constitution, and seek to preliminarily enjoin Defendants from further enforcing the terms of the above policy, pattern, or set of practices. (See Pls. Second Am. Compl. ¶¶55–63, ECF No. 61-1).
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II. MOTION FOR CLASS CERTIFICATION The court has discretion to grant or deny class certification pursuant to Fed. R. Civ. P. 23(c)(1), see McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984). Under Fed. R. Civ. P. 23(a), the proponent of the class action must establish that: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Id. The proposed class must also meet one of the three additional requirements set forth in Rule 23(b): (1) that separate actions by or against individual class members would create the risk of (a) inconsistency in adjudications concerning those members, thus establishing incompatible conduct standards for the opposing party, or (b) adjudications relating to individual class members that would be practically dispositive of the interests of other nonparty members or would substantially impair or impede their ability to safeguard their interests; (2) that the opposing party acted or refused to act on grounds that apply generally to the class, such that injunctive and declaratory relief is appropriate as to the whole class; or (3), that common questions of law or fact predominate over questions affecting individual members only, and a class action is the best method to fairly and efficiently adjudicate the controversy. Fed. R. Civ. P. 23(b)(1)–(3). The proponent of the class action bears the burden of establishing that Rule 23’s requirements are met. McCarthy, 741 F.2d at 1414 n.9. Class certification is not automatic, and sets forth more than a pleading standard—Rule 23 demands affirmative demonstration of compliance, and requires proof that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.” In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869,
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725 F.3d 244, 249 (D.C. Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)) (internal quotation marks omitted). While the court may find it “necessary . . . to probe behind the pleadings before coming to rest on the certification question,” id. at 249 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)) (internal quotation marks omitted), in determining whether to certify a class, a court may not examine whether “plaintiffs have stated a cause of action or will prevail on the merits.” In re Veneman, 309 F.3d 789, 794 (D.C. Cir. 2002) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)) (internal quotation marks omitted).
A. Numerosity Certification of a class action is permitted where the proposed class is “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Courts in this district generally recognize that “[t]here is no specific threshold that must be surpassed in order to satisfy the numerosity requirement; rather, the determination ‘requires examination of the specific facts of each case and imposes no absolute limitations.’” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (quoting Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980)). Accordingly, a plaintiff “need not provide the exact number of potential class members to satisfy the requirement, so long as there is a reasonable basis for the estimate provided.” Lightfoot v. D.C., 246 F.R.D. 326, 335 (D.D.C. 2007) (citing Bynum v. D.C., 214 F.R.D. 27, 32– 33 (D.D.C. 2003)). Nevertheless, plaintiffs must in all cases “provide evidence that joinder of all [members of the proposed class] would be impracticable.” Bynum, 214 F.R.D. at 41.
Plaintiffs argue that they have met the numerosity requirement because “Government documents suggest there are hundreds of pregnant UCs in federal government custody each year,” because documents received through discovery in another case revealed that over one
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thousand UCs in ORR custody were pregnant between August 2015 and March 2017, and because on March 6, 2017 alone, there were 38 pregnant minors in 18 programs in ORR’s national network. (ECF No. 18 at 4). Plaintiffs also maintain that joinder is “inherently impractical” because: (1) the proposed class includes unnamed and unknown members who will be pregnant in ORR custody; (2) pregnancy is an inherently temporal condition, and the UC population is transitory in nature. (ECF No. 18 at 4). Plaintiffs further note that the proposed class is geographically dispersed throughout the United States and is composed of young women with no financial independence or knowledge of their rights, making it difficult for class members to seek to enforce their rights on their own. (ECF No. 18 at 5).
The court finds that: (1) there is a reasonable basis for Plaintiffs’ estimated number of class members; and (2) that joinder is impracticable in this scenario. Plaintiffs’ estimated number of class members is sourced from ORR documents obtained during the course of this and other litigation. These documents estimate that there were 726 pregnant UCs in custody during 2014, 450 during 2015, and 682 during 2016. (ECF No. 18-5 at 2; ECF No. 19, Ex. C). Plaintiffs’ calculations—based on data provided by additional documentation—suggest that over one thousand pregnant UCs were in ORR custody between 2015 and 2017, (ECF No. 19, Ex. C; ECF No. 18-3 ¶5), and Defendants admit that there were at least 420 pregnant UCs in custody during FY 2017. (ECF No. 53 at 22). While Plaintiffs’ estimates are necessarily imprecise—in part due to limitations on the information in their possession, and in part due to the facts that pregnancy is a temporary state and residence in an ORR-funded shelter is temporary by design—they do establish a clear trend that in turn provides a reasonable basis to believe that over 100 pregnant minors are currently in ORR custody or will be in ORR custody in the foreseeable future. See Lightfoot, 246 F.R.D. at 335 (noting that “plaintiff need not
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provide the exact number of potential class members to satisfy the requirement, so long as there is a reasonable basis for the estimate provided”); see also Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.”). These numbers render joinder impractical, especially given that the proposed class members are undocumented minors who are geographically dispersed and who are not at liberty—financially or otherwise—to move or act at will inside the United States. See Kifafi, 189 F.R.D. at 176 (finding geographical dispersion relevant to impracticability of joinder). The court therefore finds that Plaintiffs have met Rule 23(a)’s numerosity requirement.2
B. Commonality A proposed class must demonstrate commonality—that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Members of the proposed class must “have suffered the same injury,” Wal-Mart Stores, Inc., 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw., Inc. v. Falcon, 457 U.S. 147, 152 (1982)) (internal quotation marks omitted), to support the existence of a common contention that “is capable of classwide resolution,” meaning “that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The commonality requirement is satisfied where the challenge is to “a uniform policy or practice that affects all class members.” DL v. District of Columbia,
2 Defendants do not directly challenge the accuracy of most of Plaintiffs’ estimates. Instead, Defendants claim that a subset of the pregnant UCs whom Plaintiffs identify—those who have actually requested an abortion—represents a more pertinent estimate of the number of proposed class members, since only these individuals can show that they were “injured” by the challenged policy or practices. Defendants’ argument is misplaced, however. The numerosity requirement is not fundamentally about whether an injury is shared among the potential members of a proposed class; that is the province of Rule 23(a)’s commonality requirement. See Wal-Mart Stores, Inc., 564 U.S. at 350 (noting that commonality requires a showing that proposed class members “have suffered the same injury”).
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713 F.3d 120, 128 (D.C. Cir. 2013); see also R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015).
Plaintiffs argue that all the proposed class members suffer the same injury—deprivation of their right to pregnancy-related care, including abortion, without interference—as a result of the same policies and practices. In particular, Plaintiffs highlight questions such as whether ORR has policies and practices that obstruct or prevent access to an abortion or abortion-related care, whether ORR can constitutionally force UCs to tell their parents or sponsors about their decision, or tell those persons themselves, and whether any such policies or practices would violate the First or Fifth Amendments. (ECF No. 18 at 6–7). Defendants contend that Plaintiffs cannot establish commonality because each class member’s factual circumstances are different. Defendants claim that these differing factual circumstances—including whether an abortion would be elective or medically necessary, whether a UC could be reunited with a parent, the availability and timing of sponsorship, and state legal requirements relating to abortion—mean that no single ruling would resolve the claims of all class members. (ECF No. 53 at 13–18).
Based on the record before it, the court concludes that Plaintiffs have satisfied the commonality requirement. Plaintiffs have offered evidence to support their contention that (a) ORR maintains a policy or engages in a set of practices regarding access to reproductive choice, pursuant to which it (b) imposes a series of restrictions that apply to all pregnant UCs in its custody and affects their ability to make certain choices regarding whether to continue or terminate their pregnancies, and (c) as part of those restrictions, maintains a parental notification requirement that cannot be bypassed and a veto power over the choice to terminate, which it exercises as a de facto ban on access to abortion. This amounts to “a uniform policy or practice that affects all class members,” DL, 713 F.3d at 128, and supports a finding that class members
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suffer a unified injury—namely that ORR’s policy or set of practices unconstitutionally violates their rights to privacy and reproductive choice. See Wal-Mart Stores, Inc., 564 U.S. at 350. Accordingly, Plaintiffs present a common question—the constitutionality of ORR’s general policy regarding reproductive options—that is “capable of classwide resolution.” Id.
Defendants’ primary argument—that factual variations affecting individual class members defeat commonality—is unavailing. While Defendants identify a number of variations in individual class members’ factual circumstances—such as whether a particular class member has requested an abortion procedure, or differences in state regulations and legal requirements concerning abortion procedures—none are fatal to the court’s commonality determination because none diminish any of the key common circumstances that form the basis of the central question in this case. The circumstances relevant to the issue of commonality are: (1) that class members are pregnant UCs; (2) that class members retain a right to privacy regarding their pregnancy-related healthcare decisions and a right to choose to terminate their pregnancy; and (3) that class members are subject to the same policies and/or practices that allegedly violate both of those rights. The combination of these shared circumstances provides a basis for the common question at the core of this litigation—whether ORR’s policies and/or practices regarding the reproductive decisions of pregnant UCs violate their constitutional rights. Based on this common legal question and any other common legal or factual sub-questions that flow from it, the court finds that the commonality requirement is satisfied.
C. Typicality A proposed class meets Rule 23’s typicality requirements when “the claims or defenses
of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Unlike commonality, which is concerned with the similarity of class members’
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injuries, the typicality requirement “focuses on whether the representatives of the class suffered a similar injury from the same course of conduct.” Bynum, 214 F.R.D. at 34. The requirement “ensures that the claims of the representative and absent class members are sufficiently similar so that the representatives’ acts are also acts on behalf of, and safeguard the interests of, the class.” Littlewolf v. Hodel, 681 F. Supp. 929, 935 (D.D.C. 1988), aff’d sub nom. Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir. 1989). Typicality is established if “[a] plaintiff’s claim . . . arises from the same event or practice or course of conduct that gives rise to a claim of another class member’s where his or her claims are based on the same legal theory.” Stewart v. Rubin, 948 F. Supp. 1077, 1088 (D.D.C. 1996), aff’d 124 F.3d 1309 (D.C. Cir. 1997) (quoting EEOC v. Printing Industry, 92 F.R.D. 51, 54 (D.D.C. 1981)). Furthermore, “factual variations between the claims of class representatives and the claims of other class members . . . do not negate typicality.” Bynum, 214 F.R.D. at 34; see also Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987) (noting that “[c]ourts have held that typicality is not destroyed merely by ‘factual variations’”); United States Trucking Emp., Inc., 75 F.R.D. 682, 688 (D.D.C. 1977) (collecting cases and noting that “where the claims or defenses raised by the named parties are typical of those of the class, differences in the factual patterns underlying the claims or defenses of individual class members will not defeat the action”).
Plaintiffs argue that J.D.’s claims are typical of the class because the deprivation of her constitutional rights is common to all members of the proposed class. In other words, they argue, J.D.—like every other pregnant UC in or soon to be in ORR custody—faced a series of obstacles that interfered with the exercise of her right to choose to end her pregnancy. Accordingly, “J.D. and the proposed class are united in their interest and injury,” as well as in their legal claims. (ECF No. 18 at 9). Defendants counter with the same arguments that they
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proffered against commonality, and claim that J.D. and the proposed class are not united in their interest because the proposed class definition would include minors who are undecided or who do not want an abortion. (ECF No. 53 at 18–19).
The court finds Defendants’ arguments unavailing for the same reasons as it did those regarding commonality. Defendants’ view of what would constitute a divergence between the claims of the Named Plaintiffs and other class members is premised on an apparent misunderstanding regarding the nature of Plaintiffs’ alleged injury. Plaintiffs claim that ORR’s policies and/or practices deprive pregnant UCs of the ability to make their own choices regarding whether to seek an abortion or disclose pregnancy-related information. If true, this deprivation would constitute an injury to all class members, regardless of which option an individual class member might ultimately choose. Thus, the fact that the Named Plaintiffs sought to terminate their pregnancies—while some class members presumably have not—does not defeat Plaintiffs’ showing on the typicality requirement.
The court concludes that J.D.’s claims and the claims of Named Plaintiffs J.R., J.P., and J.M. are typical of those of the proposed class. The record in this case establishes that the course of conduct at issue (the application of Defendants’ policies), the injury itself, and the legal theory underlying the claims are identical in all material respects to those driving the legal question that is common to the class. See Stewart, 948 F. Supp. at 1088 (noting that claims arising from “the same event or practice or course of conduct” and based on the same legal theory as other class members are considered typical). Typicality is therefore established.
D. Adequacy A proposed class meets Rule 23’s adequacy requirements where a court is persuaded that
“the representative parties will fairly and adequately protect the interests of the class.” Fed. R.
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Civ. P. 23(a)(4). The adequacy of representation is typically measured according to two criteria: (1) whether the named representative has antagonistic or conflicting interests with the members of the class; and (2) whether the representative appears capable of vigorously prosecuting class interests through qualified counsel. See Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 41 (D.D.C. 2017); Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997). The first criterion focuses on conflicts of interest, which “prevent named plaintiffs from satisfying the adequacy requirement only if they are fundamental to the suit and . . . go to the heart of the litigation.” Nat’l Veteran Legal Servs. Program, 235 F. Supp. 3d at 41 (quoting Keepseagle v. Vilsack, 102 F. Supp. 3d 205, 216 (D.D.C. 2015)). Speculative or hypothetical conflicts will not defeat the adequacy requirement. Id. at 41. The second criterion focuses on ensuring that class counsel is competent. See id. at 43.
Plaintiffs argue that the adequacy requirement is met because J.D.’s interests do not conflict with those of the class, since all class members, including J.D., seek a declaration that Defendants’ policies and practices are unconstitutional. (ECF No. 18 at 9). Plaintiffs also assert that their counsel is competent to represent the class, based on her substantial experience in reproductive freedom litigation and constitutional impact litigation more generally.3 (ECF No. 18 at 10). Defendants argue that J.D. is not an adequate representative because she obtained an abortion procedure in October 2017, and thus “her interests are moot[, she] no longer has any rights to vindicate before the court,” and therefore cannot vigorously prosecute class interests. (ECF No. 53 at 9). Defendants further argue that since this court has previously moved
3 Defendants indicated in a footnote that they also dispute whether Plaintiffs’ counsel is qualified, although they muster no specific argument in support of that contention. (ECF No. 53 at 8 n.4). The court has had ample opportunity to observe and evaluate the abilities of Plaintiffs’ counsel— who has thus far brought two successful motions for injunctive relief, and defended one decision on appeal—and finds her to be fully competent and qualified.
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expeditiously to address Named Plaintiffs’ requests for injunctive relief, it could employ the same procedure to certify a class the next time it receives a request for injunctive relief from a pregnant UC, and so the facts that pregnancy is temporary and that residence in an ORR-funded shelter is transitory do not support Plaintiffs’ adequacy arguments. (ECF No. 53 at 10–11).
The court concludes that the class representatives in this case—J.D., J.R., J.P., and J.M.—are capable of adequately protecting class interests through qualified counsel. The court rejects Defendants’ contention that J.D. (and by extension, J.R., J.P., and J.M.), are unable to vigorously prosecute class interests because their claims are now moot, whether because they left ORR custody or because they obtained an abortion prior to this ruling. A case becomes moot where “‘the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated’ in circumstances where ‘it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.’” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (quoting United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)). The court notes that J.P. still has claims arising out of Defendants’ policies or practices that involve forced disclosure of her decision to obtain an abortion, claims shared by all members of the proposed class.4 Accordingly, this case does not present a situation in which it is “impossible for the court to grant any effectual relief whatever,” since the court is able to grant relief in the form of a declaration and permanent injunction addressing ORR’s disclosure policy for the entire class, including J.P. Id. (noting that “a plaintiff’s challenge will not be moot where it seeks declaratory relief as to an ongoing policy”). J.P.’s claims are therefore not moot.
4 (See, e.g., ECF No. 52) (describing continued risks to privacy of abortion decision while formerly pregnant UC remains in ORR custody).
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Indeed, even if J.P. no longer possessed live claims, the fact that this court previously granted J.D. and J.P.’s request for injunctive relief—thereby enabling them to obtain abortions— would not moot this case. Courts have recognized an exception to the mootness doctrine where an action involves claims that “are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980); see also Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991); Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975) (“There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion.”). This case fits within the Geraghty exception for at least two reasons.
First, this case involves claims from unaccompanied minors in ORR custody, a transitory population whose membership is not fixed at any given time. Accordingly, the length of time that pregnant UCs will remain in ORR custody is uncertain and unpredictable, and while the proposed class likely includes a number of pregnant UCs who will remain in custody long enough for the court to rule on class certification, Plaintiffs have no way to ensure that any particular class representative will be one of that number. See Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (applying the “inherently transitory” exception for claims regarding nursing facility placement because “[t]he length of any individual’s stay in a nursing facility is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals”).
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Second, the right of every pregnant minor in ORR custody to seek an abortion is necessarily time limited, and with the passage of time, the risk that she will no longer be afforded a choice—along with the associated health risks—increase. As a result, class members will consistently face irreparable harm requiring the kind of emergency relief that could moot a part of their claim. Moreover, the nature of litigation means that there may be circumstances in which a court is required to rule on emergency requests for injunctive relief in a shorter timeframe than it could feasibly rule on a class certification motion, such as if a class member seeks to terminate a pregnancy that is approaching the point of viability. Rigid application of the mootness doctrine would punish Plaintiffs for seeking relief in response to urgent needs, and would effectively condition access to justice for many pregnant UCs on their willingness or ability to brave escalating risks to their health and future, as the complexity of the necessary procedure increases.
Plaintiffs name four class representatives in their Second Amended Complaint: J.D., J.P., J.R., and J.M. (ECF No. 104). Each of these minors has had claims brought on her behalf during the pendency of the motions for class certification and preliminary injunction. J.D. and J.P. each presented a clear case of irreparable harm justifying temporary relief, and accordingly received the injunctive relief they sought. J.R. and J.M.—both of whom also presented clear showings of irreparable harm—were released from ORR custody. Meanwhile, the claims of numerous potential class members remain unaddressed. The court concludes that: (1) because exceptions to the mootness doctrine apply, the fact that the Named Plaintiffs have either obtained injunctive relief or been transferred out of ORR custody does not render their claims moot, see Thorpe, 916 F. Supp. 2d at 67; and (2) the Named Plaintiffs have no conflicts of interest with the
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class and are capable of vigorously prosecuting class interests. Twelve John Does, 117 F.3d at 575–76. Accordingly, the court finds that the adequacy requirement is satisfied.
E. Rule 23(b)(2) A plaintiff seeking class certification must also satisfy one of the three Rule 23(b)
requirements. The relevant Rule 23(b) requirement in this case is 23(b)(2)—that the defendant “has acted or refused to act on grounds that apply generally to the class,” such that declaratory or injunctive relief is appropriate as to the whole class. Fed. R. Civ. P. 23(b)(2). A Rule 23(b)(2) action is specifically “intended for civil rights cases” involving allegations of class-based discrimination. In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015). Under Rule 23(b)(2), “(1) the defendant’s action or refusal to act must be ‘generally applicable to the class’, and (2) plaintiff must seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Steele v. United States, 159 F. Supp. 3d 73, 81 (D.D.C. 2016), on reconsideration in part, 200 F. Supp. 3d 217 (D.D.C. 2016) (quoting Disability Rights Council of Greater Wash., 239 F.R.D. 9, 28 (2006)); see also Walsh v. Ford Motor Co., 807 F.2d 1000, 1003 n.7 (D.C. Cir. 1986). Certification under Rule 23(b)(2) is appropriate “when a single injunction or declaratory judgment would provide relief to each member of the class,” and not where each member would have grounds to seek a different injunction or declaratory judgment from the same defendant. Wal-Mart Stores, Inc., 564 U.S. at 360–61.
Plaintiffs argue that the requirements of Rule 23(b)(2) are met because (1) the proposed class seeks uniform injunctive relief to prevent Defendants from violating UCs’ right to make reproductive decisions, and (2) a single injunction would afford this relief to all class members, meaning that Defendants’ actions or refusals to act are generally applicable to the entire class. Plaintiffs further argue that the temporal and transitory nature of pregnancy and residence in an
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ORR shelter support class certification as a means to obtain a single injunction that would circumvent mootness problems, and that a class action would promote judicial economy. (ECF No. 18 at 11–12). Defendants respond with the same arguments they advanced regarding commonality and typicality—that because of factual differences in class members’ individual circumstances, Defendants’ actions or omissions do not apply generally to the class. (ECF No. 53 at 23–24). Defendants further argue that these factual variations make it impossible to issue a single injunction that would address all class members’ claims. (ECF No. 53 at 24–25).
The central issue in this case is the impact of ORR policies and/or practices on pregnant UCs’ ability to freely make reproductive choices. ORR documents reveal that its policies apply to all pregnant UCs in its custody—even those whose pregnancy is the result of rape. (See ECF No. 92-1). Furthermore, because pregnant UCs cannot freely choose whether to terminate and with whom to share information regarding their reproductive decisions, the injury—the inability to make a choice—is shared by the entire proposed class, regardless of whether individual members might choose different courses of action. Accordingly, in this case, “the defendant’s action or refusal to act [is] ‘generally applicable to the class,’” Steele v. United States, 159 F. Supp. 3d at 81, such that “a single injunction or declaratory judgment would provide relief to each member of the class,” notwithstanding the fact that class members may make different choices. Wal-Mart Stores, Inc., 564 U.S. at 360–61. Therefore, the court finds that the proposed class meets Rule 23(b)(2)’s requirements.
III. MOTION FOR PRELIMINARY INJUNCTION A preliminary injunction is an “extraordinary remedy” that is “never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). A plaintiff seeking a preliminary injunction must show that: (1)
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she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest. Id. at 20; John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). The D.C. Circuit has traditionally evaluated claims for injunctive relief on a sliding scale, whereby “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). It has been suggested, however, that a movant’s showing of likelihood of success on the merits “is an independent, free-standing requirement for a preliminary injunction.” Id. at 393 (quoting Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)).
The court finds that Plaintiffs have carried their burden of showing that preliminary injunctive relief is warranted here. Indeed, there is essentially no substantive difference between the class issues currently before this court and the issues underpinning the prior requests for temporary relief on which this court—and in one case, the D.C. Circuit—have already ruled. See Baker DC v. Nat’l Labor Relations Bd., 102 F. Supp. 3d 194, 198 (D.D.C. 2015) (“The court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction”) (quoting Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001)) (internal quotation marks omitted). Nevertheless, for the sake of completeness, the court will briefly discuss each factor here.
A. Likelihood of Success on the Merits Plaintiffs’ have made a strong showing of likelihood of success on the merits. The
Supreme Court clarified in 1992—and again in 2016—that laws or regulations restricting abortion are scrutinized under the “undue burden” standard. Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992); see also Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2299
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(2016). “An undue burden exists, and therefore a provision of law is invalid, if its purpose or
effect is to place a substantial obstacle in the path of a woman seeking an abortion before the
fetus attains viability.” Casey, 505 U.S. at 878; see also Whole Woman’s Health, 136 S.Ct. at
2299, 2309. The Court in Casey further explained that:
A statute with this purpose is invalid because the means chosen by the [government] to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid [government] interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends. Casey, 505 U.S. at 877. Accordingly, while “[t]he woman’s liberty is not so unlimited . . . that
from the outset the [government] cannot show its concern for the life of the unborn,” it is beyond
dispute that the Constitution responds to “the urgent claims of the woman to retain the ultimate
control over her destiny and her body” with at least one unequivocal constitutional command:
that the government “may not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability.” Casey, 505 U.S. at 869, 879. This basic proscription remains the law of the land and controls the outcome in this case.5
The record before the court uniformly supports the conclusion that ORR policies and
practices violate the standard and principles announced in Casey and reaffirmed in Whole
Woman’s Health. The record reveals that ORR effectively retains an absolute veto over the
reproductive decision of any young woman in its custody, a veto that is exercised routinely to bar
5 Plaintiffs’ Fifth Amendment right to decide whether to continue or terminate their pregnancies is not diminished by their status as undocumented immigrants. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Jean v. Nelson, 472 U.S. 846, 875 (1985) (noting that the Due Process Clause applies to all “persons” within the territorial jurisdiction of the United States, no matter their immigration status). The Government does not contend otherwise. Garza v. Hargan, 874 F.3d 735, 737 (D.C. Cir. 2017) (Millett, J., Concurring).
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UCs from obtaining abortions, despite the fact that no public funds are expended to procure the procedures and notwithstanding the UC’s own wishes or intentions. In other words, ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices, including the decision of whether to continue or terminate her pregnancy. Accordingly, the court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from “making the ultimate decision” on whether or not to continue their pregnancy prior to viability—a quintessential undue burden. Casey, 505 U.S. at 879.
ORR’s policy vests the power to decide the future of a UC’s pregnancy in one man: Director Lloyd. (ECF No. 5-4). The policy provides no mechanism to ensure compliance with established constitutional dictates, or to afford a UC the opportunity to bypass the Director and effectuate her constitutional rights. Apart from his personal opinion that abortion is not in any pregnant UC’s “best interest,” the ORR policy does not require Director Lloyd to provide any justification or legal authority to unilaterally deny UCs their right to make their own reproductive choices. Moreover, the ORR decision document reveals that the Director’s ultimate decision is substantially controlled by—if not entirely based on—his ideological opposition to abortion, and even a UC who becomes pregnant as a result of rape, with all its attendant physical and psychological harms, will not be allowed to decide whether she wishes to continue that pregnancy. (See ECF No. 92-1 at 7–8). In short, ORR’s policy is premised on the notion that the Director is entitled to exercise complete control over female UCs’ reproductive decisions by virtue of the fact that they are undocumented minors in ORR custody. The adoption and implementation of such a policy is itself sufficient to raise constitutional flags. See Casey, 505 U.S. at 879 (noting that “[r]egardless of whether exceptions are made for particular
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circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”).6 But Defendants’ actions extend even further.
ORR implements its policy via a ban on “any action that facilitates an abortion,” (ECF No. 5-4 at 2), which includes, inter alia, any action relating to scheduling appointments, arranging transportation, making the UC available to be transported, pursuing a judicial bypass, “draft[ing] approval documents,” “review[ing] information relevant to her health and the procedure,” and even “maintain[ing] custody of her (while ensuring her health remains stable) during and after the abortion procedure.” (Defs. Mem. in Opp. to Pls. TRO & Mot. Prelim. Inj. at 12–13, ECF No. 10; ECF No. 5-5 at 5). Indeed, ORR’s interpretation of “facilitation” appears to be so capacious that it prevents not only government officials or employees from assisting pregnant UCs, but also applies to private contractors and persons who are unaffiliated with the government. Defendants even suggest that acting to ensure that a UC’s health remains stable following an abortion constitutes “facilitation,” a position which would presumably allow them to withhold medical treatment from a UC who suffered post-procedure complications.7 (See ECF No. 10 at 12–13). Defendants’ position on what constitutes “facilitation” appears to be divorced from any commonsense understanding of that term and at odds with reality. As Judge
6 Defendants suggest that the only relevant policy in operation at ORR is one requiring Director approval for “major” surgical procedures, a category which they contend happens to include abortions, but which also applies to other procedures. However, Defendants do not deny that the policy acts to prevent a UC from obtaining an abortion, and they present no evidence that ORR’s approach to abortion is even remotely similar to its approach to other medical procedures, including childbirth. (See ECF No. 53 at 25). 7 While such a scenario is hypothetical, it is not necessarily unrealistic. J.D. obtained an abortion pursuant to this court’s Order in October 2017, and remained in ORR custody for months thereafter. J.P. obtained an abortion pursuant to this court’s Order in December 2017, and remains in ORR custody at the time of this writing. Thus, had a complication arisen following either of their procedures, under Defendants’ policy, J.D or J.P could have found themselves without medical assistance.
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Millett noted, “facilitation” is about promoting or making an action or process easier. Garza v. Hargan, 874 F.3d 735, 740 (D.C. Cir. 2017) (Millett, J., Concurring). Here, the government is not required to promote, transport, pay for, or otherwise further a UC’s decision to have an abortion. But it cannot “interfere or make things harder” by adopting a policy and practice to “categorically blockade exercise of [UCs’] constitutional right” to choose. Id. at 737.
Defendants have consistently maintained that the ORR policy does not impose an undue burden because pregnant UCs have the option of either: (1) voluntarily returning to their home countries, thereby removing themselves from ORR custody; or (2) being placed with a sponsor. (ECF No. 10 at 2, 11–12). This court does not find that either of these “options” mitigates the undue burden that ORR’s policy imposes on the young women in its custody. In light of the court’s previous orders and the D.C. Circuit’s extensive examination of Defendants’ contentions in its consideration of J.D.’s case, see Garza v. Hargan, 874 F.3d at 740, this court pretermits lengthy discussion of these arguments, but offers two points in response. First, Defendants’ voluntary departure argument conditions the exercise of UCs’ constitutional rights on their willingness to relinquish any claim that may entitle them to remain in the United States, and to return to what is in many instances—including the cases of J.D. and J.P.—a country from which they fled due to alleged abuse.8 Such a proposal renders the exercise of constitutional rights a Hobson’s choice, wherein one set of rights must be waived in order to effectuate another. That proposal in and of itself likely constitutes a substantial obstacle to a UC’s exercise of her rights—especially when voluntary departure could mean exposing herself to the risk of further abuse. This court will not sanction any policy or practice that forces vulnerable young women to
8 The court also notes that there is no guarantee that a minor’s country of origin will permit abortion, and in fact the government conceded that abortion was illegal in J.D.’s home country. (ECF No. 30 ¶8).
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make such a choice. Second, Defendants’ characterization of sponsorship as an “option” for pregnant UCs ignores at least two key aspects of this court’s previous findings of fact: (1) that locating a sponsor is typically a lengthy, complex process involving multiple stages, over which the UC has no control; and (2) that ORR makes the final decision of whether to approve a particular sponsor. (See ECF No. 30 ¶¶8–9). For these reasons, the sponsorship option does not allow the UC any control over her reproductive decisions, and therefore does not cure the constitutional infirmity inherent in the ORR policy. In sum, Plaintiffs have demonstrated that ORR’s policies and practices likely constitute an undue burden on the right of UCs in ORR custody to make their own reproductive choices. See Casey, 505 U.S. at 877, 879; Whole Woman’s Health, 136 S.Ct. at 2299, 2309.
B. Remaining Factors for Preliminary Injunctive Relief. The court finds that the three remaining requirements for preliminary injunctive relief are
met in this case. First, the irreparable harm confronting each member of the class is the same as for each Named Plaintiff throughout these proceedings: at a minimum, increased health risks, and perhaps the permanent inability to obtain the abortion to which they are legally entitled. Accordingly, the court finds that Plaintiffs have demonstrated irreparable harm sufficient to justify issuance of a preliminary injunction. Second, Defendants have not shown they have any legitimate interest that will be harmed by the issuance of a preliminary injunction. Accordingly, the balance of equities tips in Plaintiffs’ favor. Finally, the public interest weighs in favor of a preliminary injunction because: (1) this case involves the protection of constitutional rights, and (2) “the public has an interest in the government maintaining procedures that comply with constitutional requirements,” Ass’n of Cmty. Organizations for Reform Now (ACORN) v. Fed.
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Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 28 of 28 Emergency Mgmt. Agency (FEMA), 463 F. Supp. 2d 26, 36 (D.D.C. 2006) (citing O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992)).
IV. CONCLUSION While ORR and its Director are certainly entitled to maintain an interest in fetal life, and even to prefer that pregnant UCs in ORR custody choose one course over the other, ORR may not create or implement any policy that strips UCs of their right to make their own reproductive choices. See Casey, 505 U.S. at 879. Accordingly, Plaintiffs’ motion for a class-wide preliminary injunction is hereby GRANTED.
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 Case 1:17-cv-02122-TSC Document 128 Filed 04/03/18 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

and JANE POE;

)

)

Plaintiffs,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

_________________________________________ )

No. 17-cv-02122-TSC

DEFENDANTS’ MOTION FOR A STAY OF THE PRELIMINARY INJUNCTION

The Defendants, Alex M. Azar II, Steven Wagner, and Scott Lloyd, hereby request a stay

pending appeal of the Court’s March 30, 2018 Order granting Plaintiffs’ Motion for a Preliminary

Injunction (“PI”). See Order, ECF No. 127, at 1-2. The Order certifies a class defined as “all

pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody

of the federal government,” and provides that Defendants are:

(1) Enjoined from interfering with or obstructing any class member’s access to: (1) a judicial bypass, (2) medical appointments related to pregnancy dating, (3) non-directive options counseling, (4) abortion counseling, (5) an abortion, or (6) other pregnancy-related care;
(2) Enjoined from forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion;
(3) Enjoined from retaliating against any class member based on her decision to have an abortion;
(4) Enjoined from retaliating or threatening to retaliate against contractors that operate the shelters where class members currently reside for any actions that those contractors or shelters have taken or may take in facilitating class members’ ability to access pregnancy and abortion-related medical care and/or an abortion.

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Id. Defendants respectfully request that the Court grant a stay pending appeal of paragraphs 1 and 2 because they enjoin the Office of Refugee Resettlement (“ORR”) from carrying out its statutory and custodial responsibilities by restricting its ability to involve the minor’s parents and notify authorized medical personnel as it deems necessary, and it requires ORR to facilitate abortions of unaccompanied alien children (“UACs”) in its care. Id.
The Court should grant a stay pending appeal because class certification is unwarranted, and the injunction unduly interferes with ORR’s statutory obligations and is overbroad. Because the four named plaintiffs no longer have a live stake in the claims asserted, they cannot adequately represent a putative class of pregnant UACs in ORR custody. And the putative class is also fundamentally flawed given that not all pregnant UACs necessarily agree with the controversial pro-choice claims being asserted on their purported behalf. ORR’s interests would be irreparably harmed absent a stay pending appeal because the injunction would significantly restrict its ability to provide appropriate medical attention to UACs in its care, involve the parents as necessary, and properly vet future sponsors, even when such communication is unopposed by the minor. The balance of hardship also tips in ORR’s favor because the injunction requiring facilitation of abortions applies even in cases where sponsorship is imminent or voluntary departure would not be to an abusive environment, and therefore would not constitute an undue burden.
Defendants do not seek a stay of the March 30, 2018 Order regarding paragraphs 3 and 4 that govern non-retaliation against purported class members and third-party contractors, notwithstanding the fact that Plaintiffs have made no showing of retaliation against either a putative class member or a cooperative shelter.
We respectfully request a prompt ruling from this Court. Given the immediate irreparable harm caused by the Order’s interference with ORR’s ability to carry out its statutory and custodial
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responsibilities, if a stay has not been granted by Monday, April 9, 2018, we intend to seek a stay from the Court of Appeals.
ARGUMENT The Court should grant a stay pending appeal. For a stay pending appeal, the Court weighs the same four factors it considers when determining whether to grant an injunction: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985) (citing WMATA v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977)). I. The Court should stay the PI pending appeal because class certification was unwarranted. The Court should grant a stay regarding paragraphs 1 and 2 of the PI because class certification was unsupported. None of the named plaintiffs are members of the class comprised of“all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government,” Order, ECF No. 127, at 1, and so they cannot adequately represent the class. Even if the four named plaintiffs could fall under the “inherently transitory” doctrine to avoid mootness as a matter of law, which they do not, see Memorandum ECF No. 126, at 18-19, their lack of a live stake in the case remains highly problematic in satisfying the adequacy requirement and as a matter of due process for the other class members. It is well-settled that “[a] litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court.” Sosna v. Iowa, 419 U.S. 393, 403 (1975) (noting that the named representative’s claim was valid through class certification).
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Here, on March 30, 2018 when this Court certified a class comprised of “all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government,” Order, ECF No. 127, at 1, none of the four named plaintiffs were members of their class or otherwise had a live stake in the litigation, having all undergone the abortion procedure they sought, and all identified class representatives were out of ORR custody. Further, no additional class representatives have opted in or been substituted who continue to have an actual stake in the ongoing litigation when the class was certified.
To the extent this Court certified a class by using Jane Poe to meet the Rule 23 adequacy requirement, Jane Poe never agreed to serve as a class representative, and appears solely in her individual capacity. See Memorandum, ECF No. 126, at 17 (noting “that J.P. still has claims arising out of Defendants’ polices or practices that involve forced disclosure of her decision to obtain an abortion, claims shared by all members of the proposed class”); see also Plaintiffs’ Renewed Motion to for Class Certification, ECF No. 121, at 10 (identifying only JD, JR, and JM as class representatives); Plaintiffs’ Third Amended Complaint, ECF No. 118-1, at 1-2 (“Plaintiffs J.D. and Jane Roe, on behalf of themselves and a class of similarly situated pregnant unaccompanied immigrant minors in the legal custody of the federal government, and Plaintiffs Jane Poe and Jane Moe, on behalf of themselves”).
The sponsorship placements and abortions obtained by the other named plaintiffs reinforce why they cannot establish class certification. This Court rejected the government’s numerosity objections by considering the class of all pregnant UACs in ORR custody (rather than just those seeking abortions), but certifying such a class creates fatal adequacy, typicality, and commonality problems under Rule 23, because the broad class of all pregnant UACs likely holds significantly divergent views on the controversial pro-choice claims being asserted on their purported behalf,
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including many who do not want to obtain an abortion at all and who may oppose abortions and support ORR’s challenged conduct here. See Sualog Decl. ¶ 13 (“Most UACs in ORR care and custody do not request abortions”). As discussed below, the Court’s reasoning on the merits concerning parental notification, sponsorship, and voluntary departure do not apply equally to the whole class, which is highly problematic for certification. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (a common question of law and fact is a question “of such a nature that it is capable of class wide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”).
Again, even accepting an overly-broad definition of the class to include all pregnant minors, not a single one has stepped forward to serve as a representative for the Court’s defined class to substitute in place of the mooted named plaintiffs, which underscores its overbreadth and the lack of a proper class representative. The named plaintiffs’ own divergent experiences in the UAC program demand the denial of their motion for class certification. Consequently, Rule 23 precludes class certification, and the injunction as to this putative class should be stayed accordingly.
*** II. The Court should stay its injunction prohibiting ORR from revealing pregnancy-
related information to anyone, including authorized medical personnel. This Court’s Memorandum Opinion and Order does not discuss the legal basis for paragraph 2 of the Court’s Order, which enjoins ORR “from forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion[.]” Order, ECF No. 127, at 2. No such legal basis exists. This Court seemed to suggest that such notification itself violates Plaintiffs’ alleged Fifth Amendments rights concerning abortion. But that was not Plaintiffs’
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claim. Rather, Plaintiffs’ claim was that ORR’s parental notification policy violates their right against compelled speech and disclosure of private information, and that claim is unfounded. See Third Amended Complaint ECF No. 118-1, at 17-18; but see Nat’l Assoc. of Manufacturers v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (a “compelled-speech violation’ occur[s] when ‘the complaining speaker’s own message was affected by the speech it was forced to accommodate’”). ORR does not require pregnant UACs to say anything to anyone, including their parents. So there is no compelled speech. Snyder v. Phelps, 562 U.S. 443, 458 (2011) (The First Amendment contemplates that listeners may be exposed to messages that “in someone’s eyes are misguided.”).
Not only is there no legal basis for enjoining ORR from informing anyone about the child’s abortion decision,1 the Court’s Order would significantly impair ORR’s ability to provide pregnant UACs with appropriate medical care while they remain in ORR custody. Paragraph 2 may prevent Defendants from sharing a minor’s abortion medical records with her existing primary care physician or her obstetrician-gynecologist, which are provided to her through ORR. Paragraph 2 prevents Defendants from sharing a minor’s pregnancy with emergency care providers even if she were incapacitated, and therefore unable to give consent, further undercutting Defendants’ ability to provide appropriate medical attention for pregnant UACs in its care. Indeed, paragraph 2 could even extend beyond medical personnel, and preclude informing a driver who is transporting the minor to an abortion facility.
1 Defendants read the second clause of paragraph 2—enjoining Defendants “from revealing those decisions to anyone themselves”—to only apply to a minor’s decision to have an abortion and the minor does not consent to revealing that decision, given the impracticality that would arise should the Order require a minor to personally inform a medical professional every time the issue may arise even after she has given consent. We also do not read the Court’s order to preclude HHS from sharing the fact of a minor’s pregnancy in any circumstances. Id. (enjoining HHS only from “revealing [abortion] decisions”).
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Paragraph 2 also undercuts ORR’s ability to act in the best interests of the child by enjoining ORR from notifying a minor’s parents, regardless of the particular circumstances or the minor’s age. See 6 U.S.C. § 279(b)(1)(A). This is true even if the minor were as young as twelve or thirteen years of age, when she will most need a parent’s guidance and support. Indeed, a broad reading of paragraph 2, as we observe in footnote 2, would enjoin ORR from telling a minor’s parents, even if the minor requested ORR to do so. To be sure, ORR and its grantees do not disclose to UAC’s parents a UAC’s health situation if doing so would be inconsistent with state law, or if doing so would “endanger the UAC’s health and well-being.” Sualog Decl. ¶ 10. Rather, ORR’s parental notification policy exists “to make parents aware of their child’s status, to help lead to the best decisions for the child’s health, and to advance the child’s best interests.” Sualog Decl. ¶ 7. This aim is undermined by a blanket restriction on parental notification in every circumstance.
Finally, Paragraph 2 impairs Defendants’ ability to vet potential sponsors to place UACs in a safe and stable environment. Given the strong sentiments evoked by the issue of abortion, Defendants might need to inquire as to a potential sponsor’s views on the issue to ensure a potential sponsor would not retaliate against the minor. Indeed, “[i]f ORR concludes a UAC’s pregnancy or abortion would lead to the UAC’s abuse by a UAC’s potential sponsor (including a parental sponsor), then ORR does not release the UAC to that sponsor.” Sualog Decl. ¶ 10. The same reasoning that led this Court to issue an injunction barring retaliation against the minor calls on it to stay this aspect of the Court’s order barring ORR from communicating to protect against retaliation. Allowing Defendants to disclose this information when necessary and appropriate would enable them to better gauge the suitability of potential sponsors for the minor.
For all of these reasons, the Court should stay paragraph 2 of the PI pending appeal.
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Case 1:17-cv-02122-TSC Document 128 Filed 04/03/18 Page 8 of 11
*** III. The Court should stay its order requiring ORR to provide abortion access because it
requires government facilitation of the procedure. Paragraph 1 of this Court’s Order enjoins Defendants from “interfering with or obstructing any class member’s access to . . . an abortion[.]” Order, ECF No. 127, at 1. This is overbroad to the extent it requires ORR to facilitate a UAC’s ability to obtain an abortion. Under the framework of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the government may pursue its interest in protecting life before fetal viability, provided it does not do so in a manner that imposes an undue burden on the mother. After viability, the government may regulate or even proscribe abortion. Id. at 879. ORR does not impose an undue burden under Casey whenever a UAC in ORR custody requests an abortion and ORR declines to facilitate it. Holding that ORR’s policies violate the Fifth Amendment—and instead that the Constitution in every factual circumstance requires the government to facilitate an elective abortion for all unaccompanied minors that enter the United States—is incorrect. Memorandum, ECF No. 126, at 22-27. Indeed, Judge Millett, for the en banc court in Garza, held that the ability to find a sponsor in a timely manner played an important role in determining whether there was a right to court ordered facilitation of the abortion by the government. See Garza v. Hargan, 874 F.3d 735, 73839 (D.C. Cir. 2017) (en banc) (“centerpiece of the panel order” is the expeditious search for a sponsor and accepting that it is possible some “type[s] of short-term burden . . . could plausibly pass muster under Supreme Court precedent”); see id. at 739 (identifying five factual issues relating to promptly finding a sponsor that may be relevant to the right to court-ordered relief). In weighing these factors, what most troubled the en banc court in Ms. Doe’s case was that the government did not allege that “there was any prospect of finding a sponsor at all,” or that “a non-
8

Case 1:17-cv-02122-TSC Document 128 Filed 04/03/18 Page 9 of 11
family member could be identified, vetted, and take custody of J.D. within [the requested] eleven days.” Id.
The Garza Court did not hold, however, that ORR’s sponsorship process per se constitutes an undue burden because it “is typically a lengthy, complex process involving multiple stages, over which the UC has no control[.]” Memorandum, ECF No. 126, at 27. Rather, the Garza Court acknowledged that the UAC often “has precious little control over the sponsorship process[,]” while allowing for the possibility that the sponsorship process, if favorable, could resolve the constitutional question. 874 F.3d at 739.
The case of Jane Moe makes this point. Jane Moe arrived in ORR custody on December 22, 2017, and shortly thereafter identified a sponsor. ECF No. 108-1, at 1-2. On Thursday, January 11, 2018, she filed a motion for a TRO, demanding immediate access to abortion services. Motion, ECF No. 105. On Sunday, January 14, 2018, before the Court could even rule on the motion, Jane Moe was released to a sponsor. Notice, ECF No. 114, at 1. This is precisely the “type of shortterm burden that could plausibly pass muster under Supreme Court precedent to bar an abortion” found by the Garza Court. 874 F.3d at 739.
A similar objection applies to the Court’s analysis of the option of voluntary departure. The Garza Court suggested that voluntary departure was overly burdensome in the case of Jane Doe “given both the life-threatening abuse that J.D. claims to face upon return, and her potential claims of legal entitlement to remain in the United States.” Id. at 740. But not all UACs are in those circumstances, and some could voluntarily depart without any burden at all and return to countries where they face neither abuse nor persecution.2
2 Defendants again concede that for purposes of this motion for a stay of the PI, they are bound by the D.C. Circuit’s October 24, 2017 en banc decision insofar as the law and the facts contained herein are indistinguishable. But to preserve the issue, Defendants reiterate their position that the government’s refusal to facilitate an elective abortion does not impose an undue burden in
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Case 1:17-cv-02122-TSC Document 128 Filed 04/03/18 Page 10 of 11
*** IV. The balance of the hardships and the public interest weighs in favor a stay pending
appeal. ORR has a legitimate and significant interest in ensuring that it can fulfill its statutory custodial obligations. That interest would be irreparably harmed if ORR is unable to communicate openly with medical personnel and the parents of UACs who come under its care, which would significantly restrict its ability to: (1) provide appropriate medical attention to the minor; (2) involve the minor’s parents as it deems necessary; and (3) properly vet potential future sponsors for safe and stable placement. ORR’s interest would also be irreparably harmed if it is required to affirmatively facilitate an abortion. Indeed, that interest would be completely extinguished in every instance the government is required to facilitate an abortion. The public interest also weighs against incentivizing illegal immigration by compelling the federal government to facilitate an unaccompanied alien child’s request for an elective abortion. Cf. Landon v. Plsencia, 459 U.S. 21, 34 (1982) (“The government’s interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.”).
violation of the Fifth Amendment. Under Planned Parenthood v. Casey, the government is entitled to pursue its legitimate interests, provided that it does not impose an “undue burden” on a woman’s choice to terminate her pregnancy before viability. 505 U.S. 833, 870 (1992). Plaintiffs cannot show that an alleged ORR policy of protecting fetal life necessarily imposes such an undue burden in every application, or even a large fraction of applications. At a minimum, an alien who illegally crosses the border and is detained retains the power to withdraw her application for admission and request voluntary departure to return to her home country, cf. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (“An alien in Parra’s position can withdraw his defense of the removal proceeding and return home to his native land, thus ending his detention immediately. He has the keys in his pocket.”), where she would be in the same circumstances she would have been in had she never entered the United States.
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Case 1:17-cv-02122-TSC Document 128 Filed 04/03/18 Page 11 of 11

***

CONCLUSION

For the foregoing reasons, the Court should grant a stay pending appeal of paragraphs 1 and 2 of

its March 30, 2018 Order because it enjoins ORR to facilitate abortions of UACs in its care, and

prevents ORR from carrying out its custodial responsibilities by notifying parents and medical

personnel as it deems necessary. Given the immediate irreparable harm caused by the Order’s

interference with ORR’s ability to carry out its statutory and custodial responsibilities, if a stay has

not been granted by Monday, April 9, 2018, we intend to seek a stay from the Court of Appeals.

DATED: April 3, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

AUGUST E. FLENTJE Special Counsel

ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

Attorneys for Defendants

BY: /s/ W. Daniel Shieh W. DANIEL SHIEH SABATINO F. LEO MICHAEL HEYSE Trial Attorneys Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-9802 Fax: (202) 305-1890 daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov michael.heyse@usdoj.gov

11

 
 Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated, et al., )

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

)

No. 17-cv-02122-TSC

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR A STAY OF THE PRELIMINARY INJUNCTION
Defendants’ motion for a stay of the preliminary injunction (ECF No. 128) amounts to nothing more than a rehash of their failed arguments that are unsupported by the law and the evidence. Defendants do not remotely come close to meeting the standard for a stay pending appeal: Defendants are not likely to succeed on the merits of their appeal given that this Court’s Order is based on well-established precedent, and, as this Court properly found, class members will suffer irreparable harm absent a preliminary injunction, while Defendants will suffer no harm from the preliminary injunction, and a preliminary injunction serves the public interest. Therefore, Defendants’ motion should be denied.
ARGUMENT I. Defendants Are Not Likely To Succeed on the Merits of Their Appeal.
A. Defendants’ Class Certification Arguments Are Irrelevant To Their Request for a Stay of the Preliminary Injunction.

Defendants do not indicate that they are planning to appeal this Court’s Order as it

pertains to class certification for good reason: A ruling on class certification is typically not

subject to interlocutory appeal. See, e.g., In re Lorazepam & Clorazepate Antitrust Litig., 289

1

Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 2 of 7
F.3d 98, 104-06 (D.C. Cir. 2002) (outlining three circumstances where Rule 23(f) review is appropriate, none of which is remotely present here). Accordingly, Defendants are not likely to succeed on the merits of their appeal of the preliminary injunction due to any alleged deficiencies with this Court’s class certification ruling. For this reason alone, this Court need not entertain Defendants’ arguments relating to class certification. But even if this Court did, Defendants cannot show they will succeed on the merits of these arguments on appeal. Indeed, this Court’s Order rejected Defendants’ arguments based on well-established precedent, and Plaintiffs have also provided extensive briefing relying on the same. For example, this Court properly rejected Defendants’ argument that the class representatives are inadequate, Defs.’ Br. at 3, based on, inter alia, the well-established “inherently transitory” exception to mootness.1 Mem. Op. and Order (ECF No. 126) at 18-19 (citing, e.g., United States Parole Commission v. Geraghty, 445 U.S. 338, 339 (1980)). This Court also relied on binding Court of Appeals and Supreme Court precedent in rejecting Defendants’ arguments, Defs.’ Br. at 4-5, that the class is not typical or common because of variations in the minors’ circumstances. Mem. Op. at 11-15 (citing, e.g., DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013), and Bynum v. D.C., 214 F.R.D. 27, 34 (D.D.C. 2003)). Accordingly, for all of these reasons, and for the reasons stated in Plaintiffs’ prior briefing, Defendants are unlikely to succeed on the merits of their appeal of the preliminary injunction by attacking this Court’s Order relating to class certification.
B. Defendants Are Not Likely To Succeed On Appeal of the Court’s Decision Prohibiting Defendants From Revealing a Minor’s Abortion Decision.
1 While Defendants are correct that J.P. was not proposed as a class representative, and Plaintiffs moved to amend their Complaint to remove J.M. as a class representative (and the Court’s Order should be amended to reflect those facts), the other class representatives’ claims fit squarely within the inherently transitory exception to mootness. Moreover, none of the named Plaintiffs’ claims for prospective relief related to their informational privacy are moot given that Defendants have repeatedly claimed carte blanche to tell others about minors’ abortion decisions.
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Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 3 of 7
Defendants are unlikely to succeed in reversing this Court’s order preliminarily enjoining them “from forcing any class member[s] to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves.”2 Contrary to Defendants’ assertion, Defs.’ Br. at 5-6, Plaintiffs’ claims are not limited to an argument that Defendants violate the First Amendment prohibition on compelled speech by forcing a minor discuss her pregnancy with a crisis pregnancy center. Rather, Plaintiffs also claim that Defendants violate minors’ Fifth Amendment right to keep their abortion decision confidential from their parents (ECF No. 5-2 at 11-12), and that Defendants violated Plaintiffs’ constitutional right to informational privacy by telling parents, sponsors, crisis pregnancy centers, and others, about the minors’ abortion decision (ECF No. 104 at 16, Third Claim For Relief). Plaintiffs’ right to keep confidential their pregnancy – as well as their abortion decision – is also protected by their right to informational privacy, and therefore Defendants should not be permitted to reveal minors’ pregnancy either, absent the minors’ consent. Defs.’ Br. at 6 n.1. Plaintiffs’ claims, based on well-settled case law, are further discussed in Plaintiffs’ prior briefs.
Furthermore, Defendants’ arguments about the preliminary injunction’s so-called impairment of their custodial rights are unavailing as a matter of common sense, and do not establish that they are likely to succeed on the merits of their appeal. For example, Defendants
2 In Plaintiffs’ view, the order prohibiting Defendants “from forcing any class member[s] to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion” (emphasis added), was not intended to prohibit communications to third parties with the minor’s permission, and Plaintiffs support an amendment of the Court’s Order that would make clear that Defendants may tell third parties about a minor’s pregnancy or abortion decision with the minor’s consent, as long as that consent is truly voluntary. Furthermore, as Plaintiffs have previously stated, ECF No. 52 at 6 n.5, Plaintiffs are amenable to an amendment to the preliminary injunction to include a limited exception permitting Defendants to reveal that a minor had an abortion in the event of a medical emergency in which the minor was unable to communicate this information to the medical provider herself.
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Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 4 of 7
argument that it must reveal a minor’s abortion decision to a driver who will take her to a health care provider, Defs.’ Br. at 6, is absurd. A driver simply needs to know the address of the health care facility, and should never be told the purpose of the health care visit. Moreover, if a minor’s abortion is relevant to her health history, she can convey that information to her health care providers. See ECF No. 52; ECF No. 96 at 5. And if Defendants want to ensure that a sponsor will not retaliate against a minor because she has had an abortion, the solution is simple: Defendants should not tell the sponsor that the minor has had an abortion. Id.
Lastly, Defendants’ new claim that they do not tell a minor’s parents or sponsor of her abortion decision if it is contrary to law or would cause harm to the minor, Defs.’ Br. at 7, flies in the face of the evidence, as illustrated by Jane Poe’s situation. Indeed, Defendants forced Ms. Poe to tell her parents and her sponsor of her abortion decision, who then threatened to beat her if she had an abortion. ECF No. 96 at 4. Despite that threat of harm, Defendants continued to seek permission from this Court to tell Ms. Poe’s sponsor of her abortion decision knowing that it would cause Ms. Poe harm. Id. And, on top of it all, Ms. Poe resided in a state where minors can consent to abortion on their own, without parental involvement.
C. Defendants Are Unlikely To Succeed on Appeal of the Court’s Order Blocking them From Obstructing or Interfering With Abortion Access.
Defendants’ arguments that they are entitled to hold young women hostage to prevent them from accessing abortion is, as this Court recognized, flatly wrong under well-established and recent Supreme Court precedent. See Mem. Op. at 23 (citing, e.g., Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), and Planned Parenthood v. Casey, 505 U.S. 833 (1992)). Similarly, this Court relied on the same Supreme Court case law, and clear evidence, in rejecting Defendants’ argument, Defs.’ Br. at 9, that they are not imposing an undue burden on UC’s right to abortion because the minor could be reunited with a sponsor or voluntary depart. Mem. Op. at
4

Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 5 of 7

26-27. This Court found, based on undisputed evidence, that the minor controls neither the approval nor the timing of a sponsorship. Id. Moreover, as to voluntary departure, minors should not have to choose between exercising their constitutional right to abortion and returning to their home countries, where they might face abuse or other dangers that impelled them to leave their homes. Id. Furthermore, Defendants’ “facilitation” argument is unsupported by Supreme Court precedent. ECF No. 15 at 4-6. For all of these reasons, and for the reasons in Plaintiffs’ prior briefs, Defendants are unlikely to succeed on the merits of their appeal.
II. The Plaintiff Class Would Suffer Harm If the Preliminary Injunction Is Stayed, the Injunction Does Not Harm Defendants, and the Injunction Serves the Public Interest.
This Court correctly held, based on undisputed evidence, that absent an injunction, “the irreparable harm confronting each member of the class is the same as for each Named Plaintiff throughout these proceedings: at minimum, increased health risks, and perhaps the permanent inability to obtain the abortion to which they are legally entitled.” Mem. Op. at 27. This is true even for class members who ultimately do not wish to obtain abortions, because they will not be free to make informed and voluntary choices unless Defendants are enjoined from continuing to engage in the strong-arm tactics they have heretofore employed. On the other hand, “Defendants have not shown any legitimate interest that will be harmed by the issuance of a preliminary injunction.” Id. Therefore, Plaintiffs would be harmed by a stay, Defendants would not be harmed if their request for a stay is denied, and a stay would not serve the public interest. Id.
CONCLUSION For the foregoing reasons, Defendants’ motion for a stay of the preliminary injunction pending appeal should be denied.

April 5, 2018

Respectfully submitted, 5

Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 6 of 7
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org sknizhnik@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
6

Case 1:17-cv-02122-TSC Document 130 Filed 04/05/18 Page 7 of 7 Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 mwroe@rshc-law.com *Admitted pro hac vice Attorneys for Plaintiffs
7

 
 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 18- 5093

UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad )

litem to unaccompanied minor JANE )

DOE, on behalf of herself and others )

similarly situated; JANE ROE and

)

on behalf of herself and others

)

similarly situated; and JANE POE

)

and JANE MOE,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

DEFENDANTS’ MOTION FOR A STAY OF THE PRELIMINARY INJUNCTION AND REQUEST TO CERTIFY
APPEAL OF CLASS CERTIFICATION

CHAD A. READLER Acting Assistant Attorney General Civil Division
HASHIM MOOPPAN Deputy Assistant Attorney General Civil Division
AUGUST E. FLENTJE Special Counsel

W. DANIEL SHIEH SABATINO F. LEO MICHAEL C. HEYSE CHRISTINA P. GREER Trial Attorneys Office of Immigration Litigation Civil Division U.S. Department of Justice PO Box 878, Ben Franklin Station Washington, DC 20044

ERNESTO H. MOLINA Deputy Director

INTRODUCTION Defendants seek a stay pending appeal of the district court’s order granting class-wide injunctive relief against the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (“ORR”) and authorization to appeal the district court’s class certification order. ECF 127. A stay was requested from the district court on April 3, 2018, but has not been granted. This Court should enter a stay pending appeal for three reasons. First, the district court disregarded well-established law by certifying a class when there was no plaintiff with a live claim – and had not been for months – and by certifying a vastly overbroad class that sweeps in all pregnant minors, including the large majority who do not want abortion services and many who will not agree with the controversial pro-choice claims being asserted on their purported behalf. Second, the class-wide injunction imposes a gag order on ORR, supported by no legal justification or basis, preventing ORR from communicating with medical professionals or parents. Third, a class-wide requirement that ORR facilitate an abortion for any pregnant minor in its care is manifestly wrong. The Constitution does not require ORR to facilitate abortions, and this Court’s Garza ruling held that the Constitution requires the government to facilitate abortion only in specific factual circumstances, not in every circumstance.
1

The injunction will immediately affect day-to-day government operations in a manner that will result in irreparable harm. The injunction restricts ORR’s ability to provide appropriate medical care, to involve parents when appropriate, and to properly vet future sponsors. The injunction will require ORR to facilitate the ending of life or potential life, irrespective of the circumstances – even after fetal viability. Conversely, a stay will not cause the plaintiffs any harm. Indeed, no class representative retains any active stake in this matter. If an individual child seeks an abortion in the future, she can seek relief in federal court, which can consider her individual circumstances, as is necessary under the governing law and has occurred in the handful of cases that have arisen since this litigation was filed nearly six months ago.
RELEVANT PROCEDURAL HISTORY This case involves four named plaintiffs and one plaintiff’s guardian ad litem. Only two agreed to serve as class representatives; their claims are fully resolved, and neither remains in ORR custody. Jane Doe filed the original suit with her guardian ad litem, Rochelle Garza. She obtained preliminary relief and this Court affirmed. She had an abortion shortly thereafter in October 2017, and was released from ORR custody and turned 18 in January 2018. ECF 53 at 6; 1181, ¶ 17. Jane Roe and Jane Poe joined as plaintiffs in an amended complaint in December 2017. Only Roe agreed to serve as a class representative. ECF 61.
2

They received preliminary relief in December 2017. ECF 73. Roe was released from custody while the government’s appeal was pending when it was discovered that she was an adult. The injunction running to Poe was not appealed. Finally, Jane Moe was added in a Second Amended Complaint on January 11, 2018. ECF 104. Moe sought an injunction but was released to a sponsor’s custody on January 14, 2018, before the district court ruled. ECF 114, at 1. Moe declined to serve as a class representative. ECF 118-1, at 1-2.
Despite there being no live claims for over two months, and no class representatives still in ORR custody, on March 30, 2018, the district court certified a class of “all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government[,]” and granted injunctive relief providing, among other things, that Defendants are:
(1) Enjoined from interfering with or obstructing any class member’s access to . . . an abortion . . . ;
(2) Enjoined from forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion;
ECF 127, at 1-2. On April 3, Defendants requested in district court a stay pending appeal, which remains pending.
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ARGUMENT In considering whether to grant a stay pending appeal, the Court weighs: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985). Courts have long recognized that “the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757 (1996). Here, the preliminary injunction substantially encroaches on the Executive Branch’s sovereign authority over immigration matters without adequate justification. I. The Government Is Likely to Succeed on the Merits of Its Appeal. A. The district court committed legal error by certifying a class The Court should grant a stay pending appeal because the district court erred in a myriad of respects. First, the court certified the class after the claims of all putative class representatives became moot. Second, plaintiffs cannot demonstrate that the certified class of all pregnant minors meets the adequacy, commonality, and typicality requirements. Even a narrower class of minors in ORR custody who
4

seek abortion services would fail under Rule 23, as the different circumstances presented cannot be resolved by granting common relief.
Plaintiffs “must affirmatively demonstrate [their] compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). They must show: (1) “that the class is so numerous that joinder of all members is impractical”; (2) questions of law or fact common to the class; (3) that the claims or defenses of the named plaintiffs are typical of claims or defenses of the class; and (4) that the named plaintiffs will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a).
This Court has jurisdiction under 28 U.S.C. § 1292(a)(1) to review the class certification order because it is “inextricably bound up with” the issuance of classwide injunctive relief. See Wagner v. Taylor, 836 F.2d 578, 586 (D.C. Cir. 1987). The preliminary injunction and class certification here are “inextricably bound up” because only if the class is sustained can the district court order ORR to facilitate abortions and bar ORR from sharing information about class members. Nonetheless, we also ask this Court to certify an appeal under Rule 23(f) because the district court’s class certification was “manifestly erroneous.” In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 104-06 (D.C. Cir. 2002).
5

1. Class certification was improper because the named plaintiffs’ claims are moot.
It is well-established that “a litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court.” Sosna v. Iowa, 419 U.S. 393, 403 (1975) (emphasis added). It is only upon certification that “‘the class of unnamed persons described in the certification acquire[s] a legal status separate from the interest asserted by [the named plaintiff],’ with the result that a live controversy may continue to exist, even after the claim of the named plaintiff becomes moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013). When the named plaintiffs’ claims become moot prior to class certification, as occured here, dismissal is required. Kremens v. Bartley, 431 U.S. 119, 130-33 (1977) (holding that putative class members’ claims becoming moot prior to class certification rendered certification inappropriate and required dismissal of the suit).
Here, at the time of certification, the claims of the two proposed class representatives (Doe and Roe) had been moot since October and December 2017, respectively; both were adults and therefore not members of the certified class; and both had been out of ORR custody for over two months. Thus, certification was improper. See Genesis Healthcare, 569 U.S. at 73. A class action can survive mootness of the named plaintiffs’ claims only when “the named plaintiff’s
6

individual claims become moot after the class has been duly certified.“ Id. at 74. Here the claims became moot before the class was certified.
Neither Doe nor Roe have “inherently transitory” claims that avoided resolution and are excepted from the mootness doctrine. The exception applies only when “the claims raised are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.ˮ Genesis Healthcare, 569 U.S. at 76. The course of this litigation proves that these claims do not qualify. Here, the class certification motion in this case was pending for months – since October 2017, before Doe’s and Roe’s claims became moot.
Further, the inherently transitory exception cannot apply here because mootness resulted from the merits relief granted by the district court. The district court’s injunctive rulings addressed the individual claims of three named plaintiffs prior to mootness, and it could have addressed class certification at that time. Claims are not “inherently transitoryˮ where they expire only because the litigation has run its course through court ordered relief extinguishing the claim. See Genesis Healthcare, 569 U.S. at 77 (exception applies when “no plaintiff possessed a peronal stake in the suit long enough for litigation to run its course“); Sosna, 419 U.S. at 403 (discussing exception in the context of statutory deadlines or time limits that passed of their own accord).
7

2. Class certification was improper because the requirements of Rule 23 are not met
Even if mootness were not a bar, class certification was improper because plaintiffs cannot meet the Rule 23 adequacy, commonality, and typicality requirements.
a. Adequacy Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” The adequacy requirement protects the due process rights of absent class members who will be bound by the judgment. In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002). Adequacy turns on two inquiries: (1) “the representative must appear able to vigorously prosecute the interests of the class through qualified counsel,” and (2) “the named representative must not have antagonistic or conflicting interests with the unnamed members of the class.” Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997). Here, Doe and Roe are not adequate representatives. Because their individual claims are moot, the Court must specially assure itself of their adequacy under Rule 23. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980) (where class representative’s claims are moot, court must determine “that vigorous advocacy can be assured through means other than the traditional requirement of a ‘personal stake in the outcome.’”); Sosna, 419 U.S. at 403; see also DL v. Dist. of
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Columbia, 860 F.3d 713, 726 (D.C. Cir. 2017). Indeed, the Supreme Court has rejected class representatives on the basis of adequacy where the class representatives’ claims became moot. See, e.g., Hall v. Beals, 396 U.S. 45, 48-50 (1969); Cf. Long v. Dist. of Columbia, 469 F.2d 927 (D.C. Cir. 1972); Spriggs v. Wilson, 467 F.2d 382 (D.C. Cir. 1972).
The district court failed to address this aspect of adequacy. Doe and Roe no longer have a personal stake in the outcome of the claim, and unlike the class representatives found adequate despite mootness in Sosna and DL, they were only briefly involved with this case. See Sosna, 419 U.S. 393; DL, 860 F.3d 713. Doe had an abortion nearly six months ago (ECF 53 at 6, ECF 118-1 at 4, ¶ 17), and was released from ORR care and was no longer a minor over two months prior to certification (ECF 115-1 at 2, ECF 118-1 at 4, ¶ 17). Roe was an adult when she came into ORR custody – reason alone to find her an inadequate representative – and was released from ORR care over three months ago (ECF 84 at 2, 94 at 1, ECF 118-1 at 5, ¶¶ 26-27). Said differently, Roe is not – and has never been – a member of the class she currently represents. Moreover, there is no colorable prospect that either plaintiff will again be in the custody of ORR as pregnant unaccompanied minors. Further, they provided no statement in their declarations indicating they would vigorously pursue class claims, but rather spoke only of furthering their own immediate interests in obtaining abortions. See ECF 5-2; 63-
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2. Accordingly they cannot “fairly and adequately protect the interests of the class.” Sosna, 419 U.S. at 406.
Furthermore, whether the class representatives have a personal stake in the claim is particularly important in the abortion context and when dealing with children. The fact that Doe and Roe wanted abortions while they were pregnant does not mean that they are adequate representatives now that they are no longer in that position, given that positions on abortion are known to evolve over time and with changing circumstances. See, e.g., McCorvey v. Hill, 385 F.3d 486 (5th Cir. 2004) (suit brought by “Jane Roe” from Roe v. Wade asking district court to revisit Roe). The potential for changed minds and the lack of any ongoing personal interest presents a real potential for a conflict of interest that implicates due process concerns. Specifically, any judgment or settlement that results from this litigation, at the direction of non-class members Doe and Roe, who are not children and not subject to ORR custody, will bind other young women who are depending on ORR to provide custody and care at a particularly vulnerable time.
Indeed, plaintiff Rochelle Garza, Doe’s guardian ad litem, is now subject to a Texas state ethics investigation due to her pursuit of an abortion for another child in ORR custody. See Doe v. ORR, 884 F.3d 269, 279 (2018) (Jones, J., concurring in part) (“if the Garzas truly had the best interests of [the girl] in mind, they would not oppose the agency’s request that the federal district court appoint a truly
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neutral guardian ad litem.”); Doe v. ORR, No. 1:18-cv-26 (S.D. Tex. Mar. 12, 2018) (dismissing case in which Garza sought judicial bypass order for a child after child told court she did not want an abortion). Yet this minor is now a class member simply because she is pregnant. This further illustrates that plaintiffs are not adequate class representatives.
Finally, even if Doe or Roe could adequately protect the interests of minors in ORR custody seeking abortions, they certainly cannot adequately represent the interests of all pregnant minors in ORR custody. The district court failed to consider this fundamental flaw in its certification order. Members of such a broad class undoubtedly hold significantly divergent views on the controversial prochoice claims being asserted on their purported behalf. Many pregnant minors in ORR custody do not want an abortion, may strongly oppose abortions, and indeed support ORR’s challenged conduct here. See Exhibit A, Sualog Decl. ¶ 13 (“Most UACs in ORR care and custody do not request abortions”). Those minors want pregnancy-related, delivery, and post-partum care, not the abortion-focused remedy ordered by the court, or harassment by pro-choice class counsel or organizations. See Doe, 884 F. 3d at 275 (5th Cir. 2018) (Jones, J., concurring in part) (“I concur separately” to “prevent the continued sidestepping of ORR’s custodial role by advocacy groups seeking to extend abortion rights”).
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The district court also erred in granting class certification based on the ongoing custody of Jane Poe. See Memorandum, ECF No. 126, at 17 (“J.P. still has claims arising out of Defendants’ polices or practices that involve forced disclosure of her decision to obtain an abortion”). Poe has never sought to serve as a class representative. See ECF 61-1; see also ECF 130 at 2 n.1 (“J.P. was not proposed as a class representative”). Accordingly, the district court could not base certification on finding she had any limited ongoing claim.1
Two people who sought and obtained abortions, are not currently pregnant, are not minors, and who are not in ORR custody, cannot fairly and adequately represent the much larger class of all pregnant minors in ORR custody, almost all of whom seek to carry their pregnancies to term and who are noticeably unrepresented in this litigation. See ECF 53-1 (out of 420 pregnant minors in ORR custody during fiscal year 2017, only 18 made a preliminary request for abortion services).
b. Commonality Commonality requires that plaintiffs’ claims “must be of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, 564 U.S. at 350. And “commonality is . . . lacking where the case will turn on a series of individualized
1 Moe – who was released to a sponsor in January – withdrew as a class representative (ECF 118-1, ¶17).
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inquiries.” Disability Rights Council v. WMATA, 239 F.R.D. 9, 26 (D.D.C. 2006). Commonality does not exist here because, under this Court’s decision in Garza, whether ORR must facilitate an abortion under the undue burden standard rests on the individual circumstances presented by each child. Comparing the four named plaintiffs’ claims here —Doe, Roe, Poe, and Moe — illustrates their lack of commonality. Each plaintiff’s request for abortion services implicated distinct circumstances that would also vary across a class of minors seeking abortion services.
The ability to obtain release from ORR custody is one such circumstance. In assessing her claim, this Court found it critical that Doe’s sponsorship search lasted for weeks. Garza, 874 F.3d at 739. But Moe was released to a sponsor just days after filing her claim. ECF 114. Roe, too, was released just days after seeking relief in district court and while the government’s appeal of injunctive relief remained pending because she was found to be 18 years old. Doe claimed she could not return to her country of nationality, another factor this Court found relevant, Garza, 874 F.3d at 740, but none of the other named plaintiffs raised similar concerns.
Another circumstance that destroys commonality involves the age and special needs of the minors. Very young teens would require special care in addressing their pregnancies – concerns that the district court did not even consider
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or discuss and which raise heightened concerns, given the agenda of the class representatives. Doe, 884 F.3d at 275 (Jones, J., concurring in part) (describing events that led to Garza seeking a judicial bypass for a fourteen year old who did not want an abortion). And not all minors in custody of HHS are located in a state that provides for a judicial bypass to consider the minor’s level of maturity: Doe was, but Poe was not. See ECF 30 ¶ 4; 66 at 8.
Class action treatment is normally inappropriate for due process clause claims, as the constitutional inquiry depends on the individual claimants’ facts and circumstances. See Jennings v. Rodriguez, 138 S. Ct. 830, 851-52 (2018) (remanding to reconsider “whether a Rule 23(b)(2) class action” is appropriate because “[d]ue process is flexible, we have stressed repeatedly, and it calls for such procedural protections as the particular situation demands”). The due process inquiry at issue here is good example. Plaintiffs cannot reasonably dispute that minors who enter immigration custody while pregnant do so at varying stages of their pregnancy, hail from different countries with different return prospects, have different ages and maturity levels, have different potential to be promptly released to a parent or sponsor, and have different religious and cultural backgrounds that directly impact their decisions regarding a pregnancy. The minors may also present distinct mental health issues that affect their decision-making abilities. This non-exhaustive list shows why no “single injunction or declaratory judgment”
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can address the due process claims of all pregnant minors in ORR custody. Id. at 852.
c. Typicality The class as certified also does not satisfy the typicality requirement. Typicality looks at whether the “individual’s claim will be typical of the class claims.” Wal-Mart Stores, 564 U.S. at 353. This inquiry “tend[s] to merge” with the commonality requirement, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13, (1982), and fails here for all those same reasons: different pregnant minors will seek different types of medical treatment, present unique circumstances regarding age and maturity, and have differing sponsorship prospects. Most importantly, given that the vast majority of minors in ORR custody do not seek abortions, the claims of Doe and Roe are not typical of the interests of that much larger group of minors who seek to carry their pregnancies to term. B. The district court erred in granting injunctive relief
The district court further erred by granting injunctive relief that bars ORR from telling anyone, including medical personnel, about the abortion decisions of any pregnant minor in its care, and that requires ORR to facilitate the abortion of any pregnant minor in its care, regardless of the circumstances.
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1. The district court erred by barring ORR from revealing pregnancyrelated information. The district court’s memorandum does not discuss, and provides no legal
basis for, enjoining ORR “from forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion[.]” ECF 127, at 2. Plaintiffs’ claim in district court was that ORR’s parental notification policy violates their First Amendment right against compelled speech. See ECF 118-1, at 17-18. ORR, however, does not require pregnant minors to say anything to anyone, including their parents, and a First Amendment claim that a government agency cannot share information to carry out its government duties lacks merit. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 560 (2005) (“government speech . . . is not susceptible to First Amendment challenge”); Nat’l Assoc. of Manufacturers v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (a “compelled-speech violation’ occur[s] when ‘the complaining speaker’s own message was affected’”).
Nor is there any basis for concluding that ORR’s notification of parents in appropriate circumstances would violate due process. ORR and its grantees currently do not disclose health situations to parents if precluded by state law or if doing so would “endanger the [minor’s] health and well-being.” Sualog Decl. ¶ 10. Rather, ORR’s parental notification policy exists “to make parents aware of their child’s status, to help lead to the best decisions for the child’s health, and to
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advance the child’s best interests.” Sualog Decl. ¶ 7. A blanket restriction on parental notification in every circumstance undermines this aim. In many circumstances, ORR appropriately includes a minor’s parents in the discussions regarding pregnancy or abortion. Cf. Belloti v. Baird, 443 U.S. 622, 634-41 & n.21 (1979) (minors require special treatment due to “lack [of] experience, perspective and judgment” necessary to make critical life decisions or select a medical professional and States may reasonably require parental consultation for a minor seeking an abortion). If a “State reasonably may determine that parental consultation is often desirable and in the best interest of the minor,” id. at 640, a fortiori ORR may consider a child’s individual circumstances and involve the child’s parents when appropriate. This gag order that applies in all circumstances cannot be sustained.
Barring notification of other individuals in all circumstances is similarly infirm. Indeed, the injunction significantly impairs ORR’s ability to provide pregnant minors with appropriate medical care, interfering with Defendants’ ability to share a minor’s abortion medical records with authorized medical personnel provided through ORR. It also impairs Defendants’ ability to vet potential sponsors to place minors in a safe and stable environment. Given the strong sentiments abortion evokes, Defendants might need to inquire as to a potential sponsor’s views on the issue to ensure the sponsor would not retaliate against a
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minor who obtained an abortion. Indeed, “[i]f ORR concludes a [minor’s] pregnancy or abortion would lead to . . . abuse by a . . . potential sponsor (including a parental sponsor), then ORR does not release the [child] to that sponsor.” Sualog Decl. ¶ 10. Allowing Defendants to disclose this information when necessary and appropriate is critical to evaluate potential sponsors.
2. The district court erred by requiring government facilitation of abortions The district court enjoined Defendants from “obstructing any class
member’s access to . . . an abortion[.]” ECF 127, at 1. The Constitution as interpreted in Garza does not require ORR to facilitate abortions under all circumstances, but rather only in specific factual circumstances.2 The order is overbroad under the Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), framework, in which the government may pursue its interest in protecting life before fetal viability, provided it does so without imposing an undue burden on the mother. After viability, the government may regulate or even proscribe abortion. Id. at 879. But the court’s order requires ORR to facilitate abortion no matter the circumstances, without regard to fetal viability or any other circumstance. Thus, to sustain the injunction, this Court must agree that the ORR policies and procedures constitute an undue burden in every possible circumstance.
2 We preserve the argument that this Court’s en banc decision in Garza was wrongly decided.
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The district court did not so find, and plaintiffs have not, and cannot, make that showing.
The Garza Court concluded that the ability to timely find a sponsor plays an important role in determining whether there is a right to court-ordered facilitation of the abortion by the government. See 874 F.3d at 738-39 (“centerpiece of the panel order” is the expeditious search for a sponsor and accepting that it is possible some “type[s] of short-term burden . . . could plausibly pass muster under Supreme Court precedent”); see id. at 739 (identifying five factual issues relating to promptly finding a sponsor that may be relevant to the right to court-ordered relief). In Doe’s case, what most troubled this Court was that the government had not alleged that “there was any prospect of finding a sponsor at all,” or that “a nonfamily member could be identified, vetted, and take custody of J.D. within [the requested] eleven days.” Id.
This Court did not hold, however, that the sponsorship process per se constitutes an undue burden because it “is typically a lengthy, complex process involving multiple stages, over which the UC has no control[.]” ECF 126, at 27. Rather, the Court acknowledged the possibility that the sponsorship process could resolve the constitutional question. Garza, 874 F.3d at 739.
The case of Jane Moe illustrates this point. Moe sought court-ordered government facilitation of her abortion on January 11, 2018, but she was released
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to a sponsor just three days later, on January 14, 2018. ECF 105, 114. This is precisely the “type of short-term burden” this Court suggested “could plausibly pass muster under Supreme Court precedent to bar an abortion.” Garza, 874 F.3d at 739. Indeed, the Supreme Court has approved state law regimes that take up to three weeks, once a case is filed, to resolve whether a child may consent to abortion. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990) (acknowledging that bypass “procedure may require up to 22 days in a rare case” and explaining that Court has “upheld a Missouri statute that contained a bypass procedure that could require 17 calendar days plus a sufficient time for deliberation and decisionmaking at both the trial and appellate levels”).
The potential for voluntary return similarly undermines any suggestion that all pregnant minors face an undue burden under the current ORR system. The Garza Court suggested that voluntary return was overly burdensome for Jane Doe “given both the life-threatening abuse that J.D. claims to face upon return, and her potential claims of legal entitlement to remain in the United States.” Id. at 740. But not all minors present those circumstances, and many could voluntarily return expeditiously to home countries without any fear of abuse or persecution. Indeed, none of the named plaintiffs other than Doe put forward facts disclaiming their ability to return to their country of nationality, nor did they show that voluntary return imposes an undue burden in every case, as is required to sustain the district
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court’s class-wide ruling. Id. Given these points, the district court was wrong to issue a class-wide injunction.
Finally, other factors are also highly relevant to when the due process clause would compel ORR to facilitate an abortion, including the age of the minor, whether the abortion is elective, whether viability has been reached, whether state bypass mechanisms exist or have been complied with, whether the abortion would violate state law, whether consular involvement of the country of nationality is appropriate or needed, the recommendations of ORR or private medical professionals, and the mental state of the child. The district court grappled with none of these issues in issuing undifferentiated class-wide relief, a ruling that cannot be squared with Garza or the individual circumstances that are relevant to ORR’s custodial determination. II. The Remaining Factors Favor Granting a Stay
The plaintiffs also have not, and cannot, show irreparable harm to justify this injunction. Staying the injunction will not impact either of the two class representatives, as neither is in ORR custody. Absent a class representative with a live stake in this matter, the potential harm to an unidentified pregnant minor seeking an abortion is speculative at best. Any such harm could be addressed at the time that unidentified minor’s individual claim arises, as this litigation has shown. See Whole Woman’s Health v.Hellerstedt, 136 S. Ct. 2292, 2311 (2016);
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Gonzales, 550 U.S. at 164. If anything, it is the potential involvement of ACLU abortion advocates in the decision-making of all pregnant minors that would cause irreparable harm to those children, not waiting for a live claim to rule on these issues. See Doe, 884 F.3d at 275 (Jones, J., concurring in part).
The balance of the harms tilts strongly toward the government. The harm to the government is immediate, and irreversible, the moment it must facilitate the termination of life or potential life in compliance with the district court’s unstayed order. Moreover, ORR’s interest in complying with its statutory custodial obligations will be irreparably harmed if ORR is unable to communicate openly with medical personnel and the parents of children who come under its care. The gag order significantly restricts ORR’s ability to: (1) provide appropriate medical attention to the minor; (2) involve the minor’s parents as it deems necessary; and (3) properly vet potential sponsors for safe and stable placement.
Finally, the public interest also weighs against incentivizing illegal immigration by compelling the federal government to facilitate requests for an elective abortion. Cf. Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The government’s interest in efficient administration of the immigration laws at the border also is weighty.”). The balance of the hardships and the public interest, thus, weigh in favor of a stay.
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CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court enter a stay pending appeal of the district court’s preliminary injunction and class certification.

DATED: April 9, 2018
CHAD A. READLER Acting Assistant Attorney General Civil Division
HASHIM MOOPPAN Deputy Assistant Attorney General
AUGUST E. FLENTJE Special Counsel Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

Respectfully submitted,
BY: /s/ Michael C. Heyse MICHAEL C. HEYSE W. DANIEL SHIEH CHRISTINA P. GREER SABATINO F. LEO Trial Attorneys Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-7002 Fax: (202) 616-4923 michael.heyse@usdoj.gov daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov
Attorneys for Defendants-Appellants
in their official capacities

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Motion complies with the type-volume
limitation of Fed. R. App. P. 27 because it contains 5,171 words. This Motion
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
Word 14-point Times New Roman typeface.
/s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney

EXHIBIT A

ADDENDUM

Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

MEMORANDUM OPINION AND ORDER Plaintiff Rochelle Garza, on behalf of a putative class of unaccompanied, undocumented minors, has sued Eric Hargan, Acting Secretary of the Department of Health and Human Services, Stephen Wagner, Acting Assistant Secretary of the Administration for Children and Families, and E. Scott Lloyd, Director of the Office of Refugee Resettlement, alleging that Defendants have violated the minors’ constitutional rights by preventing them from terminating their pregnancies or otherwise availing themselves of the full panoply of legally available reproductive healthcare services while in federal custody. Pending before the court are Plaintiffs’ Motion for Class Certification (ECF No. 18) and Motion for a Preliminary Injunction (ECF No. 5). Having reviewed the parties’ filings (including the briefs of amici curiae), the record, and the relevant case law, the court hereby GRANTS Plaintiffs’ Motion for Class Certification. The relevant class is defined as all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government. For the

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reasons set forth below, the court further GRANTS Plaintiffs’ Motion for a Preliminary Injunction.
I. BACKGROUND The Office of Refugee Resettlement (ORR), which is headed by its Director, E. Scott Lloyd, is responsible for “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status.” 6 U.S.C. § 279(b)(1)(A). As part of that responsibility, ORR is charged with “making placement determinations” for UCs, “implementing the placement determinations,” “implementing policies with respect to the care and placement” of UCs, and housing them. Id. § 279(b)(1)(C)–(L). In executing these duties, ORR is charged with “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied minor child.” Id. § 279(b)(1)(B). ORR places UCs with federal grantee organizations that provide shelter and services in compliance with ORR policies and procedures. (ECF No. 10-1 ¶¶5–6). In March 2017, ORR instructed employees at federally funded shelters that they “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR,” (ECF No. 5-4), are required to “notify ORR through [assigned federal staff] immediately of any request or interest on any girl’s part in terminating her pregnancy,” (ECF No. 5-5 at 5), and are not permitted to “support[] abortion services pre or post-release; only pregnancy services and life-affirming options counseling.” (ECF No. 5-6 at 2). The Director’s approval must be in the form of written authorization, and is required “whether the procedure will be paid for with Federal funds or by other means.” (ECF No. 5-5 at 3). “Facilitation” includes all actions relating to scheduling appointments, arranging transportation, pursuing a judicial bypass, “or any other facilitative step” in relation to an abortion procedure. (ECF No. 5-
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Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 3 of 28
5 at 5). The record indicates that a UC seeking an abortion must also obtain an ultrasound and options counseling from a provider on a pre-approved list, and “obtain parental consent, which will necessitate options counseling with [her parents], plus signed, notarized declaration of consent.” (ECF No. 5-10 at 3; see also ECF No. 5-9 at 2).
A. Proposed Class and Class Representatives Plaintiffs seek to form a class that would include all pregnant UCs who are or will be in
federal custody and, accordingly, are or will be subject to ORR’s policies or practices. Named Plaintiffs include four female UCs—Jane Doe (J.D.), Jane Roe (J.R.), Jane Poe (J.P.), and Jane Moe (J.M.)—each of whom has at some point been both pregnant and in ORR custody since Plaintiffs filed the case in October 2017.
1. Jane Doe J.D., the original named plaintiff in this case, is a UC who entered the United States in September 2017, when she was 17 years old. She was apprehended at the U.S. border and remanded to ORR custody at a shelter in Texas. (Findings of Fact in Supp. of Am. TRO ¶¶1–2, ECF No. 30). After a medical examination confirmed that she was pregnant, J.D. sought to terminate her pregnancy, and with the assistance of a guardian ad litem and an attorney ad litem, sought and received a judicial bypass of Texas’s parental notification and consent requirements. (ECF No. 30 ¶¶3–4). J.D. obtained private funding for the procedure, and her guardian and/or attorney ad litem agreed to transport her to have the procedure. (ECF No. 30 ¶10). Nevertheless, when J.D. attempted to complete the final stages of Texas’s procedure for obtaining an abortion, Defendants refused to transport her to the facility and refused to allow anyone else to transport her, claiming that transporting J.D. or allowing her transportation would constitute “facilitation.” (ECF No. 30 ¶6). Defendants maintained that under ORR policy, J.D.
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could obtain an abortion by leaving ORR’s custody in one of two ways: (1) if a third party were to indicate a willingness to serve as a sponsor for J.D., qualify for that position under applicable legal requirements, complete the administrative review process, and obtain ORR approval; or (2) if J.D. were to voluntarily self-deport to her home country, where Defendants conceded that abortion is illegal. (ECF No. 30 ¶8).
Defendants also employed other means to dissuade J.D. from having an abortion, such as requiring her to undergo counseling from a religiously-affiliated crisis pregnancy center (some version of which appears to be mandatory for all pregnant minors seeking termination while in ORR custody)1, and requiring her to view a sonogram. (ECF No. 30 ¶7). ORR also notified J.D.’s mother of her decision, despite the fact that J.D. had informed ORR that her parents were abusive, and that she fears returning to her home country for that reason. (Decl. of Marie Christine Cortez ¶¶8, 11, ECF No. 41-1).
This court granted J.D.’s request for injunctive relief on October 18, 2017. Defendants immediately sought an emergency stay pending appeal, which a divided panel of the D.C. Circuit granted in part on October 20, over the dissenting statement of Circuit Judge Millett. On October 24, however, the D.C. Circuit, sitting en banc, permitted the injunction to go into effect, “substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.” Garza v. Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017) (mem). J.D. was able to terminate her pregnancy, and was released to a sponsor on January 15, 2018. (Decl. of Jonathan White ¶4, ECF No. 115-1).
1 (See ECF No. 121-3 at 2, 4 (noting requirement for “spiritual counseling” and “life-affirming options counseling”); ECF No. 121-15 at 161–62.
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2. Jane Poe J.P. is a 17-year old UC who was detained at the U.S. border and remanded to ORR custody at a shelter in an undisclosed location. In or around the week of December 11, 2017, J.P.’s physician informed her that her pregnancy had entered the second trimester. After discussing her options with her physician, J.P. decided to terminate the pregnancy. (TRO ¶7, ECF No. 73). J.P. was prevented from doing so by the ORR policy, and Government counsel subsequently produced, at the court’s request, a document memorializing that decision. (ORR Decision Doc., ECF No. 92-1). The document indicates that J.P.’s pregnancy was a result of rape in her home country, prior to her journey to the United States. (ECF No. 92-1 at 1–2). J.P. also reported that although she faced substantial family pressure to continue with the pregnancy, she had made three requests to have an abortion. (ECF No. 92-1 at 2). The document also reveals the basis of ORR’s decision to forbid J.P. from obtaining an abortion—namely, Director Lloyd’s belief that abortion constitutes “violence that has the ultimate destruction of another human being as its goal,” that “abortion does not here cure the reality that she is the victim of an assault,” that “[t]o decline to assist in an abortion here is to decline to participate in violence against an innocent life.” (ECF No. 92-1 at 7–8). Lloyd also stated: At bottom, this is a question of what is in the interest of the young woman and her child. How could abortion be in their best interest where other options are available, and where the child might even survive outside the womb at this stage of the pregnancy? Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her. I conclude that it is not in her interest. (ECF No. 92-1 at 8). The Decision Document concluded: Refuge is the basis of our name and is at the core of what we provide, and we provide this to all the minors in our care, including their unborn children, every day. In this request, we are being asked to participate in killing a human being in our care. I cannot direct the program to proceed in this manner. We cannot be a
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place of refuge while we are at the same time a place of violence. We have to choose, and we ought to choose to protect life rather than to destroy it. (ECF No. 92-1 at 8). This court granted J.P.’s request for injunctive relief on December 18, 2017. (ECF No. 73). ORR elected not to appeal this court’s order, and allowed J.P. to obtain an abortion procedure. (See Appellants’ Emergency Mot. for Stay Pending Appeal at 1 n.1, ECF No. 79-1). As far as the court is aware, J.P. remains in ORR custody. 3. Jane Roe J.R. is a 17-year old UC who was detained at the U.S. border and remanded to ORR custody at a shelter in an undisclosed location. (ECF No. 73 ¶¶1–2). She learned of her pregnancy after a medical examination on November 21, 2017. (ECF No. 73 ¶3). Her physician explained her options to her, and she elected to terminate the pregnancy. (ECF No. 73 ¶3). ORR, citing its policy, refused to allow J.R. to terminate her pregnancy, despite the fact that—as with all the named Plaintiffs—the procedure would have been paid for with private funds. (ECF No. 73 ¶14). This court granted J.R.’s request for injunctive relief on December 18, 2017, and ORR appealed that decision to the D.C. Circuit. (See ECF No. 73; Defs. Notice of Appeal, ECF No. 74). Defendants subsequently moved for dismissal of that appeal in light of new information indicating that J.R. was not in fact a minor. (See Resp. to Ct. Order at 2, ECF No. 84). J.R. was later transferred to the custody of the Department of Homeland Security, where, as ORR acknowledges, regulations permit her obtain an abortion. (See ECF No. 84 at 2). 4. Jane Moe J.M. is a 17-year old UC who was detained after entering the United States and remanded to ORR custody at a shelter in an undisclosed location. (Decl. of J.M. ¶¶1–4, ECF No. 105-2). J.M. requested an abortion, but was not permitted to obtain one, pursuant to the ORR policy.
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(Decl. of J.M. ¶5). She filed a motion seeking a temporary restraining order in this court on January 11, 2018. (Appl. for TRO, ECF No. 105). Defendants responded on January 12, 2018, reasserting the positions they maintained with respect to J.D., J.P., and J.R., and noting that ORR had identified a sponsor for J.M. (Defs. Opp. to Pls. Mot. TRO at 1, ECF No. 108; Decl. of Jonathan White ¶4, ECF No. 113-1). On January 13, ORR informed the court that it had received all necessary documents and had begun the process of releasing J.M. into the sponsor’s custody, (ECF No. 113-1 ¶¶4–5), and on January 14, ORR informed the court of J.M.’s release. (Defs. Notice of Completion of the Transfer of Ms. Jane Moe, ECF No. 114).
B. Class-Wide Preliminary Injunction Plaintiffs argue that Defendants’ policies amount to a series of obstacles and restrictions
designed to “coerce and control all UCs’ pregnancy decisions to ensure that they carry their pregnancies to term while in ORR custody,” such that pregnant UCs are: (1) “deprived of comprehensive and unbiased options counseling” in favor of “coercive counseling” designed more to influence their decision-making than to “meet their medical needs”; (2) “denied the power to decide for themselves whether to involve their parents in their pregnancy decisionmaking” by a system of disclosure and parental consent requirements that cannot be bypassed; and (3) “stripped of their right to make autonomous decisions about whether and when to become a parent” by ORR’s retention of an ultimate veto power over abortion access, which is exercised as a de facto ban on abortion. (Pls. Reply to Opp. to Mot. for Class Certification at 3, 6, ECF No. 56; Mot. for Prelim. Inj. at 4, ECF No. 5-1). Plaintiffs allege that these obstacles and restrictions violate the First and Fifth Amendments to the U.S. Constitution, and seek to preliminarily enjoin Defendants from further enforcing the terms of the above policy, pattern, or set of practices. (See Pls. Second Am. Compl. ¶¶55–63, ECF No. 61-1).
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II. MOTION FOR CLASS CERTIFICATION The court has discretion to grant or deny class certification pursuant to Fed. R. Civ. P. 23(c)(1), see McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984). Under Fed. R. Civ. P. 23(a), the proponent of the class action must establish that: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Id. The proposed class must also meet one of the three additional requirements set forth in Rule 23(b): (1) that separate actions by or against individual class members would create the risk of (a) inconsistency in adjudications concerning those members, thus establishing incompatible conduct standards for the opposing party, or (b) adjudications relating to individual class members that would be practically dispositive of the interests of other nonparty members or would substantially impair or impede their ability to safeguard their interests; (2) that the opposing party acted or refused to act on grounds that apply generally to the class, such that injunctive and declaratory relief is appropriate as to the whole class; or (3), that common questions of law or fact predominate over questions affecting individual members only, and a class action is the best method to fairly and efficiently adjudicate the controversy. Fed. R. Civ. P. 23(b)(1)–(3). The proponent of the class action bears the burden of establishing that Rule 23’s requirements are met. McCarthy, 741 F.2d at 1414 n.9. Class certification is not automatic, and sets forth more than a pleading standard—Rule 23 demands affirmative demonstration of compliance, and requires proof that “there are in fact sufficiently numerous parties, common questions of law or fact, etc.” In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869,
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725 F.3d 244, 249 (D.C. Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)) (internal quotation marks omitted). While the court may find it “necessary . . . to probe behind the pleadings before coming to rest on the certification question,” id. at 249 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)) (internal quotation marks omitted), in determining whether to certify a class, a court may not examine whether “plaintiffs have stated a cause of action or will prevail on the merits.” In re Veneman, 309 F.3d 789, 794 (D.C. Cir. 2002) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)) (internal quotation marks omitted).
A. Numerosity Certification of a class action is permitted where the proposed class is “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Courts in this district generally recognize that “[t]here is no specific threshold that must be surpassed in order to satisfy the numerosity requirement; rather, the determination ‘requires examination of the specific facts of each case and imposes no absolute limitations.’” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007) (quoting Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980)). Accordingly, a plaintiff “need not provide the exact number of potential class members to satisfy the requirement, so long as there is a reasonable basis for the estimate provided.” Lightfoot v. D.C., 246 F.R.D. 326, 335 (D.D.C. 2007) (citing Bynum v. D.C., 214 F.R.D. 27, 32– 33 (D.D.C. 2003)). Nevertheless, plaintiffs must in all cases “provide evidence that joinder of all [members of the proposed class] would be impracticable.” Bynum, 214 F.R.D. at 41.
Plaintiffs argue that they have met the numerosity requirement because “Government documents suggest there are hundreds of pregnant UCs in federal government custody each year,” because documents received through discovery in another case revealed that over one
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thousand UCs in ORR custody were pregnant between August 2015 and March 2017, and because on March 6, 2017 alone, there were 38 pregnant minors in 18 programs in ORR’s national network. (ECF No. 18 at 4). Plaintiffs also maintain that joinder is “inherently impractical” because: (1) the proposed class includes unnamed and unknown members who will be pregnant in ORR custody; (2) pregnancy is an inherently temporal condition, and the UC population is transitory in nature. (ECF No. 18 at 4). Plaintiffs further note that the proposed class is geographically dispersed throughout the United States and is composed of young women with no financial independence or knowledge of their rights, making it difficult for class members to seek to enforce their rights on their own. (ECF No. 18 at 5).
The court finds that: (1) there is a reasonable basis for Plaintiffs’ estimated number of class members; and (2) that joinder is impracticable in this scenario. Plaintiffs’ estimated number of class members is sourced from ORR documents obtained during the course of this and other litigation. These documents estimate that there were 726 pregnant UCs in custody during 2014, 450 during 2015, and 682 during 2016. (ECF No. 18-5 at 2; ECF No. 19, Ex. C). Plaintiffs’ calculations—based on data provided by additional documentation—suggest that over one thousand pregnant UCs were in ORR custody between 2015 and 2017, (ECF No. 19, Ex. C; ECF No. 18-3 ¶5), and Defendants admit that there were at least 420 pregnant UCs in custody during FY 2017. (ECF No. 53 at 22). While Plaintiffs’ estimates are necessarily imprecise—in part due to limitations on the information in their possession, and in part due to the facts that pregnancy is a temporary state and residence in an ORR-funded shelter is temporary by design—they do establish a clear trend that in turn provides a reasonable basis to believe that over 100 pregnant minors are currently in ORR custody or will be in ORR custody in the foreseeable future. See Lightfoot, 246 F.R.D. at 335 (noting that “plaintiff need not
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provide the exact number of potential class members to satisfy the requirement, so long as there is a reasonable basis for the estimate provided”); see also Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.”). These numbers render joinder impractical, especially given that the proposed class members are undocumented minors who are geographically dispersed and who are not at liberty—financially or otherwise—to move or act at will inside the United States. See Kifafi, 189 F.R.D. at 176 (finding geographical dispersion relevant to impracticability of joinder). The court therefore finds that Plaintiffs have met Rule 23(a)’s numerosity requirement.2
B. Commonality A proposed class must demonstrate commonality—that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Members of the proposed class must “have suffered the same injury,” Wal-Mart Stores, Inc., 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw., Inc. v. Falcon, 457 U.S. 147, 152 (1982)) (internal quotation marks omitted), to support the existence of a common contention that “is capable of classwide resolution,” meaning “that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The commonality requirement is satisfied where the challenge is to “a uniform policy or practice that affects all class members.” DL v. District of Columbia,
2 Defendants do not directly challenge the accuracy of most of Plaintiffs’ estimates. Instead, Defendants claim that a subset of the pregnant UCs whom Plaintiffs identify—those who have actually requested an abortion—represents a more pertinent estimate of the number of proposed class members, since only these individuals can show that they were “injured” by the challenged policy or practices. Defendants’ argument is misplaced, however. The numerosity requirement is not fundamentally about whether an injury is shared among the potential members of a proposed class; that is the province of Rule 23(a)’s commonality requirement. See Wal-Mart Stores, Inc., 564 U.S. at 350 (noting that commonality requires a showing that proposed class members “have suffered the same injury”).
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713 F.3d 120, 128 (D.C. Cir. 2013); see also R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015).
Plaintiffs argue that all the proposed class members suffer the same injury—deprivation of their right to pregnancy-related care, including abortion, without interference—as a result of the same policies and practices. In particular, Plaintiffs highlight questions such as whether ORR has policies and practices that obstruct or prevent access to an abortion or abortion-related care, whether ORR can constitutionally force UCs to tell their parents or sponsors about their decision, or tell those persons themselves, and whether any such policies or practices would violate the First or Fifth Amendments. (ECF No. 18 at 6–7). Defendants contend that Plaintiffs cannot establish commonality because each class member’s factual circumstances are different. Defendants claim that these differing factual circumstances—including whether an abortion would be elective or medically necessary, whether a UC could be reunited with a parent, the availability and timing of sponsorship, and state legal requirements relating to abortion—mean that no single ruling would resolve the claims of all class members. (ECF No. 53 at 13–18).
Based on the record before it, the court concludes that Plaintiffs have satisfied the commonality requirement. Plaintiffs have offered evidence to support their contention that (a) ORR maintains a policy or engages in a set of practices regarding access to reproductive choice, pursuant to which it (b) imposes a series of restrictions that apply to all pregnant UCs in its custody and affects their ability to make certain choices regarding whether to continue or terminate their pregnancies, and (c) as part of those restrictions, maintains a parental notification requirement that cannot be bypassed and a veto power over the choice to terminate, which it exercises as a de facto ban on access to abortion. This amounts to “a uniform policy or practice that affects all class members,” DL, 713 F.3d at 128, and supports a finding that class members
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suffer a unified injury—namely that ORR’s policy or set of practices unconstitutionally violates their rights to privacy and reproductive choice. See Wal-Mart Stores, Inc., 564 U.S. at 350. Accordingly, Plaintiffs present a common question—the constitutionality of ORR’s general policy regarding reproductive options—that is “capable of classwide resolution.” Id.
Defendants’ primary argument—that factual variations affecting individual class members defeat commonality—is unavailing. While Defendants identify a number of variations in individual class members’ factual circumstances—such as whether a particular class member has requested an abortion procedure, or differences in state regulations and legal requirements concerning abortion procedures—none are fatal to the court’s commonality determination because none diminish any of the key common circumstances that form the basis of the central question in this case. The circumstances relevant to the issue of commonality are: (1) that class members are pregnant UCs; (2) that class members retain a right to privacy regarding their pregnancy-related healthcare decisions and a right to choose to terminate their pregnancy; and (3) that class members are subject to the same policies and/or practices that allegedly violate both of those rights. The combination of these shared circumstances provides a basis for the common question at the core of this litigation—whether ORR’s policies and/or practices regarding the reproductive decisions of pregnant UCs violate their constitutional rights. Based on this common legal question and any other common legal or factual sub-questions that flow from it, the court finds that the commonality requirement is satisfied.
C. Typicality A proposed class meets Rule 23’s typicality requirements when “the claims or defenses
of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Unlike commonality, which is concerned with the similarity of class members’
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injuries, the typicality requirement “focuses on whether the representatives of the class suffered a similar injury from the same course of conduct.” Bynum, 214 F.R.D. at 34. The requirement “ensures that the claims of the representative and absent class members are sufficiently similar so that the representatives’ acts are also acts on behalf of, and safeguard the interests of, the class.” Littlewolf v. Hodel, 681 F. Supp. 929, 935 (D.D.C. 1988), aff’d sub nom. Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir. 1989). Typicality is established if “[a] plaintiff’s claim . . . arises from the same event or practice or course of conduct that gives rise to a claim of another class member’s where his or her claims are based on the same legal theory.” Stewart v. Rubin, 948 F. Supp. 1077, 1088 (D.D.C. 1996), aff’d 124 F.3d 1309 (D.C. Cir. 1997) (quoting EEOC v. Printing Industry, 92 F.R.D. 51, 54 (D.D.C. 1981)). Furthermore, “factual variations between the claims of class representatives and the claims of other class members . . . do not negate typicality.” Bynum, 214 F.R.D. at 34; see also Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987) (noting that “[c]ourts have held that typicality is not destroyed merely by ‘factual variations’”); United States Trucking Emp., Inc., 75 F.R.D. 682, 688 (D.D.C. 1977) (collecting cases and noting that “where the claims or defenses raised by the named parties are typical of those of the class, differences in the factual patterns underlying the claims or defenses of individual class members will not defeat the action”).
Plaintiffs argue that J.D.’s claims are typical of the class because the deprivation of her constitutional rights is common to all members of the proposed class. In other words, they argue, J.D.—like every other pregnant UC in or soon to be in ORR custody—faced a series of obstacles that interfered with the exercise of her right to choose to end her pregnancy. Accordingly, “J.D. and the proposed class are united in their interest and injury,” as well as in their legal claims. (ECF No. 18 at 9). Defendants counter with the same arguments that they
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proffered against commonality, and claim that J.D. and the proposed class are not united in their interest because the proposed class definition would include minors who are undecided or who do not want an abortion. (ECF No. 53 at 18–19).
The court finds Defendants’ arguments unavailing for the same reasons as it did those regarding commonality. Defendants’ view of what would constitute a divergence between the claims of the Named Plaintiffs and other class members is premised on an apparent misunderstanding regarding the nature of Plaintiffs’ alleged injury. Plaintiffs claim that ORR’s policies and/or practices deprive pregnant UCs of the ability to make their own choices regarding whether to seek an abortion or disclose pregnancy-related information. If true, this deprivation would constitute an injury to all class members, regardless of which option an individual class member might ultimately choose. Thus, the fact that the Named Plaintiffs sought to terminate their pregnancies—while some class members presumably have not—does not defeat Plaintiffs’ showing on the typicality requirement.
The court concludes that J.D.’s claims and the claims of Named Plaintiffs J.R., J.P., and J.M. are typical of those of the proposed class. The record in this case establishes that the course of conduct at issue (the application of Defendants’ policies), the injury itself, and the legal theory underlying the claims are identical in all material respects to those driving the legal question that is common to the class. See Stewart, 948 F. Supp. at 1088 (noting that claims arising from “the same event or practice or course of conduct” and based on the same legal theory as other class members are considered typical). Typicality is therefore established.
D. Adequacy A proposed class meets Rule 23’s adequacy requirements where a court is persuaded that
“the representative parties will fairly and adequately protect the interests of the class.” Fed. R.
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Civ. P. 23(a)(4). The adequacy of representation is typically measured according to two criteria: (1) whether the named representative has antagonistic or conflicting interests with the members of the class; and (2) whether the representative appears capable of vigorously prosecuting class interests through qualified counsel. See Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 41 (D.D.C. 2017); Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997). The first criterion focuses on conflicts of interest, which “prevent named plaintiffs from satisfying the adequacy requirement only if they are fundamental to the suit and . . . go to the heart of the litigation.” Nat’l Veteran Legal Servs. Program, 235 F. Supp. 3d at 41 (quoting Keepseagle v. Vilsack, 102 F. Supp. 3d 205, 216 (D.D.C. 2015)). Speculative or hypothetical conflicts will not defeat the adequacy requirement. Id. at 41. The second criterion focuses on ensuring that class counsel is competent. See id. at 43.
Plaintiffs argue that the adequacy requirement is met because J.D.’s interests do not conflict with those of the class, since all class members, including J.D., seek a declaration that Defendants’ policies and practices are unconstitutional. (ECF No. 18 at 9). Plaintiffs also assert that their counsel is competent to represent the class, based on her substantial experience in reproductive freedom litigation and constitutional impact litigation more generally.3 (ECF No. 18 at 10). Defendants argue that J.D. is not an adequate representative because she obtained an abortion procedure in October 2017, and thus “her interests are moot[, she] no longer has any rights to vindicate before the court,” and therefore cannot vigorously prosecute class interests. (ECF No. 53 at 9). Defendants further argue that since this court has previously moved
3 Defendants indicated in a footnote that they also dispute whether Plaintiffs’ counsel is qualified, although they muster no specific argument in support of that contention. (ECF No. 53 at 8 n.4). The court has had ample opportunity to observe and evaluate the abilities of Plaintiffs’ counsel— who has thus far brought two successful motions for injunctive relief, and defended one decision on appeal—and finds her to be fully competent and qualified.
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expeditiously to address Named Plaintiffs’ requests for injunctive relief, it could employ the same procedure to certify a class the next time it receives a request for injunctive relief from a pregnant UC, and so the facts that pregnancy is temporary and that residence in an ORR-funded shelter is transitory do not support Plaintiffs’ adequacy arguments. (ECF No. 53 at 10–11).
The court concludes that the class representatives in this case—J.D., J.R., J.P., and J.M.—are capable of adequately protecting class interests through qualified counsel. The court rejects Defendants’ contention that J.D. (and by extension, J.R., J.P., and J.M.), are unable to vigorously prosecute class interests because their claims are now moot, whether because they left ORR custody or because they obtained an abortion prior to this ruling. A case becomes moot where “‘the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated’ in circumstances where ‘it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.’” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (quoting United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1135 (D.C. Cir. 2009)). The court notes that J.P. still has claims arising out of Defendants’ policies or practices that involve forced disclosure of her decision to obtain an abortion, claims shared by all members of the proposed class.4 Accordingly, this case does not present a situation in which it is “impossible for the court to grant any effectual relief whatever,” since the court is able to grant relief in the form of a declaration and permanent injunction addressing ORR’s disclosure policy for the entire class, including J.P. Id. (noting that “a plaintiff’s challenge will not be moot where it seeks declaratory relief as to an ongoing policy”). J.P.’s claims are therefore not moot.
4 (See, e.g., ECF No. 52) (describing continued risks to privacy of abortion decision while formerly pregnant UC remains in ORR custody).
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Indeed, even if J.P. no longer possessed live claims, the fact that this court previously granted J.D. and J.P.’s request for injunctive relief—thereby enabling them to obtain abortions— would not moot this case. Courts have recognized an exception to the mootness doctrine where an action involves claims that “are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980); see also Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991); Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975) (“There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion.”). This case fits within the Geraghty exception for at least two reasons.
First, this case involves claims from unaccompanied minors in ORR custody, a transitory population whose membership is not fixed at any given time. Accordingly, the length of time that pregnant UCs will remain in ORR custody is uncertain and unpredictable, and while the proposed class likely includes a number of pregnant UCs who will remain in custody long enough for the court to rule on class certification, Plaintiffs have no way to ensure that any particular class representative will be one of that number. See Thorpe v. Dist. of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (applying the “inherently transitory” exception for claims regarding nursing facility placement because “[t]he length of any individual’s stay in a nursing facility is impossible to predict, so even though there are certainly individuals whose claims will not expire within the time it would take to litigate their claims, there is no way for plaintiffs to ensure that the Named Plaintiffs will be those individuals”).
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Second, the right of every pregnant minor in ORR custody to seek an abortion is necessarily time limited, and with the passage of time, the risk that she will no longer be afforded a choice—along with the associated health risks—increase. As a result, class members will consistently face irreparable harm requiring the kind of emergency relief that could moot a part of their claim. Moreover, the nature of litigation means that there may be circumstances in which a court is required to rule on emergency requests for injunctive relief in a shorter timeframe than it could feasibly rule on a class certification motion, such as if a class member seeks to terminate a pregnancy that is approaching the point of viability. Rigid application of the mootness doctrine would punish Plaintiffs for seeking relief in response to urgent needs, and would effectively condition access to justice for many pregnant UCs on their willingness or ability to brave escalating risks to their health and future, as the complexity of the necessary procedure increases.
Plaintiffs name four class representatives in their Second Amended Complaint: J.D., J.P., J.R., and J.M. (ECF No. 104). Each of these minors has had claims brought on her behalf during the pendency of the motions for class certification and preliminary injunction. J.D. and J.P. each presented a clear case of irreparable harm justifying temporary relief, and accordingly received the injunctive relief they sought. J.R. and J.M.—both of whom also presented clear showings of irreparable harm—were released from ORR custody. Meanwhile, the claims of numerous potential class members remain unaddressed. The court concludes that: (1) because exceptions to the mootness doctrine apply, the fact that the Named Plaintiffs have either obtained injunctive relief or been transferred out of ORR custody does not render their claims moot, see Thorpe, 916 F. Supp. 2d at 67; and (2) the Named Plaintiffs have no conflicts of interest with the
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class and are capable of vigorously prosecuting class interests. Twelve John Does, 117 F.3d at 575–76. Accordingly, the court finds that the adequacy requirement is satisfied.
E. Rule 23(b)(2) A plaintiff seeking class certification must also satisfy one of the three Rule 23(b)
requirements. The relevant Rule 23(b) requirement in this case is 23(b)(2)—that the defendant “has acted or refused to act on grounds that apply generally to the class,” such that declaratory or injunctive relief is appropriate as to the whole class. Fed. R. Civ. P. 23(b)(2). A Rule 23(b)(2) action is specifically “intended for civil rights cases” involving allegations of class-based discrimination. In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015). Under Rule 23(b)(2), “(1) the defendant’s action or refusal to act must be ‘generally applicable to the class’, and (2) plaintiff must seek final injunctive relief or corresponding declaratory relief on behalf of the class.” Steele v. United States, 159 F. Supp. 3d 73, 81 (D.D.C. 2016), on reconsideration in part, 200 F. Supp. 3d 217 (D.D.C. 2016) (quoting Disability Rights Council of Greater Wash., 239 F.R.D. 9, 28 (2006)); see also Walsh v. Ford Motor Co., 807 F.2d 1000, 1003 n.7 (D.C. Cir. 1986). Certification under Rule 23(b)(2) is appropriate “when a single injunction or declaratory judgment would provide relief to each member of the class,” and not where each member would have grounds to seek a different injunction or declaratory judgment from the same defendant. Wal-Mart Stores, Inc., 564 U.S. at 360–61.
Plaintiffs argue that the requirements of Rule 23(b)(2) are met because (1) the proposed class seeks uniform injunctive relief to prevent Defendants from violating UCs’ right to make reproductive decisions, and (2) a single injunction would afford this relief to all class members, meaning that Defendants’ actions or refusals to act are generally applicable to the entire class. Plaintiffs further argue that the temporal and transitory nature of pregnancy and residence in an
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ORR shelter support class certification as a means to obtain a single injunction that would circumvent mootness problems, and that a class action would promote judicial economy. (ECF No. 18 at 11–12). Defendants respond with the same arguments they advanced regarding commonality and typicality—that because of factual differences in class members’ individual circumstances, Defendants’ actions or omissions do not apply generally to the class. (ECF No. 53 at 23–24). Defendants further argue that these factual variations make it impossible to issue a single injunction that would address all class members’ claims. (ECF No. 53 at 24–25).
The central issue in this case is the impact of ORR policies and/or practices on pregnant UCs’ ability to freely make reproductive choices. ORR documents reveal that its policies apply to all pregnant UCs in its custody—even those whose pregnancy is the result of rape. (See ECF No. 92-1). Furthermore, because pregnant UCs cannot freely choose whether to terminate and with whom to share information regarding their reproductive decisions, the injury—the inability to make a choice—is shared by the entire proposed class, regardless of whether individual members might choose different courses of action. Accordingly, in this case, “the defendant’s action or refusal to act [is] ‘generally applicable to the class,’” Steele v. United States, 159 F. Supp. 3d at 81, such that “a single injunction or declaratory judgment would provide relief to each member of the class,” notwithstanding the fact that class members may make different choices. Wal-Mart Stores, Inc., 564 U.S. at 360–61. Therefore, the court finds that the proposed class meets Rule 23(b)(2)’s requirements.
III. MOTION FOR PRELIMINARY INJUNCTION A preliminary injunction is an “extraordinary remedy” that is “never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). A plaintiff seeking a preliminary injunction must show that: (1)
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she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest. Id. at 20; John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). The D.C. Circuit has traditionally evaluated claims for injunctive relief on a sliding scale, whereby “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). It has been suggested, however, that a movant’s showing of likelihood of success on the merits “is an independent, free-standing requirement for a preliminary injunction.” Id. at 393 (quoting Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)).
The court finds that Plaintiffs have carried their burden of showing that preliminary injunctive relief is warranted here. Indeed, there is essentially no substantive difference between the class issues currently before this court and the issues underpinning the prior requests for temporary relief on which this court—and in one case, the D.C. Circuit—have already ruled. See Baker DC v. Nat’l Labor Relations Bd., 102 F. Supp. 3d 194, 198 (D.D.C. 2015) (“The court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction”) (quoting Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001)) (internal quotation marks omitted). Nevertheless, for the sake of completeness, the court will briefly discuss each factor here.
A. Likelihood of Success on the Merits Plaintiffs’ have made a strong showing of likelihood of success on the merits. The
Supreme Court clarified in 1992—and again in 2016—that laws or regulations restricting abortion are scrutinized under the “undue burden” standard. Planned Parenthood v. Casey, 505 U.S. 833, 874 (1992); see also Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2299
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Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 23 of 28
(2016). “An undue burden exists, and therefore a provision of law is invalid, if its purpose or
effect is to place a substantial obstacle in the path of a woman seeking an abortion before the
fetus attains viability.” Casey, 505 U.S. at 878; see also Whole Woman’s Health, 136 S.Ct. at
2299, 2309. The Court in Casey further explained that:
A statute with this purpose is invalid because the means chosen by the [government] to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid [government] interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends. Casey, 505 U.S. at 877. Accordingly, while “[t]he woman’s liberty is not so unlimited . . . that
from the outset the [government] cannot show its concern for the life of the unborn,” it is beyond
dispute that the Constitution responds to “the urgent claims of the woman to retain the ultimate
control over her destiny and her body” with at least one unequivocal constitutional command:
that the government “may not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability.” Casey, 505 U.S. at 869, 879. This basic proscription remains the law of the land and controls the outcome in this case.5
The record before the court uniformly supports the conclusion that ORR policies and
practices violate the standard and principles announced in Casey and reaffirmed in Whole
Woman’s Health. The record reveals that ORR effectively retains an absolute veto over the
reproductive decision of any young woman in its custody, a veto that is exercised routinely to bar
5 Plaintiffs’ Fifth Amendment right to decide whether to continue or terminate their pregnancies is not diminished by their status as undocumented immigrants. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Jean v. Nelson, 472 U.S. 846, 875 (1985) (noting that the Due Process Clause applies to all “persons” within the territorial jurisdiction of the United States, no matter their immigration status). The Government does not contend otherwise. Garza v. Hargan, 874 F.3d 735, 737 (D.C. Cir. 2017) (Millett, J., Concurring).
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Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 24 of 28
UCs from obtaining abortions, despite the fact that no public funds are expended to procure the procedures and notwithstanding the UC’s own wishes or intentions. In other words, ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices, including the decision of whether to continue or terminate her pregnancy. Accordingly, the court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from “making the ultimate decision” on whether or not to continue their pregnancy prior to viability—a quintessential undue burden. Casey, 505 U.S. at 879.
ORR’s policy vests the power to decide the future of a UC’s pregnancy in one man: Director Lloyd. (ECF No. 5-4). The policy provides no mechanism to ensure compliance with established constitutional dictates, or to afford a UC the opportunity to bypass the Director and effectuate her constitutional rights. Apart from his personal opinion that abortion is not in any pregnant UC’s “best interest,” the ORR policy does not require Director Lloyd to provide any justification or legal authority to unilaterally deny UCs their right to make their own reproductive choices. Moreover, the ORR decision document reveals that the Director’s ultimate decision is substantially controlled by—if not entirely based on—his ideological opposition to abortion, and even a UC who becomes pregnant as a result of rape, with all its attendant physical and psychological harms, will not be allowed to decide whether she wishes to continue that pregnancy. (See ECF No. 92-1 at 7–8). In short, ORR’s policy is premised on the notion that the Director is entitled to exercise complete control over female UCs’ reproductive decisions by virtue of the fact that they are undocumented minors in ORR custody. The adoption and implementation of such a policy is itself sufficient to raise constitutional flags. See Casey, 505 U.S. at 879 (noting that “[r]egardless of whether exceptions are made for particular
24

Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 25 of 28
circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”).6 But Defendants’ actions extend even further.
ORR implements its policy via a ban on “any action that facilitates an abortion,” (ECF No. 5-4 at 2), which includes, inter alia, any action relating to scheduling appointments, arranging transportation, making the UC available to be transported, pursuing a judicial bypass, “draft[ing] approval documents,” “review[ing] information relevant to her health and the procedure,” and even “maintain[ing] custody of her (while ensuring her health remains stable) during and after the abortion procedure.” (Defs. Mem. in Opp. to Pls. TRO & Mot. Prelim. Inj. at 12–13, ECF No. 10; ECF No. 5-5 at 5). Indeed, ORR’s interpretation of “facilitation” appears to be so capacious that it prevents not only government officials or employees from assisting pregnant UCs, but also applies to private contractors and persons who are unaffiliated with the government. Defendants even suggest that acting to ensure that a UC’s health remains stable following an abortion constitutes “facilitation,” a position which would presumably allow them to withhold medical treatment from a UC who suffered post-procedure complications.7 (See ECF No. 10 at 12–13). Defendants’ position on what constitutes “facilitation” appears to be divorced from any commonsense understanding of that term and at odds with reality. As Judge
6 Defendants suggest that the only relevant policy in operation at ORR is one requiring Director approval for “major” surgical procedures, a category which they contend happens to include abortions, but which also applies to other procedures. However, Defendants do not deny that the policy acts to prevent a UC from obtaining an abortion, and they present no evidence that ORR’s approach to abortion is even remotely similar to its approach to other medical procedures, including childbirth. (See ECF No. 53 at 25). 7 While such a scenario is hypothetical, it is not necessarily unrealistic. J.D. obtained an abortion pursuant to this court’s Order in October 2017, and remained in ORR custody for months thereafter. J.P. obtained an abortion pursuant to this court’s Order in December 2017, and remains in ORR custody at the time of this writing. Thus, had a complication arisen following either of their procedures, under Defendants’ policy, J.D or J.P could have found themselves without medical assistance.
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Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 26 of 28
Millett noted, “facilitation” is about promoting or making an action or process easier. Garza v. Hargan, 874 F.3d 735, 740 (D.C. Cir. 2017) (Millett, J., Concurring). Here, the government is not required to promote, transport, pay for, or otherwise further a UC’s decision to have an abortion. But it cannot “interfere or make things harder” by adopting a policy and practice to “categorically blockade exercise of [UCs’] constitutional right” to choose. Id. at 737.
Defendants have consistently maintained that the ORR policy does not impose an undue burden because pregnant UCs have the option of either: (1) voluntarily returning to their home countries, thereby removing themselves from ORR custody; or (2) being placed with a sponsor. (ECF No. 10 at 2, 11–12). This court does not find that either of these “options” mitigates the undue burden that ORR’s policy imposes on the young women in its custody. In light of the court’s previous orders and the D.C. Circuit’s extensive examination of Defendants’ contentions in its consideration of J.D.’s case, see Garza v. Hargan, 874 F.3d at 740, this court pretermits lengthy discussion of these arguments, but offers two points in response. First, Defendants’ voluntary departure argument conditions the exercise of UCs’ constitutional rights on their willingness to relinquish any claim that may entitle them to remain in the United States, and to return to what is in many instances—including the cases of J.D. and J.P.—a country from which they fled due to alleged abuse.8 Such a proposal renders the exercise of constitutional rights a Hobson’s choice, wherein one set of rights must be waived in order to effectuate another. That proposal in and of itself likely constitutes a substantial obstacle to a UC’s exercise of her rights—especially when voluntary departure could mean exposing herself to the risk of further abuse. This court will not sanction any policy or practice that forces vulnerable young women to
8 The court also notes that there is no guarantee that a minor’s country of origin will permit abortion, and in fact the government conceded that abortion was illegal in J.D.’s home country. (ECF No. 30 ¶8).
26

Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 27 of 28
make such a choice. Second, Defendants’ characterization of sponsorship as an “option” for pregnant UCs ignores at least two key aspects of this court’s previous findings of fact: (1) that locating a sponsor is typically a lengthy, complex process involving multiple stages, over which the UC has no control; and (2) that ORR makes the final decision of whether to approve a particular sponsor. (See ECF No. 30 ¶¶8–9). For these reasons, the sponsorship option does not allow the UC any control over her reproductive decisions, and therefore does not cure the constitutional infirmity inherent in the ORR policy. In sum, Plaintiffs have demonstrated that ORR’s policies and practices likely constitute an undue burden on the right of UCs in ORR custody to make their own reproductive choices. See Casey, 505 U.S. at 877, 879; Whole Woman’s Health, 136 S.Ct. at 2299, 2309.
B. Remaining Factors for Preliminary Injunctive Relief. The court finds that the three remaining requirements for preliminary injunctive relief are
met in this case. First, the irreparable harm confronting each member of the class is the same as for each Named Plaintiff throughout these proceedings: at a minimum, increased health risks, and perhaps the permanent inability to obtain the abortion to which they are legally entitled. Accordingly, the court finds that Plaintiffs have demonstrated irreparable harm sufficient to justify issuance of a preliminary injunction. Second, Defendants have not shown they have any legitimate interest that will be harmed by the issuance of a preliminary injunction. Accordingly, the balance of equities tips in Plaintiffs’ favor. Finally, the public interest weighs in favor of a preliminary injunction because: (1) this case involves the protection of constitutional rights, and (2) “the public has an interest in the government maintaining procedures that comply with constitutional requirements,” Ass’n of Cmty. Organizations for Reform Now (ACORN) v. Fed.
27

Case 1:17-cv-02122-TSC Document 126 Filed 03/30/18 Page 28 of 28 Emergency Mgmt. Agency (FEMA), 463 F. Supp. 2d 26, 36 (D.D.C. 2006) (citing O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992)).
IV. CONCLUSION While ORR and its Director are certainly entitled to maintain an interest in fetal life, and even to prefer that pregnant UCs in ORR custody choose one course over the other, ORR may not create or implement any policy that strips UCs of their right to make their own reproductive choices. See Casey, 505 U.S. at 879. Accordingly, Plaintiffs’ motion for a class-wide preliminary injunction is hereby GRANTED.
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Case 1:17-cv-02122-TSC Document 127 Filed 03/30/18 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiff,

)

)

v.

)

)

ERIC D. HARGAN, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

ORDER For the reasons set forth in the accompanying Memorandum Opinion, the court hereby GRANTS Plaintiffs’ Motion for Class Certification (ECF No. 18) and Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 5) as to the class. The relevant class is defined as all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government. It is hereby ORDERED that Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are:
(1) Enjoined from interfering with or obstructing any class member’s access to: (1) a judicial bypass, (2) medical appointments related to pregnancy dating, (3) non-directive options counseling, (4) abortion counseling, (5) an abortion, or (6) other pregnancyrelated care;

1

Case 1:17-cv-02122-TSC Document 127 Filed 03/30/18 Page 2 of 2 (2) Enjoined from forcing any class member to reveal the fact of their pregnancies and
their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion; (3) Enjoined from retaliating against any class member based on her decision to have an abortion; (4) Enjoined from retaliating or threatening to retaliate against contractors that operate the shelters where class members currently reside for any actions that those contractors or shelters have taken or may take in facilitating class members’ ability to access pregnancy and abortion-related medical care and/or an abortion. Date: March 30, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
2

No. 18- 5093

UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad )

litem to unaccompanied minor JANE )

DOE, on behalf of herself and others )

similarly situated; JANE ROE and

)

on behalf of herself and others

)

similarly situated; and JANE POE

)

and JANE MOE,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

CERTIFICATE OF PARTIES Appellees/Plaintiffs & Counsel American Civil Liberties Union Foundation: Counsel for Appellees/Plaintiffs Doe, Jane: Appellee/Plaintiff Garza, Rochelle: Appellee/Plaintiff/Guardian ad litem to Appellee/Plaintiff Jane Doe Mach, Daniel: Counsel for Appellees/Plaintiffs Michelman, Scott: Counsel for Appellees/Plaintiffs Moe, Jane: Poe, Jane: Appellee/Plaintiff Phillips, Carter G.: Counsel for Appellees/Plaintiffs Roe, Jane: Appellee/Plaintiff Spitzer, Arthur B.: Counsel for Appellees/Plaintiffs
1

Appellants/Defendants & Counsel Azar II, Alex M: Appellant/Defendant (HHS Secretary) Cook, Caroline, A.: Counsel for Appellants/Defendants Consovoy, William S.: Counsel for Appellants/Defendants Darrow, Joseph A.: Counsel for Appellants/Defendants Dorsey, Catherine: Counsel for Appellants/Defendants Fabian, Sarah B.: Counsel for Appellants/Defendants Flentje, August H.: Counsel for Appellants/Defendants Francisco, Noel: Counsel for Appellants/Defendants (U.S. Solicitor General) Greer, Christina P.: Counsel for Appellants/Defendants Haas, Alexander K.: Counsel for Appellants/Defendants Hargan, Eric: Appellant/Defendant* (former Acting HHS Secretary) Heyse, Michael C.: Counsel for Appellants/Defendants Leo, Sabatino F.: Counsel for Appellants/Defendants Lloyd, Scott: Appellant/Defendant Molina, Ernesto H.: Counsel for Appellants/Defendants Mooppan, Hashmi: Counsel for Appellants/Defendants Park, Michael H.: Counsel for Appellants/Defendants Readler, Chad A.: Counsel for Appellants/Defendants (Acting Ass’t U.S. Atty. Gen) Shieh, Daniel W.: Counsel for Appellants/Defendants Stewart, Scott G.: Counsel for Appellants/Defendants Strawbridge, Patrick N.: Counsel for Appellants/Defendants Wagner, Stephen: Appellant/Defendant
2

Amici & Counsel Bevin, Matthew G.: Amici (Governor of Kentucky) Commonwealth of Kentucky: Amici Keller, Scott A.: Counsel for Amici Arkansas, Gov. Bevin, Kentucky, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas, & West Virginia Schlafly, Andrew L: Counsel for Amici, Legal Center for Defense of Life State of Arkansas: Amici State of Louisiana: Amici State of Michigan: Amici State of Missouri: Amici State of Nebraska: Amici State of Ohio: Amici State of Oklahoma: Amici State of South Carolina: Amici State of Texas: Amici State of West Virginia: Amici

DATED: April 9, 2018

/s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney
Counsel for Appellants/Defendants

3

CERTIFICATE OF SERVICE I hereby certify that on April 9, 2018, I caused a copy of the foregoing Defendants’ Stay Motion to be filed with the Clerk of the Court using the Court’s CM/ECF system. Counsel for Plaintiffs are registered CM/ECF users, and will be served exclusively through that system.
/s/ Michael C. Heyse MICHAEL C. HEYSE Trial Attorney

 
 Case 1:17-cv-02122-TSC Document 137 Filed 04/25/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

ORDER ON MOTION FOR STAY PENDING APPEAL Defendants seek a stay pending appeal of this court’s March 30, 2018 Order granting Plaintiffs’ motions for class certification and a preliminary injunction. Mot. Stay Prelim. Inj., ECF No. 128. Plaintiffs oppose such a stay. Opp’n. to Mot., ECF No. 130. Having reviewed the pertinent filings and considered the arguments, the court concludes that a stay pending appeal is not warranted. Defendants’ motion is therefore DENIED. In ruling on a motion for a stay pending appeal, this court considers the same four factors it weighs in determining whether to issue a preliminary injunction: “(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985); see also Friends of Capital Crescent Trail v. Fed. Transit Admin., 263 F. Supp. 3d 144, 147 (D.D.C. 2017). The party seeking the stay carries the burden of justifying its issuance. Friends of Capital Crescent Trail, 263 F. Supp. 3d at

1

Case 1:17-cv-02122-TSC Document 137 Filed 04/25/18 Page 2 of 4
148. For the following reasons, the court concludes that Defendants have not carried their burden to establish that these requirements are satisfied. A. Defendants Have Not Demonstrated a Likelihood of Success on Appeal.
Defendants argue that they are likely to prevail on the merits of their appeal because (1) class certification was unwarranted, (2) the court’s preliminary injunction grants relief that Plaintiffs did not request, and (3) the court’s injunction requires the government to “facilitate” abortion procedures. The court finds none of these arguments persuasive.
1. Class Certification Defendants argue that class certification was unwarranted because the Named Plaintiffs do
not adequately represent the class. Mot. 3–5. This argument appears to repeat Defendants’ earlier arguments regarding mootness and the representative adequacy of Named Plaintiffs that Defendants previously advanced in their opposition to class certification. For the reasons this court has already stated in its Memorandum Opinion, the court finds Defendants’ arguments unavailing. Accordingly, Defendants’ argument against class certification does not establish a likelihood of success on the merits of their appeal.1
2. Relief Not Requested Defendants argue that since Plaintiffs did not allege that ORR’s parental notification policy
violated the Fifth Amendment, the court likely erred in enjoining the policy on that basis. Mot. 5 –6. But Defendants’ assertion is premised on an inaccurate characterization of Plaintiffs’ claims. Plaintiffs specifically alleged a Fifth Amendment challenge to Defendants’ forced disclosure
1 The court also notes that Defendants have not addressed the threshold requirements for interlocutory review of a class certification order under Fed. R. Civ. P. 23(f). See In re Brewer, 863 F.3d 861, 874 (D.C. Cir. 2017) (citing In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 99–100 (D.C. Cir. 2002)).
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Case 1:17-cv-02122-TSC Document 137 Filed 04/25/18 Page 3 of 4
policies, and sought a preliminary injunction of those policies. Pls. Mem. Supp. Prelim. Inj., ECF No. 5-1 at 11–12. The court’s Order merely grants the relief that Plaintiffs requested. Accordingly, Defendants’ argument regarding the basis of relief does not demonstrate a likelihood of success on the merits of their appeal.
3. Facilitation Defendants argue that the court likely erred insofar as its preliminary injunction requires
Defendants to “facilitate” abortion. Mot. 8–9. Again, Defendants’ contention does not appear to present any new argument or issues. The court’s Memorandum Opinion explicitly discussed Defendants’ facilitation argument, and for the reasons stated in that Opinion, the court does not find that the argument demonstrates a likelihood of success on the merits of their appeal. B. Defendants Have Not Demonstrated Irreparable Harm, a Favorable Balance of the
Equities, or that the Public Interest Favors a Stay. Defendants contend that absent a stay, they will suffer irreparable harm resulting from
“interference with ORR’s ability to carry out its statutory and custodial responsibilities.” Mot. 11, 6–7. The court disagrees. Although the Court’s March 30 Order limited ORR’s ability to disclose certain medical information to emergency care providers, the court has already amended its injunction to permit such disclosure and to address Defendants’ concern that it would be precluded from disclosing medical information even if the minor consents. See Amended Class Certification and Preliminary Injunction Order, ECF No. 136. The court does not agree that those aspects of the preliminary injunction that remain unaltered prevent ORR from executing its statutory and/or custodial responsibilities in any other respect, and it therefore finds no outstanding issue that would support Defendants’ claim of irreparable harm. The court is also unaware of any legitimate government interest that will be harmed without a stay, and thus concludes that the balance of
3

Case 1:17-cv-02122-TSC Document 137 Filed 04/25/18 Page 4 of 4

equities does not tip in Defendants’ favor. Similarly, the court concludes that the public interest— which generally benefits from government policy and procedure that complies with the Constitution—does not favor a stay in this scenario. See Ass’n of Cmty. Organizations for Reform Now (ACORN) v. Fed. Emergency Mgmt. Agency (FEMA), 463 F. Supp. 2d 26, 36 (D.D.C. 2006) (citing O’Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992)).
CONCLUSION For the reasons stated, Defendants’ Motion for Stay of the Preliminary Injunction is DENIED.

Date: April 25, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

4

 
 [NOT YET SCHEDULED FOR ORAL ARGUMENT]
No. 18-5093, 18-8003 __________________________________
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________________________________
ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, et al., Plaintiffs-Appellees,
v.
ALEX M. AZAR II, Secretary of Health and Human Services, et al., Defendants-Appellants.
__________________________________
On Appeal from the United States District Court for the District of Columbia No. 17-cv-02122-TSC
__________________________________
PLAINTIFFS–APPELLEES’ OPPOSITION TO APPELLANTS’ MOTION FOR A STAY PENDING APPEAL
_________________________________________________
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org sknizhnik@acludc.org

Brigitte Amiri Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 mwroe@rshc-law.com
Counsel for Plaintiffs-Appellees

INTRODUCTION Defendants have inflicted enough harm on the young women in their custody, and should not be permitted to enforce their unlawful policy while they appeal the District Court’s properly-entered preliminary injunction and class certification. For the past year, Defendants have developed and implemented a policy that denies pregnant unaccompanied minors access to unbiased information about their pregnancy options; coerces them to carry their pregnancies to term; and blocks them from going to any abortionrelated appointments. The named Plaintiffs, and numerous unidentified members of the class, were subjected to Defendants’ policy. The minors in Defendants’ care are isolated, and often unaware of their right to obtain an abortion. Plaintiffs’ counsel only learned of some of the named Plaintiffs from anonymous tips, and only learned about other minors whose abortion requests were denied by ORR months later through discovery in another case against ORR. When the named Plaintiffs found their way to Plaintiffs’ counsel after being significantly delayed by Defendants’ obstruction tactics, Plaintiffs’ counsel sought immediate injunctive relief on their behalf, which the Court granted as to three named Plaintiffs within a matter of days (Defendants released the fourth named Plaintiff before the District Court could rule on the TRO).

Because Defendants are unlikely to succeed on the merits of their appeal and will experience no harm from the preliminary injunction, this Court should deny the stay. Moreover, granting a stay will cause minors irreparable harm: they will be subjected to Defendants’ coercion, and Defendants will prevent them from obtaining abortion care. Denying the stay will serve the public interest by protecting the constitutional rights and health of pregnant unaccompanied minors. Defendants’ motion for a stay should therefore be denied.
FACTUAL AND PROCEDURAL BACKGROUND Unaccompanied immigrant minors (or “unaccompanied children” or “UCs”) come to the United States without their parents, often fleeing violence or abuse. After their initial apprehension, Defendant Office of Refugee Resettlement (“ORR”) bears responsibility for their “care and custody.” 8 U.S.C. § 1232(b)(1). The federal government and all of its programs are required to ensure that the best interests of UCs are protected. See 6 U.S.C. § 279(b)(1)(B); 8 U.S.C. § 1232(c)(2)(A). Protecting UCs’ best interests includes ensuring access to health care, including reproductive health care. Indeed, under a nationwide consent decree, the federal government is obligated to provide or arrange for, among other things, “appropriate routine medical . . . care,” including specifically
2

“family planning services[] and emergency health care services.”1 Additionally, an ORR regulation requires all ORR-funded shelters to, among other things, provide UCs who are victims of sexual assault while in federal custody with access to reproductive healthcare. See 45 C.F.R. § 411.93(d). UCs have an acute need for such care, in part because many are victims of sexual assault, immediately before, during, or after their journeys to the United States. Third Amended Complaint (ECF No. 118-1) ¶ 59; Amnesty International, Invisible Victims, at 15 (April 2010).2
Nevertheless, pursuant to Defendants’ policy, when a minor requests information about and/or access to abortion, Defendants employ coercive tactics, including forcing the minor to tell her parents of her pregnancy and abortion decision, even in cases where it would endanger the minor or others. See, e.g., ECF No. 121-3; ECF No. 92-1; ECF No. 56-10. As Jonathan White, former Deputy Director of ORR, testified, this policy of forced notification puts minors at risk of harm. ECF No. 121-5 at 42:3-43:1.
1 See Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997), Exhibit 1, “Minimum Standards for Licensed Programs”, at 15, available at https://cliniclegal.org/sites/default/files/attachments/flores_v._reno_settleme nt_agreement_1.pdf. 2 Available at https://fusiondotnet.files.wordpress.com/2014/09/amr410142010eng.pdf.
3

Defendants also require minors who indicate that they are considering abortion to receive “life-affirming” counseling from religiously affiliated anti-abortion crisis pregnancy centers on Defendants’ list of “approved providers” – a list that was commissioned by Director Lloyd and created with the assistance of two national networks of anti-abortion crisis pregnancy centers. See, e.g., ECF No. 121-3; ECF No. 121-16; ECF No. 121-15 at 161:6-162:10.
When a minor manages to withstand Defendants’ coercion, Defendants block her from accessing abortion. Defendant Lloyd has made clear that, under ORR’s policy, shelters “are not to take [minors] to get a termination, or to any appointments to prepare [them] for a termination, without consent from the Director, which cannot happen without written and notarized consent of her parents, and will not necessarily follow.” ECF No. 121-3. Defendant Lloyd has admitted he has not approved any abortion, even when the young woman was pregnant as a result of a rape and was suicidal. See id., ECF No. 121-15 at 64:19-21; 65:6-22.
After four young women who were subjected to Defendants’ policy of coercion and obstruction sought TROs – three were granted, and Defendants released the other before the lower court could rule – the District Court
4

certified a class of all pregnant minors in Defendants’ legal custody and preliminarily enjoined Defendants’ policy.
ARGUMENT Defendants cannot carry their “heavy burden” of justifying a stay of the District Court’s Order. Williams v. Zbaraz, 442 U.S. 1309, 1311-12 (1979). “A stay is not a matter of right” but rather is an “exercise of judicial discretion.” Nken v. Holder, 556 U.S. 418, 433 (2009) (internal quotations and citations omitted). Courts assess four factors: (1) whether the moving party “has made a strong showing that [it] is likely to succeed on the merits”; (2) whether it “will be irreparably injured absent a stay”; (3) whether a stay “will substantially injure the other parties interested in the proceeding”; and (4) “where the public interest lies.” Id. at 425-26, 434. The first two factors are the most critical. Id. at 434. Here, all factors militate against granting a stay. I. The Government Has Not Made a Strong Showing of Success on the Merits. A. Defendants Are Unlikely to Succeed on Their Appeal of
the Court’s Class Certification Order.3
3 Plaintiffs agree that class certification is “bound up” with the preliminary injunction, although they disagree that certification under Rule 23(f) is appropriate given that the District Court’s decision is not “manifestly erroneous.” In re Brewer, 863 F.3d 861, 875 (D.C. Cir. 2017).
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1. Defendants Have Not Shown that Their Mootness Arguments Will Prevail on Appeal.
Defendants argue that class certification was improper because Plaintiffs’ class representatives’ claims are moot. As a threshold matter, that argument ignores all but one of Plaintiffs’ claims: the right to access abortion while in ORR custody. Gov’t Mot. at 6. Defendants cannot dispute that at the time the class was certified representatives Ms. Doe and Ms. Roe had live claims, such as their informational privacy claim.4
In any event, the District Court properly found that the class claim for abortion access falls under the “inherently transitory” exception to mootness. The Supreme Court has repeatedly recognized that there are “cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion.” Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); accord U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980); Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11 (1975). “In such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) (quotation marks omitted).
4 The District Court’s amended order (ECF No. 136) recognizes that Ms. Moe and Ms. Poe are not class representatives.
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The District Court properly focused on two features of Plaintiffs’ claims. First, the claims are from “unaccompanied minors in ORR custody, a transitory population” whose members remain in custody for a period that is “uncertain and unpredictable.” Mem. Opinion at 18 (“Opinion”), ECF No. 126. Second, the claims seeking access to abortion are “necessarily time limited” such that “there may be circumstances in which a court is required to rule on emergency requests for injunctive relief in a shorter timeframe than it could feasibly rule on a class certification motion.” Id. at 19.
Defendants’ authorities do not demonstrate otherwise. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013), concerned conditional certification of a “collective action” under the Fair Labor Standards Act and therefore is inapplicable in “Rule 23-land,” DL v. District of Columbia, 860 F.3d 713, 722 (D.C. Cir. 2017). Further, Defendants mischaracterize Genesis Healthcare as stating that a class action can proceed after the plaintiffs’ claims become moot “only when” mootness occurs “‘after the class has been duly certified.’” Gov’t Mot. at 6-7. The quoted statement merely describes the facts of Sosna, but the Court did not limit the universe of mootness exceptions to the situation presented in Sosna; the word “only” is Defendants’ addition. Indeed, the “inherently transitory” exception to mootness that the District Court applied is a separate doctrine from Sosna
7

that operates independently and does not apply “only when” mootness postdates certification. See, e.g., Cty. of Riverside, 500 U.S. at 52 (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.”). Defendants’ reliance on Kremens v. Bartley, 431 U.S. 119 (1977), is likewise misplaced: Kremens did not even mention the “inherently transitory” rule.
Defendants also argue that the “inherently transitory” doctrine cannot apply because class certification was “pending for months.” Gov’t Mot. at 7. But “transitoriness” is measured by how long the merits are pending, not the motion for class certification. See, e.g., Cty. of Riverside, 500 U.S. at 52. Here, the District Court was unable to certify a class in the short time period in which the individual Plaintiffs sought access abortion. See ECF Nos. 5, 20; ECF Nos. 63, 73; ECF Nos. 105, 114 (Plaintiffs’ TROs were pending for 7 days or less). These short time periods fall comfortably within the range of cases applying the “inherently transitory” exception. See Thorpe v. District of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C. 2013) (claims that would be live for a “length . . . impossible to predict”); R.I.L-R. v. Johnson, 80 F. Supp. 3d 164, 183 (D.D.C. 2015) (claims that would be live for “weeks or months”); DL v. District of Columbia, 302 F.R.D. 1, 20 (D.D.C.
8

2013) (claims live for up to two years), aff’d on other grounds, 860 F.3d 713 (D.C. Cir. 2017).
Defendants also argue that the “inherently transitory” exception cannot apply where claims become moot by court-ordered relief rather than “statutory deadlines or time limits that passed of their own accord.” Gov’t Mot. at 7. However, neither this Court nor the Supreme Court has ever imposed such a limitation. Defendants point to Genesis Healthcare, 596 U.S. at 77, but that case speaks in terms of litigation having “run its course” without the slightest hint that the reason for that condition matters. Were Defendants’ novel distinction valid, it would “punish Plaintiffs for seeking relief in response to urgent needs.” Opinion at 19. Defendants’ argument finds support in neither precedent nor logic.
2. The District Court Properly Held That Plaintiffs Satisfy the Commonality and Typicality Requirements of Rule 23(a).
The District Court, following well-settled law, correctly held that Plaintiffs meet the commonality and typicality requirements.5 ECF No. 126 at 11-15. Indeed, those factors are easily met where, as here, there is a uniform policy or practice that affects all class members. DL, 713 F.3d at
5 Defendants do not dispute that Plaintiffs meet the numerosity requirement of Rule 23(a), given that “ORR has approximately 30 pregnant UACs enter its care and custody on a monthly basis.” Gov’t Mot., Ex. A, ¶ 12.
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(D.C. Cir. 2013); see also Wal-Mart Stores v. Dukes, 564 U.S. 338, 353 (2011).
Defendants have a uniform policy of ensuring that UCs continue their pregnancies while in government custody. See supra at 5-6. As part of this policy, Defendants employ a common set of coercive tactics – including forced visits to crisis pregnancy centers and mandatory parental notification – to steer pregnant UCs away from abortion, and, if those tactics fail, they block access to any abortion-related care. Id. All pregnant minors in ORR custody are subject to this policy, regardless of what pregnancy outcome they may ultimately choose. Class members also suffer “common harms, susceptible to common proof, and curable by a single injunction.” DL, 860 F.3d at 724 (internal citations omitted). Moreover, the class representatives’ and other class members’ claims “are based on the same legal theory.” Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 40 (D.D.C. 2017).
Defendants do not seriously dispute that Plaintiffs challenge a uniform policy. Instead, they point to irrelevant potential factual differences between class members (such as their age, length of pregnancy, state of residence, and whether ORR can release them from custody). Gov’t Mot. at 13-14. None of those facts has any bearing on the central common question in this
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case: whether Defendant’s uniform anti-abortion policy is constitutional. Even if factual distinctions had some bearing on this case – which they do not – commonality and typicality are not destroyed merely by factual variations. See Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987); see also DL, 860 F.3d at 725-26; R.I.L-R., 80 F. Supp. 3d at 181-82.
Defendants also incorrectly claim that Jennings v. Rodriguez, 138 S. Ct. 830 (2018), announced a general rule disfavoring class actions in due process cases. Gov’t Mot. at 14. In fact, the Court merely remanded the case for further consideration of class status given the specific facts and claims in that case, noting that what process is due is often flexible and factbased. Jennings, 138 S. Ct. at 852. Additionally, that case involved procedural due process, rather than (as here) substantive due process.
That many pregnant UCs decide to carry to term, Gov’t Mot. at 15, is irrelevant and does not make Doe or Roe’s claims atypical. Defendants’ policy affects all pregnant UCs by steering their pregnancy decisions in coercive ways, denying them unbiased information, disclosing their decisions to third parties, and ultimately taking the power to determine the
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outcomes of their pregnancies out of their hands and placing it, unconstitutionally, into the hands of Defendant Lloyd.6
3. The District Court Properly Found the Class Representatives Are Adequate.
The District Court likewise properly exercised its discretion in finding
the class representatives adequate, as they “have no conflicts of interest with
the class and are capable of vigorously prosecuting class interests.” Opinion
at 19-20 (citing Twelve John Does v. District of Columbia, 117 F.3d 571,
575-76 (D.C. Cir. 1997)). The government contests this finding by raising
speculative and unsupported concerns about the “vigorousness” with which
Ms. Doe and Ms. Roe will represent the class, and by positing that “changed
minds” and/or divergent “positions on abortion” between the representatives
and some class members will somehow create conflicts of interest. Gov’t
Mot. at 8-12. Neither contention is valid.
6 The government outrageously suggests that the minor’s factual circumstances are important given the so-called “agenda” of the class representatives, implying that they and their lawyers seek to push UCs to terminate their pregnancies. Gov’t Mot. at 14. In fact, the class representatives and counsel seek to ensure that every pregnant minor in ORR custody can exercise her constitutional right to decide for herself, free from coercion, whether to become a parent. Similarly, the government’s inappropriate and offensive personal attack on Ms. Garza is irrelevant for many reasons. As the government was forced to acknowledge, the Texas Attorney General’s baseless inquiry into Ms. Garza’s conduct has been closed with no finding of wrongdoing.
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As this Court has recognized, “plaintiffs with moot claims may adequately represent a class.” DL, 860 F.3d at 726 (citing Geraghty, 445 U.S. at 407). Defendants’ authorities, Hall v. Beals, 396 U.S. 45 (1969), Long v. Dist. of Columbia, 469 F.2d 927 (D.C. Cir. 1972), and Spriggs v. Wilson, 467 F.2d 382 (D.C. Cir. 1972), are distinguishable and long out of date. None discussed whether the claims were “inherently transitory”; in fact, they all predate the Supreme Court’s articulation in Sosna of the “inherently transitory” rule. Two of the cases involved claims in which the challenged government policy or practice no longer existed, Hall, 396 U.S. at 48-50, or never applied to the named plaintiff to begin with, Long, 469 F.2d at 929-30.
Defendants also complain that the class representatives were only “briefly involved with this case,” and that their declarations lack explicit statements that they will vigorously pursue class claims. Gov’t Mot. at 9. But the length of involvement cannot be the measure of class representatives’ commitment; if it were, no representatives would ever be appropriate in cases involving “inherently transitory” claims. And neither this Court nor the Supreme Court has ever required a specific length of involvement or a particular set of magic words to establish that a proposed class representative will vigorously pursue the class’s interests. Rather, both
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this Court in DL and the Supreme Court in Sosna focused on the demonstrated commitment of the named plaintiffs through the course of litigation, and the lack of apparent conflicting interests. See Sosna, 419 U.S. at 403; DL, 860 F.3d at 726. Moreover, contrary to the government’s assertion that Ms. Doe and Ms. Roe “spoke only of their own immediate interests in obtaining abortions,” each declared their desire to be a class representative for similarly situated individuals. See ECF Nos. 5-2, 63-2, 105-2.
Furthermore, the government’s factually disputed claim about Ms. Roe’s age is irrelevant. She was harmed by the government’s abortion-ban, just like the class members she represents.
Nor do the class representatives have conflicts of interest with class members who “do not want an abortion, may strongly oppose abortions, and [] support ORR’s challenged conduct here.” Gov’t Mot. at 11. UCs who choose not to exercise their right to an abortion are not harmed in any way by being class members; thus, there is no conflict between their decisions and the class members. To the contrary, the government is enjoined from “interfering with or obstructing any class member’s access to” all “pregnancy-related care,” not merely abortion. Dist. Ct. Order, ECF No. 127 (“Order”), at 1.
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B. Defendants Have Not Made a Strong Showing That They Will Succeed on Their Appeal of the Preliminary Injunction. 1. Defendants Are Unlikely to Succeed on Appeal of the Order Blocking Them From Obstructing or Interfering With Abortion Access. Defendants’ argument that they are entitled to ban abortion for UCs is,
as the District Court recognized, flatly wrong under well-established and recent Supreme Court precedent. See Opinion at 23 (citing, e.g., Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), and Planned Parenthood v. Casey, 505 U.S. 833 (1992)). If the government were allowed to block UCs’ access to abortion it could do the same for others in government custody – a position that has already been rejected. See, e.g., Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). Indeed, Defendants cannot square their extreme policy for UCs with other governmental policies for adult women in ICE detention and the Bureau of Prisons. See ICE Guidelines, Detention Standard 4.4, Medical Care, available at https://www.ice.gov/doclib/detentionstandards/2011/medical_care_women.pdf.; 28 C.F.R. § 551.23(c).
Defendants make three arguments against the injunction. First, Defendants argue, without citation, that “to sustain the injunction, this Court must agree that the ORR policies and procedures constitute an undue burden
15

in every possible circumstance.” Gov’t Mot. at 18. That is incorrect: abortion restrictions must be invalidated if they impose an undue burden for a large fraction of the women for whom the provision at issue is “‘an actual rather than an irrelevant restriction.’” Whole Woman’s Health v, 136 S. Ct. at 2320 (quoting Casey, 505 U.S. at 895). Plaintiffs easily meet that standard here given that Defendants impose a ban on abortion for all unaccompanied minors.
Second, they claim that they are not imposing an undue burden on a UC’s right to abortion because she could obtain an abortion after she is united with a sponsor. Gov’t Mot. at 18-21. But the District Court found, based on undisputed evidence, that the minor controls neither the approval of a sponsor nor the timing of the sponsorship process, which, assuming she has a viable sponsor at all, can take weeks or months. Opinion at 27; see also Decl. of Robert Carey, ECF No. 23-1, ¶ 6. Simply because Plaintiff Moe was quickly reunified with her family, Gov’t Mot. at 19-20, does not mean that Defendants’ policy didn’t impose an undue burden on her access to abortion. To the contrary, her abortion request languished at ORR for two weeks – while she was pushed further into her pregnancy – until she found counsel and sought a TRO. Ms. Moe’s TRO filing prompted Defendants to speed up the reunification with her family member. If she had not found
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counsel, her abortion request would have languished longer, and she would have been unnecessarily pushed further into her pregnancy.
Third, Defendants argue that a minor could voluntarily depart. But as the District Court held, Opinion at 26, the Constitution does not permit the government to penalize a minor for seeking to exercise her right to an abortion by forcing her to return to her home country or to sacrifice her opportunity to be reunited with family here or seek asylum. Moreover, these minors are often fleeing horrific circumstances in their home countries, as the named Plaintiffs’ stories demonstrate. See Opinion at 26. And voluntary departure can take months and requires the discretionary decision of an immigration judge. See Proposed Third Amended Complaint ¶ 58 (ECF No. 118-1).
To justify the time it takes for reunifications, Defendants rely on Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990). But the fact that a state’s judicial bypass process may take a certain number of days does not give Defendants carte blanche to independently obstruct a minor’s access to abortion for the same number of days – with the intent to deny her abortion access entirely. In any event, the Supreme Court has more recently made clear that a government-imposed delay of a length similar to the examples Defendants cite is unconstitutional. See Whole Woman’s Health,
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136 S. Ct. at 2318 (2016) (striking down abortion restriction that resulted in three-week wait time for appointments).
Defendants’ final point that the District Court did not consider other miscellaneous “highly relevant” factors, Gov’t Mot. at 21, is merely a rehash of their attack on class certification by pointing out irrelevant factual variations that could exist among class members. Defendants never explain why these factors are relevant to the merits nor explain how the injunction requires a minor to be allowed to access an “abortion [that] would violate state law.”
2. Defendants Are Not Likely to Succeed on Appeal of the Prohibition On Revealing a Minor’s Abortion Decision.
Defendants are unlikely to succeed in reversing the District Court’s order preliminarily enjoining them “from forcing any class member[s] to reveal the fact of their pregnancies and/or their abortion decisions to anyone, and from revealing that fact or those decisions to anyone themselves.”7 ECF No. 136. Contrary to Defendants’ assertion, Gov’t Mot. at 16, Plaintiffs do not claim that Defendants violate the First Amendment prohibition on
7 The District Court’s amended order makes clear Defendants may communicate to third parties with the minor’s non-coerced permission and in the event of a medical emergency in which the minor is unable to communicate this information to a medical provider herself. ECF No. 136.
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compelled speech by forcing minors to tell their parents of their abortion decision. Rather, Plaintiffs made the following claims:
First, that Defendants’ policy violates minors’ Fifth Amendment right to keep their abortion decisions confidential from their parents. ECF No. 104 at ¶ 71 (First Claim for Relief). The Supreme Court has held that, although a state can require parental involvement for minors seeking abortions, such a requirement must also have an avenue for minors to “bypass” parental involvement. Bellotti v. Baird, 443 U.S 622, 647 (1979). As one court put it, if Bellotti means anything, “it surely means that States seeking to regulate minors’ access to abortion must offer a credible bypass procedure, independent of parents or legal guardians.” Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th Cir. 1997), overruled on other grounds by Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001).
Second, that Defendants violate Plaintiffs’ right to informational privacy by telling parents, sponsors, crisis pregnancy centers, and others, about minors’ pregnancy and/or abortion decisions. ECF No. 104 at ¶ 73 (Third Claim For Relief). People have a right to privacy “in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977). This privacy interest is heightened here, where the “personal matter” at issue – the decision to have an abortion – is highly sensitive, intimate and
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emotionally charged. See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 766 (1986), overruled on other grounds by Casey, 505 U.S. at 882.
Third, that Defendants violate minors’ right to compelled speech by forcing them to discuss their pregnancies anti-abortion crisis pregnancy centers. ECF No. 104 at ¶ 72 (Second Claim For Relief). The First Amendment protects “the right to refrain from speaking.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). The only other court that has considered a similar issue has held the government violates the First Amendment by forcing people seeking abortion to visit an anti-abortion pregnancy center to discuss their abortion. See Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Daugaard, 799 F. Supp. 2d 1048, 105458 (D.S.D. 2011).
The facts here confirm the harms inherent when the government forcibly reveals a person’s abortion decision to others. Defendants required Plaintiff Poe to disclose her abortion decision to her parents, who threatened to beat her if she had an abortion. ECF No. 96 at 4. They then sought to tell Ms. Poe’s sponsor knowing that it would cause Ms. Poe harm. Id. If Defendants want to ensure that a sponsor will not retaliate against a minor
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because she has had an abortion, Gov’t Mot. at 17-18, the solution is simple: Defendants should not tell the sponsor that the minor has had an abortion.8
Defendants’ argument that they must be able to tell a minor’s medical provider, Gov’t Mot. at 17, is equally unavailing. If a minor’s abortion is relevant to her health history, she can convey that information to her health care providers, just as any other teenager could do in the confines of a confidential patient-provider relationship.
II. The Balance of Harms Favors the Plaintiffs and the Injunction Serves the Public Interest.
The District Court correctly held that Plaintiffs will suffer irreparable harm absent an injunction. Class members seeking abortions will be prevented from obtaining them, class members seeking unbiased information about abortion and about their legal options will be prevented from obtaining that, class members seeking to keep their abortion decisions confidential from parents or sponsors will be prevented from doing so. The undisputed facts irrefutably support these conclusions.
8 Ms. Poe resided in a state where minors can consent to abortion without parental involvement. Accordingly, Defendants’ alleged position – articulated for the first time in their motion for a stay in the District Court – that they do not tell a minor’s parents or sponsor of her abortion decision if it is contrary to law or would cause harm to the minor, Gov’t Mot. at 16-17, flies in the face of the evidence.
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On the other hand, “Defendants have not shown any legitimate interest that will be harmed by the issuance of a preliminary injunction.” Opinion at 27. This is true because Defendants’ interest in preventing UCs from effectuating their constitutional rights is simply not legitimate. Defendants’ mischaracterization of their interest as not “facilitating” abortion is wordplay, belied by the facts.
A stay would not serve the public interest. Allowing the government to violate basic, well-established constitutional rights harms the public interest. See, e.g., Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). Defendants’ claim that permitting young women to exercise their right to have an abortion will harm the public interest by “incentivizing” others to leave their home countries and come to the United States to seek an abortion is preposterous. There is no evidence that minors make the perilous trek to the United States for the purpose of having abortions. As Defendants themselves have explained, UCs “leave their home countries to join family already in the United States, escape abuse, persecution or exploitation in the home country, or to seek employment or educational opportunities in the United States.”9
9 Administration for Children and Families Factsheet, available at https://www.acf.hhs.gov/sites/default/files/orr/orr_uc_updated_fact_sheet_1 416.pdf.
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CONCLUSION For the foregoing reasons, Defendants’ motion for a stay should be denied.

April 19, 2018

Respectfully submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org sknizhnik@acludc.org
/s/Brigitte Amiri Brigitte Amiri Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation
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915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 mwroe@rshc-law.com
Counsel for Plaintiffs-Appellees
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CERTIFICATE AS TO THE PARTIES AND AMICI Pursuant to this Court’s Circuit Rule 28(a)(1)(A), counsel for Plaintiffs-Appellees hereby adopts Appellants’ Certificate of Parties and Amici Curiae. The ruling under review in this case is the March 30, 2018 Order entered by Judge Tanya S. Chutkan, reported at ECF No. 127, which certified a class and granted Plaintiffs’ motion for a class-wide injunctive relief.

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g)(1), the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(f) and Circuit Rule 32, this brief includes 4, 759 words. 2. This brief has been prepared in proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(g)(1), the undersigned has relied upon the word count of this word processing system in preparing this certificate.

April 19, 2018

/s Brigitte Amiri Brigitte Amiri

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of April, 2018, the foregoing Opposition to Appellants’ Motion for a Stay was electronically filed with the Clerk of the Court by using the appellate CM/ECF system. Service will be made on opposing counsel who are CM/ECF users automatically through the CM/ECF system.
/s Brigitte Amiri Brigitte Amiri

 
 USCA Case #18-5093 Document #1728328

Filed: 04/26/2018 Page 1 of 15

[NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 18-5093, 18-8003

UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad )

litem to unaccompanied minor JANE )

DOE, on behalf of herself and others )

similarly situated; JANE ROE and

)

on behalf of herself and others

)

similarly situated; and JANE POE

)

and JANE MOE,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

DEFENDANTS’ REPLY IN SUPPORT OF STAY PENDING APPEAL

CHAD A. READLER Acting Assistant Attorney General Civil Division
HASHIM MOOPPAN Deputy Assistant Attorney General Civil Division
AUGUST E. FLENTJE Special Counsel

W. DANIEL SHIEH SABATINO F. LEO MICHAEL C. HEYSE CHRISTINA P. GREER Trial Attorneys Office of Immigration Litigation Civil Division U.S. Department of Justice PO Box 878, Ben Franklin Station Washington, DC 20044

ERNESTO H. MOLINA Deputy Director

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INTRODUCTION A stay is warranted. As an initial matter, mootness bars certification of a class in an action brought by two plaintiffs whose claims were resolved months before certification. Plaintiffs also fail to address fatal problems of adequacy, commonality, and typicality created by certification of a class comprised of all pregnant minors in ORR custody, the vast majority of whom do not want abortions. Second, by rejecting sponsorship and voluntary departure as viable alternatives to government facilitation of abortion – even when release will occur imminently or return is safe – the injunction is inconsistent with this Court’s stated view that the obligation to facilitate an abortion depends on the individual facts and circumstances. See Garza v. Hargan, 874 F.3d 735, 738-40 (D.C. Cir. 2017). The district court’s injunction, on the other hand, mandates the kind of “immediate abortion on demand” that Judge Kavanaugh warned is inconsistent with constitutional principles. Id. at 752 (dissent). Further, the injunction provided no justification for barring communications with parents or doctors absent consent from the child. The Constitution imposes no gag rule on ORR in performing its custodial functions and communicating with doctors or parents in the child’s best interests.

1

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Third, the orders have already harmed ORR’s ability to fulfill its custodial role. The order bans ORR from speaking to the parents of dozens of minors about their pregnancies absent the minor’s consent. And on April 13, 2018, with no opportunity for the government to weigh in, the district court indiscriminately ordered class notice about abortion to all minors in ORR-funded shelters, regardless of age, gender, or pregnancy status. ECF 135. This causes irreparable harm by forcing ORR to favor abortion over life. It also infringes on the conscientious objections of those grantees who do not want to communicate a proabortion message to minors, especially to minors who are very young or uninterested in abortion. Sualog Decl.2 ¶¶5-6.
ARGUMENT I. The Government Is Likely to Succeed in its Challenge to Class
Certification.1 A. Mootness The district court erred in certifying the class in this case because the only representatives – Ms. Doe and Ms. Roe – had already obtained court-ordered abortions, were adults, and were out of ORR custody months before the court certified a class of pregnant minors in ORR custody with only those two class representatives. In their opposition, plaintiffs assert that “at the time the class was

1 Plaintiffs “agree that class certification is ‘bound up’ with the preliminary injunction.” Opp. 5.
2

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certified” Doe and Roe in fact “had live claims, such as their informational privacy claim.” Opp. 6. But Doe and Roe were adults – and thus out of ORR custody – by the time the district court certified the class, so even their informational privacy claim was moot. Plaintiffs do not allege that ORR violates the informational privacy of adults released from its custody. ECF 118-1, ¶94 (ORR requires “unaccompanied immigrant minors to disclose . . . their decisions to seek . . . abortion”). Nor do they provide evidence showing ORR has ever violated the privacy rights of adults who have left its care. Thus, all of Doe and Roe’s claims were moot when the district court granted class certification.
Additionally, as we explained in our stay motion, the district court nowhere provided a basis for imposing information restrictions on ORR. There is no basis for such an order, and a meritless claim cannot preserve jurisdiction to require class-wide abortion facilitation.
Plaintiffs argue that the “‘transitoriness’ exception to mootness applies, and is measured by how long the merits are pending, not the motion for class certification.” Opp. 8. That is not correct. The exception applies when claims “are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Gerstein v. Pugh, 420 U.S. 103, 110 (1975) (emphasis added).
3

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Here, plaintiffs filed their motion for class certification on October 18, 2017, and it remained pending through the merits consideration with respect to each of four plaintiffs seeking relief, which provided ample time to act. The court acted on three out of four of those plaintiffs’ claims prior to their claims becoming moot. Further, the transitory exception looks to whether a claim expires on its own terms, not to whether the claim is mooted out because full relief was granted by the court. See Sosna v. Iowa, 419 U.S. 393, 403 (1975). That is perfectly logical. A court that grants complete relief on the merits necessarily has adequate time to act on the class certification motion, and the cases that have considered the issue have involved mootness that arose for reasons other than a grant of relief on the merits. See, e.g., Sosna, 419 U.S. at 403 (statutory deadline); Gerstein, 420 U.S. at 110 n.11 (pretrial detention).
That does not suggest that ORR’s “policy” would be “effectively unreviewable, because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013).2 Were another plaintiff to come forward ample time would

2 Genesis Healthcare is a leading case addressing mootness in collective actions, and Plaintiffs are wrong to suggest that it is irrelevant in Rule 23 class actions. Opp. at 7. The case they cite for this point, DL, addresses the relation back doctrine – whereby mootness arises after a district court has acted on a class motion, not before such action. 860 F.3d at 722 (relation back applies “when a district court . . . erroneously certifies . . . while plaintiffs’ claims are live”).
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likely exist for the court to consider the merits and rule on certification before her pregnancy reached viability. Given that most states permit elective abortion for a substantial period, the claims here are not inherently transitory.3
B. Adequacy Plaintiffs do not contend with the district court’s failure to separately address the adequacy of Doe and Roe given that their claims are moot, they are adults (and Roe was always an adult), they only briefly had live claims, and they are not in ORR custody. They are not adequate representatives given that constellation of differences between their circumstances and the circumstances of the class they seek to represent. The district court’s fundamental flaw here was certifying a class of all pregnant minors in ORR custody. Most of that class do not want an abortion and have never requested an abortion, and all will now be represented by class counsel who seek the facilitation of a procedure they may strongly oppose. This is fatal to adequacy. In response, plaintiffs simply argue without support that minors “who choose not to exercise their right to an abortion are not harmed in any way by being class members; thus, there is no conflict between their decisions and the

3 And on Plaintiffs’ erroneous theory—whereby their facilitation claim remained live even after they obtained court relief so long as they remained in ORR custody—the case cannot plausibly qualify as sufficiently transitory.
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class members.” Opp. 14. But as Defendants previously argued, minors who want to give birth will want pregnancy-related care and support, not the abortionfocused remedy ordered by the court, or representation from class counsel. The injunction ensures that minors who want to continue their pregnancies will be put in the untenable position of defending their decision to avowed abortion advocates purporting to represent the minors’ interests.
The conduct of class representative Rochelle Garza in Doe v. ORR, 884 F.3d 269 (5th Cir. 2018), illustrates this point. Garza insisted on representing a pregnant minor in a judicial bypass proceeding in state court, even after the minor twice indicated in writing that she wanted neither an abortion nor representation by Garza. It took an appeal by ORR as the girl’s proper custodian—and an ex parte interview of the minor by the court—for the Garzas to relent. A process that requires a minor to involuntarily prove that she does not want an abortion cannot be reconciled with Casey. Plaintiffs have not shown why pregnant minors who wish to carry their babies to term can be adequately represented by counsel seeking to “extend abortion rights.” Id. at 275 (5th Cir. 2018) (Jones, concurring).
C. Commonality and Typicality Plaintiffs’ argument that commonality and typicality are met is unsupported by law and fact. Plaintiffs claim that “potential factual differences between class members” are “irrelevant.” Opp. 10. That is legally incorrect. Unless due process
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requires abortion facilitation “on demand” – which the Garza majority disavowed, 874 F.3d at 738 – the Garza ruling requires different action by ORR depending on the circumstances presented, as is explained below in addressing the merits.
Plaintiffs argue they are challenging “a uniform policy of ensuring that UCs continue their pregnancies while in government custody.” Opp. 10. But plaintiffs have not established such a blanket policy, only that the ORR director reviews significant medical procedures like abortion.4 II. The Government is Likely to Succeed on its Challenge to the
Preliminary Injunction. A. Facilitation Sponsorship and voluntary departure are valid alternatives to government facilitation of abortion. In this facial challenge, plaintiffs must show these policies violate the Constitution in all or a large fraction of their applications. See Gonzales v. Carhart, 550 U.S. 124, 168 (2007); Reno v. Flores, 507 U.S. 292, 301 (1993). Such challenges are “disfavored” because they “often rest on speculation” and “run contrary to the fundamental principle of judicial restraint.” Washington State

4Plaintiffs’ challenge to ORR’s general policy of requiring “visits to crisis pregnancy centers . . . to steer pregnant UCs away from abortion” has already been rejected by Judge Millett for the Garza Court. See 874 F.3d at 741 (“The government unquestionably is fully entitled to have its own view preferring the continuation of pregnancy, and to even require the disclosure of information expressing that view.”).
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Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008). Here, plaintiffs cannot meet their burden.
By rejecting sponsorship entirely, the injunction mandates the kind of “immediate abortion on demand” warned of by Judge Kavanaugh. See Garza, 874 F.3d at 752 (dissent). As shown by two of the four named plaintiffs here, sponsorship or release often occurs before any need to facilitate abortion arises. Plaintiffs set forth no acceptable waiting period in their opposition, and instead rely on Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). Opp. 17-18. But Whole Woman’s Health addressed the state’s admitting-privileges and surgical-center requirements, not a three-week waiting period. Id. at 2310-18. Instead, the Supreme Court has accepted procedures addressing parental involvement – which Judge Millett recognized is related to the goal of promptly finding a sponsor, 874 F.3d at 740 – that take over three weeks. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990).
This Court also recognized that the ability to timely locate a sponsor is significant to whether there is a right to court-ordered government facilitation of abortion. See Garza, 874 F.3d at 738-39. This is particularly true in cases involving children, where “the Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes.” Id. at 755 (Kavanaugh, dissenting). Such a
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permissible purpose would include, among other reasons, “that it would be good to put J.D. ‘in a better place [outside of government custody] when deciding whether to have an abortion.’” Id. at 740 (Millett, concurring). Plaintiffs therefore cannot show sponsorship is an unconstitutional alternative in even a large fraction of cases.
Similarly, plaintiffs provide no evidence that the vast majority of minors in ORR custody are “fleeing horrific circumstances in their home countries[,]” thereby invalidating voluntary departure as a viable option altogether. Opp. 17. The Garza Court determined that voluntary return was overly-burdensome in Doe’s case due to factual circumstances preventing prompt return. 874 F.3d at 740. Not all minors present those circumstances, and no other plaintiff here asserted them. Plaintiffs’ assertion to the contrary “rest[s] on speculation” and does not justify the injunction. 552 U.S. at 451.
B. The Gag Order The district court’s amended gag order lacks any legal basis. ORR’s communications with parents, medical personnel, and potential future sponsors – sometimes without the consent of the child, who may be as young as ten years of age – cannot violate Due Process. Congress has affirmatively charged ORR, in its custodial role, with communicating with parents and potential sponsors. See 6 U.S.C. § 279(b)(1)(H); 8 U.S.C. § 1232(c)(3)(A).

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While a parental consent requirement with no bypass process might impose an undue burden, here the only issue is whether ORR may itself notify parents, doctors, or potential sponsors. As an initial matter, parental notification jurisprudence does not apply because the question here is not whether a minor must notify a parent to abort, but whether ORR may share information it possesses with a parent or doctors. But even under that law, “a parental notice statute — unlike either a spousal notice or a blanket parental consent statute — has neither ‘the purpose [n]or effect of placing a substantial obstacle in the path of a woman seeking an abortion,’ and therefore cannot reasonably be said to unduly burden the minor’s abortion right.” Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc). This is particularly true here, where unlike in state judicial bypass cases, the parent does not have custody of the child and therefore cannot obstruct the abortion.
Further, ORR’s practice of parental notification includes the sort of appropriate exceptions courts have pointed to in upholding parental notification laws. See id. at 372-74. Here, ORR and its grantees do not disclose health situations if doing so would “endanger the [minor’s] health and well-being.” Sualog Decl. ¶10. Rather, ORR seeks “to make parents aware of their child’s status, to help lead to the best decisions for the child’s health, and to advance the child’s best interests.” Id. ¶7. Especially where parents are physically remote, this
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constitutes the kind of reasonable parental notification policy that does not create an undue burden and is fully consistent with the type of bypass procedures the Supreme Court has approved.
Plaintiffs allege that ORR did not follow this policy in the case of Poe, Opp. 20, but such a claim does not justify a class-wide injunction against a policy that is facially sound. Moreover, the assertion is based not on evidence from Poe, who made no mention of this in her declaration, but on statements by attorneys in a district court brief. See ECF 64-1; 94 at 4. III. The Remaining Factors Favor Granting a Stay
Plaintiffs cannot show irreparable harm. Rather, future class members can bring claims when those claims arise, as this litigation has shown. See Whole Woman’s Health, 136 S. Ct. at 2311.
In contrast, the government is now constrained in consulting with the parents of the minors in its custody and, in some cases, must facilitate termination of life. The overbreadth of the district court’s order regarding notice has compounded these harms. The court ordered class notice to all minors in ORR-funded shelters (male or female, pregnant or not, of all ages), which forces ORR to advertise abortion at the expense of its constitutionally legitimate interest in life. It also infringes upon the legitimate objections of grantees by forcing them to communicate an abortion-advocacy message they disagree with, especially to
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young children (who may not even be old enough to read, much less become pregnant). Sualog Decl.2 ¶¶5-6. This district court is presently obstructing ORR from fulfilling its custodial role, and thus, the injunction should be stayed pending appeal.
CONCLUSION Accordingly, the Court should stay the preliminary injunction and certification.

DATED: April 26, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division
HASHIM MOOPPAN Deputy Assistant Attorney General
BY: /s/ August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division
ERNESTO H. MOLINA Deputy Director Office of Immigration Litigation

W. DANIEL SHIEH MICHAEL C. HEYSE CHRISTINA P. GREER SABATINO F. LEO Trial Attorneys
Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 305-7002 Fax: (202) 616-4923 michael.heyse@usdoj.gov daniel.shieh@usdoj.gov sabatino.f.leo@usdoj.gov Attorneys for Defendants-Appellants in their official capacities

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CERTIFICATE OF SERVICE I hereby certify that on April 26, 2018, I caused a copy of the foregoing Defendants’ Reply to be filed with the Clerk of the Court using the Court’s CM/ECF system. Counsel for plaintiffs are registered CM/ECF users, and will be served exclusively through that system.

/s/ August E. Flentje AUGUST E. FLENTJE Special Counsel

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CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Reply complies with the type-volume
limitation of Fed. R. App. P. 27 because it contains 2600 words. This Reply
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
Word 14-point Times New Roman typeface.
/s/ August E. Flentje AUGUST E. FLENTJE Special Counsel

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 Case 1:17-cv-02122-TSC Document 143 Filed 09/18/18 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.D. and JANE ROE on behalf of themselves )

and others similarly situated; and JANE POE )

and JANE MOE,

)

) No. 17-cv-02122-TSC

c/o ACLU

)

125 Broad Street, 18th Fl.

)

New York, NY 10004,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, Secretary of Health and )

Human Services

)

U.S. Department of Health & Human

)

Services

)

200 Independence Avenue, S.W.

)

Washington, D.C. 20201;

)

)

STEVEN WAGNER, Acting Assistant

)

Secretary for Administration for Children and )

Families, in his official capacity

)

330 C Street, S.W.

)

Washington, D.C. 20201; and

)

)

E. SCOTT LLOYD, Director of Office of

)

Refugee Resettlement, in his official capacity )

330 C Street, S.W.

)

Washington, D.C. 20201,

)

)

Defendants.

)

)

)

THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF (Interference with minors’ constitutional right to obtain an abortion)

Plaintiffs J.D. and Jane Roe, on behalf of themselves and a class of similarly situated pregnant unaccompanied immigrant minors in the legal custody of the federal government, and

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Plaintiffs Jane Poe and Jane Moe, on behalf of themselves, for their complaint in the abovecaptioned matter, allege as follows:
PRELIMINARY STATEMENT 1. There are currently thousands of unaccompanied immigrant minors (also known as unaccompanied children, or “UCs”) in the legal custody of the federal government. These young people are extremely vulnerable: Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted either in their home countries, during their long journey to the United States, or after their arrival; some have also been trafficked for labor or prostitution in the United States or some other country; and many have been separated from their families. 2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion. And, as is true with everyone in the United States, the Constitution prohibits the government from imposing an “undue burden” on their right to obtain an abortion. 3. In 2017, Defendants revised nationwide policies to allow them to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion in violation of their Fifth Amendment rights. Under these nationwide policies, Defendants also attempt to coerce minors to carry their pregnancies to term, including by forcing unaccompanied minors who request abortion to visit pre-approved anti-abortion crisis pregnancy centers, which require the minors to divulge the most intimate details of their lives to entities hostile to their abortion decisions, in violation of their First and Fifth Amendment rights. Defendants also force minors to notify parents or other family members of their pregnancies and/or their requests for abortions, or notify family members themselves, in violation of the First and Fifth Amendments. In some instances, the Director of the Office of Refugee Resettlement (ORR) has personally attempted to coerce minors to continue their pregnancies. When these efforts at coercion fail, Defendants bar minors from attending appointments necessary to secure an abortion.
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4. In the last several months, at least four pregnant unaccompanied minors in the legal custody of the federal government who sought to access abortions — “J.D.” or “Jane Doe”, “Jane Moe”, “Jane Roe,” and “Jane Poe”1— were, pursuant to Defendants’ policy, subjected to various coercion attempts, and ultimately blocked from accessing abortion. Plaintiffs were only able to access abortion after they sought emergency relief in this Court.
JURISDICTION AND VENUE 5. This action arises under the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. 6. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable powers of this Court. 7. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. 8. Venue is proper in this district under 28 U.S.C. § 1391(e).
PARTIES Plaintiff J.D. 9. Plaintiff J.D. came to the United States from her home country as a minor without her parents. J.D. was detained by the federal government and placed in a federally funded shelter in Texas. She was pregnant and in September 2017 told the staff at the shelter where she was housed that she wanted an abortion. J.D. faced extreme resistance from Defendants. With the assistance of court-appointed attorney and guardian ad litems, J.D. secured a court order permitting her to bypass state law requiring parental consent for abortion, and allowing her to
1 The named Plaintiffs have all filed motions to proceed under pseudonyms, which are either pending or have been granted.
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consent to the abortion on her own. Nevertheless, Defendants took the position that they would not allow J.D. to access abortion.
10. J.D. was forced to cancel multiple appointments for state-mandated counseling and the abortion due to Defendants’ obstruction, which unnecessarily pushed J.D. later into pregnancy.
11. Defendants also forced J.D. to visit an anti-abortion crisis pregnancy center. 12. Over J.D.’s objection, Defendants told J.D.’s mother about her pregnancy. 13. Defendants also subjected J.D. to medically unnecessary ultrasounds. 14. J.D. moved this Court to be referred to in this litigation by the initials “J.D.” for “Jane Doe” to protect her privacy. 15. This Court granted a TRO preventing Defendants from continuing to block J.D. from obtaining abortion. 16. Defendants’ obstruction delayed J.D.’s abortion by four weeks. If this Court had not granted a TRO, J.D. would have been forced to carry the pregnancy to term against her will. 17. J.D. has turned 18, and is no longer in Defendants’ custody. She continues to fear retaliation because of her abortion decision, and she does not want her family or others to know she obtained an abortion. 18. J.D. sues on her own behalf and as the class representative of other similarly situated young women.
Plaintiff Jane Roe 19. Plaintiff Jane Roe came to the United States from her home country as a minor without her parents. She was detained by the federal government, and was residing in a private, federally funded shelter. 20. On November 21, 2017, she discovered she was pregnant during a medical examination after she was in federal custody. The physician discussed her pregnancy options, and she decided to have an abortion.
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21. She asked her doctor and her shelter for an abortion, but Defendants did not allow her to have one. Ms. Roe requested to terminate her pregnancy by taking medications (known as a medication abortion) that end the pregnancy and essentially cause a miscarriage. However, because of Defendants’ obstruction, Defendants pushed her further into her pregnancy, past the point in pregnancy in which medication abortion is available. Ms. Roe nonetheless still wanted an abortion, but Defendants refused to allow her to obtain one.
22. Defendants required Ms. Roe’s sister and potential sponsor to be notified of her abortion request.
23. Ms. Roe was also subjected to a medically unnecessary ultrasound. 24. Ms. Roe filed suit seeking emergency relief preventing Defendants from continuing to obstruct her access to abortion. Ms. Roe was granted leave from this Court to proceed in this litigation as “Jane Roe” to protect her privacy. 25. This Court granted Ms. Roe the relief she requested and Defendants appealed. Before the appeal was briefed or the Circuit Court could rule, Defendants released Ms. Roe from custody. 26. Ms. Roe continues to fear retaliation because she requested and obtained an abortion. 27. She does not want her family or others to know she obtained an abortion. 28. Ms. Roe sues on her own behalf and as class representative of other similarly situated young women.
Plaintiff Jane Poe 29. Plaintiff Jane Poe came to the United States from her home country as a minor without her parents, was detained by the federal government, and is residing in a private, federally funded shelter. 30. Ms. Poe was raped in her home country. She discussed her pregnancy options with a physician, and in November 2017 requested an abortion. 31. Ms. Poe expressed thoughts of self-harm if she were unable to obtain an abortion.
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32. Nonetheless, ORR subjected Ms. Poe to various coercion tactics, and unnecessarily pushed her further into her pregnancy.
33. For example, based on Defendants’ policy, Defendants instructed the shelter that either Ms. Poe tell her mother and potential sponsor about her pregnancy, or the shelter must do so. As a result, Ms. Poe told her mother and potential sponsor about her pregnancy. They threatened to physically abuse her if she had an abortion.
34. Despite the circumstances surrounding Ms. Poe’s pregnancy, her threats of selfharm, and the threats of abuse, Defendant Lloyd nevertheless determined that it was not in Ms. Poe’s “best interest” to have an abortion, citing anti-abortion arguments and anti-abortion sources.
35. Defendant Lloyd’s denial of Ms. Poe’s abortion request was issued on December 17, more than two weeks after Ms. Poe’s initial request.
36. Ms. Poe filed suit seeking emergency relief preventing Defendants from continuing to obstruct her access to abortion. This Court granted the requested relief. If this Court had not intervened, Ms. Poe would have been forced to carry her pregnancy to term.
37. Ms. Poe was granted leave by this Court to proceed in this litigation as “Jane Poe” to protect her privacy.
38. Ms. Poe fears retaliation because she obtained an abortion, and she does not want her family or others to know she obtained an abortion.
Plaintiff Jane Moe 39. Plaintiff Jane Moe came to the United States from her home country as a minor without her parents, was detained by the federal government, and resided in a private, federally funded shelter. 40. She decided to have an abortion. For two weeks, she asked the shelter for access to abortion but was not permitted to access abortion.
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41. Pursuant to Defendants’ policy, Jane Moe was required to visit an anti-abortion crisis pregnancy center to discuss her pregnancy where she was subjected to a medically unnecessary ultrasound.
42. Defendant Lloyd instructed that Ms. Moe be read and given a copy of a personalized letter from a family offering to adopt her baby if she continued the pregnancy.
43. Based on Defendants’ policy, Defendants required Ms. Moe to disclose her pregnancy and request for an abortion to her sponsor.
44. Ms. Moe filed suit seeking emergency relief preventing Defendants from continuing to obstruct her access to abortion.
45. Three days later, before this Court could rule on that request, Defendants transferred her out of their custody.
46. Jane Moe also requested leave from this Court to proceed in this litigation as “Jane Moe” to protect her privacy. She fears retaliation because she has requested an abortion, and she does not want her family or others to know she requested an abortion.
47. Jane Moe sues on her own behalf. Defendants
48. Defendant Alex M. Azar II is the Secretary of the United States Department of Health and Human Services (“HHS”) and is responsible for the administration and oversight of the Department. Defendant Azar has authority over the Administration for Children and Families, a subdivision of HHS. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Azar is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Azar is sued in his official capacity.
49. Defendant Steven Wagner is the Acting Assistant Secretary for Administration for Children and Families. Defendant Wagner has authority over the Office of Refugee Resettlement (“ORR”), a subdivision of Administration for Children and Families. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant
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Wagner is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Wagner is sued in his official capacity.
50. Defendant E. Scott Lloyd is the Director of ORR. ORR oversees the unaccompanied children program. By interfering with, prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, and imposing his religious beliefs on these minors, Defendant Lloyd is violating the First and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Lloyd is sued in his official capacity.
FACTS GIVING RISE TO THIS ACTION The Unaccompanied Children (“UC”) Program 51. ORR has responsibility for the “care and custody of all unaccompanied [] children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1). Unaccompanied immigrant minors are under 18 years old, have no legal immigration status, and either have no parent or legal guardian in the United States, or there is no parent or legal guardian in the United States able to provide care and physical custody. 6 U.S.C. § 279(g)(2). ORR determines whether a minor qualifies for this designation at the point the minor enters ORR custody. 52. By statute, any federal department or agency that determines that it has an unaccompanied immigrant minor in its custody must, absent “exceptional circumstances,” transfer the minor to ORR within 72 hours of making that determination. Id. § 1232(b)(3). The federal government reports that in Fiscal Year 2017, 40,810 unaccompanied immigrant minors were referred to ORR. 53. The federal government and all of its programs are required to ensure that the best interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland Security Act requires ORR to “ensur[e] that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. § 279(b)(1)(B).
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54. In addition, Section 235 of the Trafficking Victims Protection Reauthorization Act directs HHS to ensure that unaccompanied immigrant minors are “promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
55. Most unaccompanied immigrant minors who are referred to ORR are eventually released from custody to parents or sponsors who live in the United States. Such minors are often held in short-term facilities or shelters while they await release to their parents or sponsors. A significant number of unaccompanied immigrant minors are not released to parents or sponsors, and spend longer periods of time in custody.
56. Although the majority of minors are eventually reunified with family members in the United States, some minors have no viable sponsor.
57. For those minors who do have a potential sponsor, the process for identifying, contacting, vetting and approving a qualified sponsor can take weeks or months. The process for sponsor vetting includes submission by a sponsor of the application for release and supporting documentation, the evaluation of the suitability of the sponsor, including verification of the sponsor’s identity and relationship to the child, background checks, and in some cases home studies. This process is largely outside of the control of the individual minor.
58. Some minors may seek to return to their home country voluntarily, but that process also involves multiple steps, and can take at least several months. Unaccompanied minors in ORR custody must be placed in removal proceedings before an immigration judge, and only once in removal proceedings can a minor request voluntary departure. Once an immigration judge holds a hearing and determines that the minor is eligible for voluntary departure, he or she has discretion to grant it, but the government may oppose. Even if the judge grants voluntary departure, the process to repatriate the minor requires further steps, including involving the minor’s home country’s consulate. Overall, it can take months from the time the minor requests voluntary departure until she is returned to her home country, and the timing of many of the necessary steps is out of the minor’s control. Moreover, asking for voluntary departure prior to the conclusion of the removal proceeding necessarily means that the minor gives up any defenses
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to removal proceedings, including the opportunity to obtain Special Immigration Juvenile Status or asylum.
Unaccompanied Immigrant Minors Have an Acute Need for and Are Legally Entitled to Receive Access to Reproductive Health Care
59. Unaccompanied immigrant minors have an acute need for reproductive health care, which is both time-sensitive and is necessary over the course of their time in federal custody. For example, a high number of these young women are victims of sexual assault. Some of these women will need access to emergency contraception, and some will need access to abortion. Any female aged 10 or older must undergo a pregnancy test within 48 hours of admission to an ORR-funded facility. This is the point at which many young women first learn they are pregnant.
60. The federal government is legally obligated to ensure that all programs that provide care to these young people comply with the minimum requirements detailed in the Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997) (“Flores agreement”). The Flores agreement is a nationwide consent decree that requires the government to provide or arrange for, among other things, “appropriate routine medical . . . care,” including specifically “family planning services[] and emergency health care services.”
61. Additionally, in response to its obligations under the Prison Rape Elimination Act and the Violence Against Women Reauthorization Act of 2013, ORR issued a regulation requiring all ORR-funded care provider facilities to, among other things, provide unaccompanied immigrant with access to reproductive healthcare if they are sexually assaulted in ORR custody. The regulation states, in relevant part, that grantees providing care to unaccompanied immigrant minors who have experienced sexual abuse while in federal custody must ensure “unimpeded access to emergency medical treatment, crisis intervention services, emergency contraception, and sexually transmitted infections prophylaxis.” 45 C.F.R. § 411.92(a). The regulation further provides that grantees must ensure that a young person subject to sexual abuse in ORR custody is offered a pregnancy test, and “[i]f pregnancy results from an instance of sexual abuse, [the] care
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provider facility must ensure that the victim receives timely and comprehensive information about all lawful pregnancy-related medical services.” Id. § 411.93(d).
62. Adult women in Immigration and Customs Enforcement detention, and inmates in federal prison, are expressly granted the right to access abortion services. See ICE, Detention Standard 4.4, Medical Care (Women), at 35 (revised Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/4-4.pdf; 28 C.F.R. § 551.23(c).
Defendants’ Interference With, Obstruction, And Prohibition On Unaccompanied Immigrant Minors’ Access to Abortion
63. Since March 2017, Defendants have had a policy, applicable to all pregnant UCs in their custody, of ensuring that young people continue their pregnancies while in ORR custody, unless doing so would pose a risk of death or serious injury. Defendants prohibit all federally funded shelters from taking “any action that facilitates” abortion access for unaccompanied minors in their care without “direction and approval from the Director of ORR.” This includes scheduling appointments with medical providers, ensuring access to non-directive options counseling, ensuring access to court to seek a judicial bypass in lieu of parental consent, and providing access to the abortion itself. Defendant Lloyd has taken the position that “[g]rantees should not be supporting abortion services pre or post-release; only pregnancy services and lifeaffirming options counseling.”
64. In an email to all ORR staff, then-Acting Director of ORR Ken Tota summarized the policy: “Grantees are prohibited from taking any actions in [requests for abortion] without . . . signed authorization from the Director of ORR.”
65. As part of the revised policy, pregnant minors seeking abortion are also subject to coercion tactics. For example, such minors are forced to tell their parents that they are pregnant
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and seeking an abortion; if they refuse, ORR instructs the shelter to tell their parents against their wishes.
66. As described below, ORR also requires minors considering an abortion to visit a pre-approved anti-abortion crisis pregnancy center.
67. If these attempts to coerce the minor into carrying to term fail, ORR prevents the minor from obtaining an abortion while she is in its custody, unless the pregnancy would pose a risk of death or serious injury to the minor.
68. Defendants have exercised their unconstitutional veto power to deny minors access to abortion by prohibiting their shelters from transporting or allowing them to be transported to appointments related to abortion access.
69. Defendants’ actions toward the named Plaintiffs are consistent with their policy, which has been enforced against other young women as well.
70. For example, in March 2017, another unaccompanied minor at a federally funded shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving counseling, she started the medical abortion regimen for terminating a pregnancy. This regimen begins with a dose of mifepristone, followed by a dose of misoprostol within 48 hours later. After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency room of a local hospital in order to determine the health status of [her] and her unborn child.” The Acting Director of ORR, Ken Tota, directed ORR as follows: “[i]f steps can be taken to preserve the life of . . . her unborn child, those steps should be taken.” At the hospital, the minor was subjected to a medically unnecessary ultrasound. Defendants contemplated trying to “reverse” the minor’s abortion against her will by forcing her to undergo an untested regimen of
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progesterone. Eventually, after the intervention of other advocates, ORR allowed the minor to complete the medication abortion and take the second dose of pills.
71. Defendant Lloyd has personally contacted one or more unaccompanied immigrant minors who were pregnant and seeking abortion, and discussed with them their decision to have an abortion. Defendant Lloyd is trying to use his position of power to coerce minors to carry their pregnancies to term. Defendant Lloyd has a religious opposition to abortion and he is imposing his personal beliefs on unaccompanied minors.
72. ORR has also created a nationwide list of “Trusted Providers in HHS Cities,” which comprises anti-abortion crisis pregnancy centers. The list was created by two antiabortion, religiously affiliated organizations called CareNet and Heartbeat International. As part of ORR’s policy, if a minor expresses that she is contemplating abortion, ORR requires her to visit one of these pre-approved centers.
73. Crisis pregnancy centers are categorically opposed to abortion, and generally do not provide information about pregnancy options in a neutral way. Many are also religiously affiliated, and proselytize to women.
74. Defendants forced J.D. to visit one of these centers for “counseling,” forcing her to share her private personal and medical information, namely that she was pregnant and seeking an abortion, to an entity that is hostile to her decision to have an abortion. The center also prayed for J.D. in her presence during her mandatory visit.
75. Defendants have also required other minors to be counseled by crisis pregnancy centers, both before and after their abortions, including at the explicit direction of Defendant ORR Director Lloyd.
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76. Defendants have also forced unaccompanied immigrant minors to tell their parents and/or immigration sponsors about their abortion decision, or Defendants themselves have told minors’ family members or sponsors about the minors’ pregnancy and/or abortion decision, against the express wishes of the minors, both before and after their abortions. Forcing parental notification over the minors’ objection can cause the minor or other family members harm.
77. Defendants told J.D.’s mother about J.D.’s pregnancy – over J.D.’s objections – and tried to force J.D. to also tell her mother she was seeking an abortion, despite the fact that J.D had been abused by her parents.
78. Defendants also required Jane Poe to tell her mother in her home country and her potential sponsor that she was pregnant and seeking an abortion. They then threatened to beat her if she had an abortion.
79. In another minor’s case, Defendant Lloyd explicitly required “the grantee or the federal field staff [to] notify her parents of the termination,” even after she had obtained a judicial bypass to be allowed to access abortion without her parents’ involvement or knowledge.
80. In another instance, ORR directed such parental notification despite being warned by the minors’ advocate that the minor’s father would retaliate against the mother because of the minor’s abortion decision.
81. Defendant Lloyd has also obstructed minors’ access to counsel and the courts for the purpose of impeding minors’ access to abortion. In March 2017, Lloyd sent a directive saying that a minor seeking abortion “should not be meeting with an attorney regarding her termination or otherwise pursuing a judicial bypass at this point.”
CLASS ALLEGATIONS
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82. Pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), Plaintiffs J.D. and Jane Roe bring this action as a class action on behalf of all other pregnant unaccompanied immigrant minors in ORR custody nationwide, including those who will become pregnant during the pendency of this lawsuit.
83. The class is so numerous that joinder is impracticable. In any given year, there are hundreds of pregnant unaccompanied minors in Defendants’ custody. Joinder is inherently impractical because the number of unnamed, future class members who will be pregnant while in ORR custody is unknown and unknowable, especially given the transient nature of the unaccompanied minors population and the temporal limitations of pregnancy. The young people affected by ORR’s abortion restriction policy are geographically dispersed across the country. Many proposed class members are highly unlikely to file individual suits on their own behalf given the practical, legal, linguistic, monetary, and fear-based barriers that prevent their ability to access independent counsel to challenge ORR’s abortion restrictions.
84. The claims of the Plaintiff Class members share common issues of law related to Defendants’ coercion and obstruction, including but not limited to: (i) whether ORR’s policy of coercing unaccompanied immigrant minors into carrying their pregnancies to term and, if they still seek an abortion, blocking their access to abortion procedures, violates class members’ constitutional rights; (ii) whether ORR’s policy of requiring a forced visit to an anti-abortion crisis pregnancy center violates class members’ constitutional rights; (iii) whether disclosing or forcing the class members to disclose their pregnancies and abortion decisions to parents and/or immigration sponsors violates class members’ constitutional rights; and (iv) whether Defendant Lloyd’s imposition of his religious faith on the minors violates the Establishment Clause.
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85. The claims of the Plaintiff Class members share common issues of fact, including but not limited to the implementation of Defendants’ policy and practice of obstructing or preventing of access to abortion and of coercing minors into carrying their pregnancies to term in the various ways detailed above.
86. The claims of J.D. and Jane Roe are typical of the claims of members of the Plaintiff Class.
87. The named class representatives will fairly and adequately protect the interests of the Plaintiff Class. The named class representatives have no interest that is now or may potentially be antagonistic to the interests of the Plaintiff Class. The attorneys representing the named class representatives are experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
88. Defendants have acted, have threatened to act, and will continue to act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(2).
89. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(1).
CAUSES OF ACTION FIRST CLAIM FOR RELIEF FIFTH AMENDMENT RIGHT TO PRIVACY AND LIBERTY (INDIVIDUAL PLAINTIFFS AND CLASS AGAINST DEFENDANTS)
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90. Defendants violate unaccompanied immigrant minors’ right to privacy guaranteed by the Fifth Amendment by wielding a veto power over their abortion decisions, and by obstructing, interfering with, or blocking access to abortion, including by trying to coerce minors to carry to term by such tactics as forcing minors to visit crisis pregnancy centers, and when those tactics fail, preventing them from accessing the courts for the purpose of obtaining judicial bypasses, and from going to medical facilities where they can obtain legal abortions.
91. Defendants violate the Fifth Amendment rights of unaccompanied minors by revealing, or forcing the minors to reveal, information about their pregnancy and abortions to their parents or other family members, including immigration sponsors, both before and after the abortion.
92. Defendants violate unaccompanied minors’ Fifth Amendment right to bodily integrity by subjecting them to medically unnecessary ultrasounds.
SECOND CLAIM FOR RELIEF FIRST AMENDMENT - COMPELLED SPEECH (INDIVIDUAL PLAINTIFFS AND CLASS AGAINST DEFENDANTS) 93. By compelling unaccompanied immigrant minors to disclose their pregnancy and decision to have an abortion to crisis pregnancy centers, and to their parents, family members and/or immigration sponsors, Defendants violate the unaccompanied immigrant minors’ rights against compelled speech guaranteed by the First Amendment. The compelled disclosure reveals private, intimate information to others, including to entities hostile to the minors’ abortion decision.
THIRD CLAIM FOR RELIEF INFORMATIONAL PRIVACY (INDIVIDUAL PLAINTIFFS AND CLASS AGAINST DEFENDANTS)
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94. By requiring unaccompanied immigrant minors to disclose their identities, their pregnancies, and their decisions to seek or have an abortion, to a crisis pregnancy center, parents, family members, and/or immigration sponsors, or doing so themselves, Defendants violate the minors’ rights to informational privacy guaranteed by the Fifth Amendment.
FOURTH CLAIM FOR RELIEF FIRST AMENDMENT – ESTABLISHMENT CLAUSE (INDIVIDUAL PLAINTIFFS AND CLASS AGAINST DEFENDANTS) 95. Defendants violate the Establishment Clause by requiring unaccompanied immigrant minors to obtain counseling at crisis pregnancy centers that are often religiously affiliated, and that proselytize to the unaccompanied immigrant minors who are forced to go there. 96. Defendant Lloyd’s actions violate the Establishment Clause by imposing his religious beliefs on unaccompanied minors, and directing that they hear unwanted religious messages about their pregnancies and pregnancy outcomes. 97. Defendants’ actions alleged herein endorse and impose upon the class members a particular set of religious beliefs. 98. Defendants’ actions alleged herein have the predominant purpose of advancing a particular set of religious beliefs. 99. Defendants’ actions alleged herein have the predominant effect of advancing a particular set of religious beliefs. 100. Defendants’ actions alleged herein are religiously coercive.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor and:
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1. Certify this action as a class action under Federal Rule of Civil Procedure 23; 2. Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth above, violate the Establishment and Free Speech Clauses of the First Amendment to the United States Constitution, and the Fifth Amendment right to privacy, liberty, informational privacy, and bodily integrity; 3. Enter a preliminary and permanent injunction as to the Class to prevent Defendants from wielding a veto power over an unaccompanied minors’ abortion decision, including interfering, obstructing, or blocking their access to abortion; 4. Enter a preliminary and permanent injunction as to the Class to prevent Defendants from pressuring or coercing pregnant minors to carry their pregnancies to term, including by forcing unaccompanied immigrant minors to visit crisis pregnancy centers as a condition of having an abortion or after an abortion; 5. Enter a preliminary and permanent injunction as to the Class preventing Defendants from imposing religious beliefs on unaccompanied minors; 6. Enter a preliminary and permanent injunction as to the Class preventing Defendants from revealing, or forcing unaccompanied immigrant minors to reveal, to the minors’ parents, family members or immigration sponsors information about the minors’ pregnancies and/or abortion decisions, either prior to or after an abortion against the minors’ will; 7. Enter a preliminary and permanent injunction to prevent Defendants from retaliating against unaccompanied immigrant minors for seeking or obtaining abortions, and from retaliating against shelters, shelter staff, or immigration attorneys for assisting minors in accessing abortion; 8. Award costs and fees for this action, including attorneys’ fees;
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9. Award such further relief as this Court deems appropriate.

February 15, 2017

Respectfully Submitted,
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) Shana Knizhnik (D.C. Bar No. 1020840) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 Fax 202-457-0805 aspitzer@acludc.org smichelman@acludc.org sknizhnik@acludc.org
/s/Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633 Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org
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Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org Mishan Wroe Riley Safer Holmes & Cancila LLP 456 Montgomery Street, 16th Floor San Francisco, CA 94104 Tel. (415) 275-8522 Fax (415) 275-8550 mwroe@rshc-law.com *Motion for admission pro hac vice granted Attorneys for Plaintiffs
21

 
 Case 1:17-cv-02122-TSC Document 136 Filed 04/16/18 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

ROCHELLE GARZA, as guardian ad litem to )

unaccompanied minor J.D., on behalf of

)

herself and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR II, et al.,

)

)

Defendants.

)

)

Civil Action No. 17-cv-02122 (TSC)

AMENDED CLASS CERTIFICATION AND PRELIMINARY INJUNCTION ORDER
For the reasons set forth in the accompanying Memorandum Opinion, the court hereby GRANTS Plaintiffs’ Motion for Class Certification (ECF No. 18) and Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 5) as to the class.1 The relevant class is defined as all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government. Jane Doe and Jane Roe are designated as class representatives. The attorneys who have appeared on behalf of Plaintiffs are designated as class counsel.
It is hereby ORDERED that Defendants Alex M. Azar II, Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are:

1 Based on the parties’ more recent filings, the court has altered the caption of this case to reflect the confirmation of Mr. Alex M. Azar II as Secretary of Health and Human Services.
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Case 1:17-cv-02122-TSC Document 136 Filed 04/16/18 Page 2 of 2
(1) Enjoined from interfering with or obstructing any class member’s access to: (1) a judicial bypass, (2) medical appointments related to pregnancy dating, (3) non-directive options counseling, (4) abortion counseling, (5) an abortion, or (6) other pregnancyrelated care;
(2) Enjoined from forcing any class member to reveal the fact of their pregnancies and/or their abortion decisions to anyone, and from revealing that fact or those decisions to anyone themselves, either before or after an abortion, unless the class member provides non-coerced consent to such disclosure or needs emergency medical care and is incapacitated such that she is unable to inform a medical care provider herself;
(3) Enjoined from retaliating against any class member based on her decision to have an abortion;
(4) Enjoined from retaliating or threatening to retaliate against contractors that operate the shelters where class members currently reside for any actions that those contractors or shelters have taken or may take in facilitating class members’ ability to access pregnancy and abortion-related medical care and/or an abortion.
Date: April 16, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
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 Case 1:17-cv-02122-TSC Document 168 Filed 09/29/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.D., on behalf of herself and others similarly situated, et al.,
Plaintiffs, v. ALEX M. AZAR, et al.,
Defendants.

) ) ) ) ) ) No. 17-cv-02122-TSC ) ) ) ) ) )

JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the parties, by and through

their undersigned counsel, hereby jointly stipulate and agree that the above-captioned case shall be,

and is hereby, dismissed without prejudice, subject to the following conditions:

1. Defendants’ adoption of the revised policy on Medical Services Requiring Heightened ORR Involvement, attached hereto as Exhibit A, and communication of this revised policy to all Office of Refugee Resettlement (“ORR”) federal field officers and ORR-funded shelters housing unaccompanied immigrant minors (hereinafter “UACs” or “minors”).

2. Defendants shall notify Plaintiffs’ counsel at least fourteen (14) calendar days in advance of making any change to the Medical Services Requiring Heightened ORR Involvement policy, Exhibit A, or to any other relevant ORR policy or practice, as it relates to a minor’s access to non-directive options counseling, including abortion counseling, state judicial bypass proceedings, and abortion, and/or to the communication of information about a minor’s pregnancy and/or abortion decision to third parties, including, but not limited to, sponsors, prospective sponsors and parents, unless an emergency or applicable law makes

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providing fourteen (14) days’ notice impracticable, in which case Defendants shall provide notice as soon as possible. This notification requirement will remain in place for two years from the date of filing this Joint Stipulation with the Court.

3. Defendants shall require all ORR-funded shelters to post the Know Your Rights notice, attached hereto as Exhibit B, on all housing bulletin boards in both English and Spanish, adjacent to the notice required by the Prison Rape Elimination Act (“PREA”), 34 U.S.C. 30301 et seq.

4. Defendants shall pay Plaintiffs’ counsel $336,710.19 in fees and costs for this matter. Plaintiffs’ counsel agrees to cooperate with Defendants’ counsel in promptly providing additional reasonable information needed for requesting payment and transmission of funds. The parties agree that this Joint Stipulation shall resolve all claims for attorneys’ fees and costs accrued as of the time of this Joint Stipulation.

5. This Joint Stipulation shall be binding upon and inure to the benefit of the parties hereto and their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them.

September 29, 2020

Respectfully submitted,
/s/ Brigitte Amiri Brigitte Amiri* Meagan Burrows Jennifer Dalven Lindsey Kaley American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2633

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Case 1:17-cv-02122-TSC Document 168 Filed 09/29/20 Page 3 of 4
Fax (212) 549-2652 bamiri@aclu.org mburrows@aclu.org jdalven@aclu.org lkaley@aclu.org
Arthur B. Spitzer (D.C. Bar No. 235960) Scott Michelman (D.C. Bar No. 1006945) American Civil Liberties Union Foundation of the District of Columbia 915 15th Street NW, Second Floor Washington, D.C. 20005 Tel. 202-457-0800 aspitzer@acludc.org smichelman@acludc.org
Daniel Mach (D.C. Bar No. 461652) American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel. (202) 675-2330 dmach@aclu.org
Elizabeth Gill American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Tel. (415) 621-2493 Fax (415) 255-8437 egill@aclunc.org
Melissa Goodman American Civil Liberties Union Foundation of Southern California 1313 West 8th Street Los Angeles, California 90017 Tel. (213) 977-9500 Fax (213) 977-5299 mgoodman@aclusocal.org
*Admitted pro hac vice
Attorneys for Plaintiffs
3

Case 1:17-cv-02122-TSC Document 168 Filed 09/29/20 Page 4 of 4 /s/ W. Daniel Shieh W. Daniel Shieh Christina P. Greer Senior Litigation Counsels Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 598-8770 Fax: (202) 616-4975 Daniel.Shieh@usdoj.gov Christina.P.Greer@usdoj.gov Attorneys for Defendants
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Exhibit A

Case 1:17-cv-02122-TSC Document 168-1 Filed 09/29/20 Page 2 of 5
Medical Services Requiring Heightened ORR Involvement
Applicability
This policy brings up to date the March 21, 2008, policy on medical procedures requiring heightened ORR involvement (hereinafter “Medical Procedures 2008 policy”) as it applies to unaccompanied alien children (“UAC”), as defined in 6 U.S.C. § 279(g)(2). ORR issued the Medical Procedures 2008 policy stating that certain decisions would require heightened ORR involvement and limited decision-making by grantees. This document updates the cross-references in the Medical Procedures 2008 policy and otherwise brings that policy up to date to reflect current policy, including policy on abortion.
General Policy
Serious medical services, including significant surgical or medical procedures, abortions, and services that may threaten the life of a UAC, require heightened ORR involvement and limited decision-making by grantees.
General Procedures
When a grantee learns that a UAC has been advised by a doctor to undergo or wishes to seek serious medical services requiring heightened ORR involvement (i.e., significant surgical or medical procedures, abortions, and services that may threaten the life of a UAC), the grantee must follow the procedures for Significant Incident Documentation and Reporting at section 5.8 of the ORR Policy Guide (https://www.acf.hhs.gov/orr/resource/children-entering-the-united-statesunaccompanied-section-5#5.8) and for Medical Services at section 3.4 (https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompaniedsection-3#3.4 ). In addition, for all serious medical services that require heightened ORR involvement other than abortions, the grantee must immediately notify the Deputy Director for Children’s Programs and provide all available details about the situation. If the grantee is uncertain whether a serious medical service requires heightened ORR involvement, the grantee should notify the Division of Health for Unaccompanied Children and request guidance.
As the situation progresses, grantees must respond to requests from the Deputy Director for Children’s Programs for information and updates as soon as possible and no later than within 24 hours of such requests. Further, for medical services and procedures governed by this policy other than abortion, grantees are prohibited from taking any actions in these cases without direction and approval from ORR. (Note: This does not include emergency medical situations. Follow procedures at section 3.4.5 for responding to medical emergencies.)
For all medical services and procedures governed by this policy (subject to the exceptions for abortion discussed below) in cases requiring heightened ORR involvement, ORR may contact or may require the grantee to contact the UAC’s parent or legal guardian. Depending upon the particular circumstances, ORR (or the grantee at ORR’s request) may inform the parent or legal guardian of the UAC’s medical situation and ask the parent or legal guardian how he/she wishes the situation to be resolved.

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Medical Related Costs
In instances where the cost of the medical procedure or the medical service requires a Treatment Authorization Request (TAR), the grantee must follow ORR policies related to obtaining a TAR, subject to any congressionally imposed appropriations restrictions. See ORR Policy Guide, 3.4.9 Provider Reimbursement (https://www.acf.hhs.gov/orr/resource/children-entering-the-unitedstates-unaccompanied-section-3#3.4.3.9).
Approval to cover the related costs in no way implies consent to conduct the procedure or provide the medical service when consent by a parent or legal guardian is required and cannot be obtained. In addition, ORR funds may not be used for legal services or court costs related to the case of a UAC seeking an abortion through a state judicial bypass procedure.
Procedures Specific to Requests for Abortion and Alignment with State Law:
Congress made the Secretary of HHS responsible for the care and custody of all unaccompanied alien children. 8 U.S.C. § 1232(b)(1).
Given the authority that Congress vested in HHS, the legal position of HHS is that state courts cannot lawfully compel the ORR federal staff or ORR care providers to: consent to the provision of abortions to UAC; bring UAC to state court; facilitate access to UAC by state-appointed guardians or attorneys ad litem; or provide a state court, or a state-appointed guardian or attorney ad litem, with access to federal records.
Nevertheless, HHS has determined as a matter of policy that HHS and ORR federal staff will exercise their delegated federal custodial authority in a manner informed by child welfare principles and in alignment with state law governing the conduct of medical providers who provide abortions to minors. For example, some states require that physicians provide parental notification of the intent to perform an abortion, receive a state judicial bypass order, or certify that a medical emergency exists, before providing an abortion to a minor. See, e.g., Tex. Occ. Code Ann. § 164.052; Tex. Fam. Code §§ 33.002, 33.003, 33.004. These statutory requirements typically apply to the physicians who provide the abortions and not to the parents, guardians, or conservators of the minors. See id.
If a state-licensed physician seeks consent from ORR or ORR care provider staff to provide an abortion to a UAC, the policy of ORR remains that “neither ORR nor the care provider may provide consent.”
If a physician seeks the assistance of ORR or ORR care provider staff in providing parental notification before performing an abortion, in compliance with state law, then ORR shall support the efforts of the physician to comply with state law. Such assistance may involve providing the parent’s last known contact information to the physician, or facilitating communication between the physician and the parent. Subject to the exceptions listed below, neither the ORR federal staff nor ORR care providers shall require parental notification of the UAC’s intent.

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If the UAC obtains a state judicial bypass order authorizing the physician to provide an abortion to the UAC, and the UAC still wishes to have the abortion, then the ORR federal staff shall not undertake actions to prevent the UAC from obtaining the abortion. In that scenario, the ORR federal staff shall instruct the care provider sheltering the UAC that it shall not take actions to prevent the UAC from obtaining the abortion.
If the physician certifies that a medical emergency exists, and the UAC still wishes to have the abortion, then the ORR federal staff shall not undertake actions to prevent the UAC from obtaining the abortion. The ORR federal staff shall instruct care providers that they shall not take actions to prevent a UAC from obtaining an abortion in the event of such certified medical emergency.
No Obstruction or Interference
ORR care providers must notify the ORR federal staff of any UAC who is pregnant or requesting an abortion using the Significant Incident Reporting mechanism in section 5.8 of the ORR Policy Guide. ORR federal staff and ORR care providers shall not take actions to obstruct or interfere with UAC access to state judicial bypass proceedings (however ORR is not required to fund representation in those hearings), non-directive options counseling, abortion counseling, or an abortion. ORR federal staff and ORR care providers shall ensure UAC have access to medical appointments related to pregnancy in the same way they would with respect to other medical conditions.
Notification
ORR federal staff and care providers shall not communicate information about a UAC’s pregnancy (including the fact of the pregnancy) or decision whether to have an abortion (before or after the abortion) to individuals other than staff members or the UAC, except that they may nevertheless communicate such information to an applicant or approved sponsor subject to the conditions discussed in the following paragraph, and to others if the UAC: needs emergency medical care and is unable to inform an emergency medical provider herself; or authorizes the ORR federal staff or care providers to communicate the information to a specific individual.
Nothing in this provision prohibits the ORR federal staff from communicating information to an applicant or approved sponsor regarding a serious health complication arising from pregnancy, birth or abortion that ORR finds in good faith the UAC may experience or require follow-up care to address after having been transferred to the custody of that applicant or approved sponsor. In addition, nothing in this provision prohibits the ORR federal staff from communicating information regarding the UAC’s pregnancy to an applicant or approved sponsor if the ORR federal staff has found in good faith that ORR must communicate the information to confirm that the applicant or approved sponsor can provide the financial and emotional support needed by the UAC associated with carrying the pregnancy to term, giving birth, and/or parenting.
If the ORR federal staff makes either finding in good faith, then they shall document the finding in a declaration executed pursuant to 28 U.S.C. § 1746, and shall document attempts to first secure the UAC’s consent to the disclosure and promptly notify the UAC when the disclosure has been made. Moreover, in all such cases, the information disclosed to the applicant or approved sponsor

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should be limited to that which is appropriate to ensure that the sponsor is equipped to adequately care for the UAC, and communicated as close to the conclusion of the sponsorship vetting and approval process as reasonably possible and in time to ensure the sponsor can provide the financial and emotional support needed by the UAC associated with carrying the pregnancy to term, giving birth, or parenting.
When an ORR care provider is required, as a matter of state licensing requirements, to communicate information about a UAC’s abortion-related decision to individuals other than the UAC, the ORR care provider acts in consultation with its own legal counsel and without the involvement of the ORR federal staff. The care provider will notify ORR of any communication with individuals other than the UAC that it makes pursuant to a state licensing requirement.
Applicability of Hyde Amendment
Nothing in this policy supersedes applicable Federal appropriations restrictions (known as the “Hyde Amendment”), prohibiting the Federal Government from paying for abortions other than in cases where the pregnancy is the result of an act of rape or incest; or in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed. See, e.g., sections 506 and 507, Title V of Pub. L. 116-94, “Further Consolidated Appropriations Act, 2020.” Nothing in this policy may be read to prohibit ORR or HHS from requesting documentation and otherwise reasonably ensuring that requests for Federal payment adhere to the Hyde Amendment restrictions.
Care Providers with Sincerely Held Religious Objections to Pregnancy Termination
Nothing in this policy prohibits ORR from providing accommodations to care providers who maintain a sincerely held religious objection to abortion. If a UAC in the care of such a provider is discovered to be pregnant, ORR’s field staff will personally deliver any legally required notice to the UAC orally and in writing, along with other pregnancy-related information required by ORR policy.

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Exhibit B

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Please read this notice
If you are pregnant, no one who works for the government or the shelter can stop you from accessing counseling about all the options you have regarding your pregnancy, including birth (for parenting or adoption) or abortion. You have the right to decide whether to continue your pregnancy and give birth or to have a legal abortion. If you want a legal abortion, no one who works for the government or the shelter can stop you from getting one. Depending on the location of your shelter, you might need permission from a judge to get an abortion. No one who works for the government or the shelter can stop you from going to court if you need to. No one who works for the government or the shelter can stop you from going to appointments related to your pregnancy, including appointments for prenatal care, birth (for parenting or adoption), or to obtain an abortion.
No one who works for the government or the shelter can tell anyone about your pregnancy or your decision whether to have an abortion, without your permission, except:
1) They can tell an emergency medical provider if you need emergency medical care and your medical condition prevents you from telling the emergency medical provider yourself.
2) The government can tell your sponsor information about your pregnancy or abortion, but only if your sponsor will need to know about your pregnancy or abortion to help you with a serious health complication after you are released to them or to make sure that your sponsor can support you with your pregnancy, having a baby, or being a parent. Before the government tells your sponsor information about your pregnancy or abortion, they must first try to ask for your permission to tell your sponsor and they must tell you after they have informed your sponsor.

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Por favor lea este aviso
Si está embarazada, ninguna persona que trabaje para el gobierno o el albergue puede impedir que usted tenga acceso a asesoramiento sobre todas las opciones que tiene con relación a su embarazo, incluyendo el nacimiento (para criar o dar en adopción) o el aborto. Usted tiene el derecho de decidir si quiere continuar su embarazo y dar a luz o tener un aborto legal. Si desea un aborto legal, ninguna persona que trabaje para el gobierno o el albergue puede impedir que usted lo consiga. Dependiendo de la ubicación de su albergue, es posible que usted necesite la autorización de un juez para realizarse un aborto. Ninguna persona que trabaje para el gobierno o el albergue puede impedir que usted vaya a un tribunal si es necesario. Ninguna persona que trabaje para el gobierno o el albergue puede impedir que usted vaya a las citas relacionadas con su embarazo, incluidas las citas de cuidado prenatal, para el nacimiento (ya sea para la crianza o adopción) o las citas para obtener un aborto.
Ninguna persona que trabaje para el gobierno o el albergue puede decirle a nadie acerca de su embarazo o decisión de obtener un aborto sin su autorización, excepto en las siguientes situaciones:
1) Le pueden decir a un proveedor de servicios médicos de emergencia si usted necesita cuidados médicos urgentes y su estado médico le impide a usted decírselo por sí misma al proveedor de los servicios médicos de emergencia.
2) El gobierno puede darle a su patrocinador información respecto a su embarazo o aborto, pero sólo si su patrocinador necesita saber sobre su embarazo o aborto para ayudarla a usted con una complicación grave de salud después de que usted haya sido transferida a su cuidado, o para asegurar de que su patrocinador la pueda ayudar con su embarazo, a tener un bebé, o en el aspecto de la crianza. Antes de que el gobierno le dé a su patrocinador información acerca de su embarazo o aborto, primero debe intentar pedirle su autorización para decirle esto a su patrocinador, y debe avisarle a usted cuando se lo haya informado a su patrocinador.