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. The case is 1

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.

_____________

As both parties agree, the court has jurisdiction over this 1

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-unitedstates-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-unitedstates-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/detentionstandards/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.) 1-

13 at 1. She has since remained in federal custody—in a 

federally funded shelter—because she is an “unaccompanied 

alien child.” 6 U.S.C. § 279(g)(2) (“unaccompanied alien 

child” is “a child who,” inter alia, “has no lawful immigration 

status in the United States” and “has not attained 18 years of 

age”).

The Office of Refugee Resettlement (ORR) of the United 

States Department of Health and Human Services (HHS) is 

responsible for “unaccompanied alien children who are in 

Federal custody by reason of their immigration status.” 6 

U.S.C § 279(b)(1)(A). In March 2008, HHS announced a 

“[p]olicy” that “[s]erious medical services, including . . . 

abortions, . . . require heightened ORR involvement.” HHS, 

Medical Services Requiring Heightened ORR Involvement

(Mar. 21, 2008), perma.cc/LDN8-JNL5. In March 2017, 

consistent with that policy, ORR further announced that shelter 

personnel “are prohibited from taking any action that facilitates 

an abortion without direction and approval from the Director 

of ORR.” Dkt. No. 3-5 at 2.

According to the declaration of an ORR official, J.D. was 

physically examined while in custody and “was informed that 

she [is] pregnant.” Dkt. No. 10-1 at 2. J.D.’s counsel interprets 

the declaration to say that “J.D. did not learn that she was 

pregnant until after her arrival in the United States.” Pl.’s Opp. 

to Defs.’ Emergency Mot. for Stay Pending Appeal (Opp.) 22-

23; see also Panel Dissent of Millett, J. (Panel Dissent) 2 

(“After entering the United States, [J.D.] . . . learned that she is 

pregnant.”). But the declaration does not rule out that J.D. 

knew she was pregnant even before the examination. Nor has 

J.D. herself alleged that she first learned of her pregnancy in 

this country. See generally Dkt. No. 1-13 at 1 (J.D.’s 
3

declaration in support of complaint). And it is highly likely she 

knew when she attempted to enter the United States that she 

was pregnant, as she was at least eight weeks pregnant at the 

time.1

 Notably, elective abortion is illegal in J.D.’s home 

country. Oral Arg. Recording 29:19-29:34.

J.D. requested an abortion. The evidence before us is that 

it is an elective abortion: nothing indicates it is necessary to 

preserve J.D.’s health.2

 J.D.’s request was relayed to the ORR 

Director, who denied it. On October 13, 2017—having spent a 

mere 36 days in the United States, all of them in custody—J.D.

filed suit in district court, enlisting this country’s courts to 

vindicate (inter alia) her alleged Fifth Amendment right to an 

abortion. The next day, she applied for a temporary restraining 

order (TRO) and moved for a preliminary injunction.

The government opposed J.D.’s application and motion. 

For reasons known only to the government, it did not take a 

position on whether J.D.—as an alien who attempted to enter 

the United States illegally and who has no substantial 

connections with this country—has any constitutional right to

an abortion. Instead the government argued that ORR has

placed no “undue burden” on the alleged right. Dkt. No. 10 at 

11-16 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 

833 (1992)). At the TRO hearing, the district court repeatedly

pressed the government about whether J.D. has a constitutional 

right to an abortion. The government emphasized that it was 

 1

 A recent declaration filed under seal by J.D.’s attorney ad 

litem provides further circumstantial evidence that J.D. left her home 

country because of her pregnancy. Cortez Decl. ¶ 8.

2

 At oral argument, HHS stated its policy is that an emergency 

abortion, which it interprets to include a “medically necessary” 

abortion, would be allowed. Oral Arg. Recording 20:00-20:27.
4

“not taking a . . . position” but was “not going to give [the court] 

a concession” either. Opp., Supplement 14.

The district court issued a TRO requiring that the 

government allow J.D. to be transported to an abortion provider 

for performance of the procedure. The government appealed 

the TRO to this Court and sought a stay pending appeal. At 

oral argument, the government repeatedly stated that it takes no 

position on whether J.D. has a constitutional right to an 

abortion, Oral Arg. Recording 8:10-8:46, 16:43-17:12, and that 

it instead “assume[s] for the purposes of . . . argument” that she 

has such a right, Oral Arg. Recording 17:27-17:52.

3

On October 20, 2017, over a dissent, a motions panel of 

this Court issued an order directing the district court to allow 

HHS until close of business October 31 to find a suitable 

sponsor to take custody of J.D. so that HHS can release her 

from its custody. Without deciding whether J.D. has a 

constitutional right to an abortion, the panel concluded that a 

short delay to secure a sponsor does not unduly burden any

alleged right if the process is expeditiously completed by close 

of business October 31.

 3

 Under insistent pressure to state whether the government was 

“waiving” the issue, counsel for the government said yes in the heat 

of the moment. Oral Arg. Recording 17:41-17:52. But the next 

moment, when reminded of the difference between forfeiture and 

waiver—a distinction that lawyers often overlook or misunderstand, 

cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (even “jurists 

often use the words interchangeably”)—counsel effectively retracted 

the foregoing statement, saying she was “not authorized to take a 

position” on whether J.D. has a constitutional right to an abortion,

Oral Arg. Recording 17:52-18:51.
5

On October 22, 2017, J.D. filed a petition for rehearing en 

banc. Today, the Court grants the petition, vacates the panel’s 

October 20 order and denies the government’s motion for stay 

pending appeal “substantially for the reasons set forth in” the 

panel dissent.

II. ANALYSIS

As I noted at the outset, the en banc Court’s decision in 

effect means that a pregnant alien minor who attempts to enter 

the United States illegally is entitled to an abortion, assuming 

she complies with state abortion restrictions once she is here. 

Although the government has for some reason failed to dispute 

that proposition, it is not the law.

A. WE CAN AND MUST DECIDE THE ANTECEDENT 

QUESTION OF WHETHER J.D. HAS A CONSTITUTIONAL 

RIGHT TO AN ABORTION.

The Supreme Court has held that if a party “fail[s] to 

identify and brief” “an issue ‘antecedent to . . . and ultimately 

dispositive of’ the dispute,” an appellate court may consider the 

issue sua sponte. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents 

of Am., Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v. Ohio 

Power Co., 498 U.S. 73, 77 (1990)); cf. United States v. Bowie, 

198 F.3d 905, 913 (D.C. Cir. 1999) (“We are never bound to 

accept the government’s confession of error” (citing Young v. 

United States, 315 U.S. 257, 258 (1942), United States v. 

Pryce, 938 F.2d 1343, 1351-52 (D.C. Cir. 1991) (Randolph, J., 

concurring))). Here, the question of whether J.D. has a 

constitutional right to an abortion is “antecedent to” any issue

of undue burden. And the antecedent question is “dispositive 

of” J.D.’s Fifth Amendment claim, at least now that my 

colleagues have reinstated the TRO on the apparent theory that 

the claim is likely meritorious. Accordingly, we can and 

should expressly decide the antecedent question.
6

True, we should not ordinarily confront a broad 

constitutional question “if there is also present some other 

ground upon which the case may be disposed of,” Ashwander 

v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), 

including if the alternative is a “narrower” constitutional 

ground, Greater New Orleans Broad. Ass’n v. United States, 

527 U.S. 173, 184 (1999).4 But in the analogous context of 

qualified immunity, we are “permitted . . . to avoid 

avoidance—that is, to determine whether a right exists before 

examining” the narrower question of whether the right “was 

clearly established” at the time an official acted. Camreta v. 

Greene, 563 U.S. 692, 706 (2011). Our discretion in that area 

rests on the recognition that it “is sometimes beneficial to 

clarify the legal standards governing public officials.” Id. at 

707. The same interest is, to put it mildly, implicated here. 

Border authorities, immigration officials and HHS itself would 

be well served to know ex ante whether pregnant alien minors 

who come to the United States in search of an abortion are 

constitutionally entitled to one. And under today’s decision, 

pregnant alien minors the world around seeking elective 

abortions will be on notice that they should make the trip.5

 4

 We cannot duck a broad constitutional question if the 

alternative ground is not “an adequate basis for decision.” Greater 

New Orleans Broad. Ass’n, 527 U.S. at 184. At the panel stage, the 

possibility of expeditious sponsorship was an adequate narrower 

basis for our decision to briefly delay J.D.’s abortion. By contrast, 

today’s result—which has the real-world effect of entitling J.D. to an 

abortion—is difficult to explain unless it rests at least in part on the 

proposition that J.D. has a constitutional right to an abortion. Even 

if I were to assume, without in any way conceding, that J.D. had such

a constitutional right, I would nonetheless stand by the panel order.

5 The panel dissent paid lip service to constitutional avoidance, 

Panel Dissent 8, before sweepingly declaring that when alien minors 
7

Granted, because of the government’s failure to take a 

position,

6 we in theory have discretion not to decide the 

antecedent question. But in reality the ship has sailed: as a 

result of my colleagues’ decision, J.D. will soon be on her way 

to an abortion procedure she would not receive absent her 

invocation of the Fifth Amendment. If ever there were a case 

in which the public interest compels us to exercise our 

“independent power to identify and apply the proper 

construction of governing law” irrespective of a party’s 

litigating position, U.S. Nat’l Bank of Or., 508 U.S. at 446 

(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 

 

“find themselves on our shores and pregnant” and seeking an 

abortion, “the Constitution forbids the government from directly or 

effectively prohibiting their exercise of that right in the manner it has 

done here.” Panel Dissent 9-10 (emphases added). That is not 

judicial modesty.

6

 I could not disagree more strongly with Judge Millett’s 

characterization of the government’s position on the merits—i.e., 

that it outright “waived” any contention that J.D. has no 

constitutional right to an abortion. Millett Concurrence 2-3 n.1. She 

must have read different papers and listened to a different argument 

from the ones I read and listened to. A waived argument “is one that 

a party has knowingly and intelligently relinquished.” Wood v. 

Milyard, 132 S. Ct. 1826, 1832 n.4 (2012). The government has 

declared time and again that it is not taking a position on whether 

J.D. has a constitutional right to an abortion. That is not waiver. 

Government counsel in the district court stated that he was neither 

raising nor conceding the point. That is not waiver. Government 

counsel in this Court stated that she lacked authority to take a 

position. That, too, is not waiver: counsel who disclaims such 

authority cannot relinquish an argument any more than she can 

advance one. All this is beside the point, however, because of our 

independent duty to declare the law. See U.S. Nat’l Bank of Or., 508 

U.S. at 446.
8

(1991)), this is it. The stakes, both in the short run and the long, 

could scarcely be higher.

B. J.D. HAS NO CONSTITUTIONAL RIGHT

TO AN ABORTION.

J.D. is not a U.S. citizen. She is not a permanent resident, 

legal or otherwise. According to the record, she has no 

connection to the United States, let alone “substantial” 

connections. Despite her physical presence in the United 

States, J.D. has never entered the United States as a matter of 

law and cannot avail herself of the constitutional rights 

afforded those legally within our borders. Accordingly, under 

a correct interpretation of the law, J.D. has virtually no 

likelihood of success on the merits and the TRO issued by the 

district court should remain stayed. See Mazurek v. Armstrong, 

520 U.S. 968, 970 (1997) (preliminary injunctive relief 

unavailable if the plaintiff cannot establish a likelihood of 

success on the merits).

“The distinction between an alien who has effected an 

entry into the United States and one who has never entered runs 

throughout immigration law.” Zadvydas v. Davis, 533 U.S. 

678, 693 (2001). Thus a young girl detained at Ellis Island for 

a year, and then released to live with her father in the United 

States for nearly a decade, “was to be regarded as stopped at 

the boundary line and kept there unless and until her right to 

enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230 

(1925). Even after she was no longer detained, “[s]he was still 

in theory of law at the boundary line and had gained no 

foothold in the United States.” Id. Nearly six decades ago the 

Supreme Court had already said that “[f]or over a half century 

this Court has held that the detention of an alien in custody 

pending determination of his admissibility does not legally 

constitute an entry though the alien is physically within the 
9

United States.” Leng May Ma v. Barber, 357 U.S. 185, 188 

(1958).

Aliens who have entered the United States—even if 

illegally—enjoy “additional rights and privileges not extended 

to those . . . who are merely ‘on the threshold of initial entry.’” 

Id. at 187 (quoting Shaughnessy v. United States ex rel. Mezei, 

345 U.S. 206, 212 (1953)). “[A]liens receive constitutional 

protections when they have come within the territory of the 

United States and developed substantial connections with this 

country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 

271 (1990). Until then—before developing the “substantial 

connections” that constitute “entry” for an illegally present 

alien—“[t]he Bill of Rights is a futile authority for the alien 

seeking admission for the first time to these shores.” Bridges 

v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring).

We have repeatedly recognized this principle, as have our 

sister circuits and, most important, as has the Supreme Court. 

See Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., 

concurring in the judgment); Demore v. Kim, 538 U.S. 510, 546 

(2003); Shaughnessy, 345 U.S. at 215; Kaplan, 267 U.S. at 

230; United States v. Ju Toy, 198 U.S. 253, 263 (1905) (alien 

petitioner, “although physically within our boundaries, is to be 

regarded as if he had been stopped at the limit of our 

jurisdiction, and kept there while his right to enter was under 

debate”); Kiyemba v. Obama, 555 F.3d 1022, 1036-37 n.6 

(D.C. Cir. 2009) (Rogers, J., concurring in the judgment) 

(quoting Mezei, Leng May Ma and Ju Toy in support of 

proposition that habeas court can order detainee brought within 

U.S. territory without thereby effecting detainee’s “entry” for 

any other purpose), vacated on other grounds, 559 U.S. 131 

(2010); Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 

1374, 1383 (D.C. Cir. 1990) (Sentelle, J., concurring) 
10

(summarizing the entry doctrine).7 Because she has never 

entered the United States, J.D. is not entitled to the due process 

protections of the Fifth Amendment. See Albathani v. INS, 318 

F.3d 365, 375 (1st Cir. 2003) (“As an unadmitted alien present 

in the United States, Albathani’s due process rights are 

limited”). This is, or should be, clear from the controlling and 

 7

 See also Albathani v. INS, 318 F.3d 365, 375 (1st Cir. 2003); 

Nwozuzu v. Holder, 726 F.3d 323, 330 n.6 (2d Cir. 2013) (discussing 

Kaplan); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954) 

(“in a literal and physical sense a person coming from abroad enters 

the United States whenever he reaches any land, water or air space 

within the territorial limits of this nation” but “those who have come 

from abroad directly to [an inspection] station seeking admission in 

regular course have not been viewed by the courts as accomplishing 

an ‘entry’ by crossing the national boundary in transit or even by 

arrival at a port so long as they are detained there pending formal 

disposition of their requests for admission”); United States v. 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 2139-

40 (Kennedy, J., concurring in the judgment); Kleindienst v. 

Mandel, 408 U.S. 753, 769-70 (1972).

Mandel teaches that the Congress’s “plenary power” over 

immigration requires the courts to strike a balance between 

private and public interests different from the due process that 

typically obtains. The Supreme Court “without exception has 

sustained” the Congress’s power to exclude aliens, a power 
12

“inherent in sovereignty,” consistent with “ancient principles” 

of international law and “to be exercised exclusively by the 

political branches of government.” Mandel, 408 U.S. at 765-

66. Indeed, “over no conceivable subject is the legislative 

power of Congress more complete.” Id. at 766 (quoting 

Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 

(1909)) (alteration omitted). The Congress’s power to exclude 

includes the power “to prescribe the terms and conditions upon 

which [aliens] may come to this country, and to have its 

declared policy in that regard enforced exclusively through 

executive officers, without judicial intervention.” Id. (quoting 

Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895)). 

Whatever the merits of different applications of due process 

“were we writing on a clean slate,” “the slate is not clean.” Id. 

(quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). We must 

therefore yield to the Executive, exercising the power lawfully

delegated to him, when he “exercises this power negatively on 

the basis of a facially legitimate and bona fide reason.” Id. at 

770. Moreover, this deference is required even when the 

constitutional rights of U.S. citizens are affected: we may not 

“look behind the exercise of that discretion, nor test it by 

balancing its justification against the First Amendment 

interests” of citizens “who seek personal communication with” 

the excluded alien. Id. Thus in Mandel, the Executive 

permissibly prohibited an alien communist intellectual to travel 

to the United States, where he had been scheduled to speak at 

several universities. 

Applying Mandel, the Supreme Court recently approved 

the Executive’s denial of entry to an Afghan man whose U.S.-

citizen wife was waiting for him in this country. Din, 135 S. 

Ct. at 2131 (plurality opinion). The Court in Din was divided 

not only over whether the wife had any due process interest in 

her husband’s attempt to immigrate but also over whether that 

hypothetical interest had been infringed. Compare id.
13

(plurality opinion) (three justices concluding that there is no

due process right “to live together with [one’s] spouse in 

America”), with id. at 2139 (Kennedy, J., concurring in the 

judgment) (two justices concluding that, even if such a right 

exists, the Government’s visa-denial notice is all that due 

process can require). Citing Mandel, Justice Kennedy reasoned 

that the government’s action in Din was valid, even though it 

“burden[ed] a citizen’s own constitutional rights,” because it 

was made “on the basis of a facially legitimate and bona fide 

reason.” Id. at 2139 (Kennedy, J., concurring in the judgment) 

(quoting Mandel, 408 U.S. at 770).8

 Justice Scalia, writing for 

himself, the Chief Justice and Justice Thomas, criticized the 

dissent’s endorsement of the novel substantive due process 

right asserted by the plaintiff, which he characterized as, “in 

any world other than the artificial world of ever-expanding 

constitutional rights, nothing more than a deprivation of her 

spouse’s freedom to immigrate into America.” Id. at 2131 

(plurality opinion). 

Mandel applies with all the more force here, where a 

substantive due process right is asserted not by a U.S. citizen, 

nor by a lawful-permanent-resident alien, nor even by an 

illegally resident alien, but by an alien minor apprehended 

attempting to cross the border illegally and thereafter detained 

by the federal government. If J.D. can be detained 

indefinitely—which she can be, see Zadvydas, 533 U.S. at 693

(distinguishing Shaughnessy, 345 U.S. 206)—and if she can be 

returned to her home country to prevent her from engaging in 

disfavored political speech in this country—which she can be, 

Mandel, 408 U.S. at 770—and if she can be paroled into the 

United States for a decade or more, Kaplan, 267 U.S. at 230, 

 8

 Justice Kennedy’s opinion in Din, because it is narrower than 

the plurality opinion, is controlling. See Marks v. United States, 430 

U.S. 188, 193 (1977).
14

register for the draft, Ng Lin Chong v. McGrath, 202 F.2d 316, 

317 (D.C. Cir. 1952), and see her parents naturalized, Gonzalez 

v. Holder, 771 F.3d 238, 239 (5th Cir. 2014), only for her still

to be deported with cursory notice, 8 U.S.C. § 1225—then she 

cannot successfully assert a due process right to an elective 

abortion.

In concluding otherwise, the Court elevates the right to 

elective abortion above every other constitutional entitlement. 

Freedom of expression, Mandel, 408 U.S. at 770, freedom of

association, Galvan, 347 U.S. at 523, freedom to keep and bear 

arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir. 

2012), freedom from warrantless search, Verdugo-Urquidez, 

494 U.S. at 274-75, and freedom from trial without jury, 

Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) all must 

yield to the “plenary authority” of the Congress and the 

Executive, acting in concert, to regulate immigration; but the 

freedom to terminate one’s pregnancy is more fundamental 

than them all? This is not the law.9

 9

 The panel dissent simply assumed that the Supreme Court’s 

abortion decisions involving U.S. citizen women—from Roe v. Wade

to Whole Woman’s Health—apply mutatis mutandis to illegal alien 

minors. There is no legal analysis to support this assumption, see

generally Panel Dissent 3-6, which is untenable for the reasons I have 

described. Judge Millett’s subsequent opinion concurring in the 

Court’s en banc disposition does nothing to address that deficit, 

offering scarce authority to support its assertion of the thwarting of 

a “grave constitutional wrong” by the government and none that 

addresses the antecedent constitutional question, which the Court 

must decide but which Judge Millett dismisses as waived. Millett 

Concurrence 2-3 n.1.
15

The panel dissent warned of outlandish scenarios that will 

follow from staying the TRO,

10 Panel Dissent 9, but a stay 

maintains the legal status quo. The United States remains a 

signatory to the U.N. Convention Against Torture; our law 

imposes civil liability on government agents who commit torts 

and criminal liability on those who commit crimes; and counsel 

have access to detained alien minors, as have J.D.’s counsel. 

 

I cannot improve on the Chief Justice’s criticism of the “false 

premise” that

our practice of avoiding unnecessary (and 

unnecessarily broad) constitutional holdings 

somehow trumps our obligation faithfully to 

interpret the law. It should go without saying, 

however, that we cannot embrace a narrow ground 

of decision simply because it is narrow; it must also 

be right. Thus while it is true that “[i]f it is not 

necessary to decide more, it is necessary not to 

decide more,” sometimes it is necessary to decide 

more. There is a difference between judicial 

restraint and judicial abdication. When 

constitutional questions are “indispensably 

necessary” to resolving the case at hand, “the court 

must meet and decide them.”

Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J., 

concurring) (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (No. 

11,558) (CC Va. 1833) (Marshall, C.J.)).

10 My colleague’s characterization of this case, see, e.g., Millett 

Concurrence 13, gives it an undeservedly melodramatic flavor—and 

indeed, from the record, especially the sealed affidavit of ORR’s 

Jonathan White, is contrary to fact. Sealed Supp. to Defs.’ Resp. to 

Pl.’s Pet. for Reh’g En Banc (Oct. 23, 2017). J.D. may be 

sympathetic. But even the sympathetic are bound by longstanding 

law. 
16

The Constitution does not, and need not, answer every question 

but diabetics, rape victims and women whose pregnancies 

threaten their lives are nevertheless provided for. Contra Panel

Dissent 9.

Although the panel dissent found “deeply troubling” the 

argument “that J.D. is not a person in the eyes of our 

Constitution,” the argument is nevertheless correct.11 The 

panel dissent’s contrary conclusion is based on a 

misunderstanding of the Supreme Court’s immigration due 

process decisions, including a mistaken reliance on the dissent 

in Jean v. Nelson, 472 U.S. 846, 875 (1985) (Marshall, J., 

dissenting). Writing for the Court in Jean, then-Justice 

Rehnquist expressly declined to opine on the alien plaintiffs’ 

due process rights, see id. at 857 (majority opinion), much less 

to hold—as Justice Marshall would have done—that 

“regardless of immigration status, aliens within the territorial 

jurisdiction of the United States are ‘persons’ entitled to due 

process under the Constitution.” The Supreme Court has never 

so held.12 Contra Panel Dissent 9. 

 11 J.D.’s “personhood” has nothing to do with it. “American 

citizens conscripted into the military service are thereby stripped of 

their Fifth Amendment rights and as members of the military 

establishment are subject to its discipline, including military trials for 

offenses against aliens or Americans.” Eisentrager, 339 U.S. at 783. 

No one suggests that members of the military—or here, J.D.—are 

thereby not “persons.”

12 The panel dissent’s handling of Zadvydas v. Davis also merits 

clarification. See Panel Dissent 9. Zadvydas is careful to distinguish 

“an alien who has effected an entry into the United States and one 

who has never entered” and restates Kaplan’s holding that “despite 

nine years’ presence in the United States, an ‘excluded’ alien ‘was 

still in theory of law at the boundary line and had gained no foothold 

in the United States’” only three sentences before observing, in the 
17

It is the panel dissent’s (and now the Court’s) position that 

will unsettle the law, potentially to dangerous effect. Having 

discarded centuries of precedent and policy, the majority offers 

no limiting principle to constrain this Court or any other from 

following today’s decision to its logical end. If the Due Process 

Clause applies to J.D. with full force, there will be no reason 

she cannot donate to political campaigns, despite 52 U.S.C. § 

30121’s prohibition on contributions by nonresident foreign 

nationals inasmuch as freedom of political expression is plainly 

fundamental to our system of ordered liberty. See Citizens 

United v. FEC, 558 U.S. 310, 340 (2010). I see no reason that

she may not possess a firearm, notwithstanding 18 U.S.C. 

§ 922(g)(5)’s prohibition on doing so while “illegally or 

unlawfully in the United States,” see Carpio-Leon, 701 F.3d at 

975, inasmuch as “the Second Amendment conferred an 

individual right to keep and bear arms,” District of Columbia 

v. Heller, 554 U.S. 570, 595 (2008), in recognition of the “basic 

right” of self-defense, McDonald v. City of Chicago, 561 U.S. 

742, 767 (2010). Even the government’s ability to try accused 

war criminals before U.S. military commissions in theater must 

be reconsidered as it is premised on the Fifth Amendment’s 

territoriality requirement, which today, by vacating the stay, 

the Court has so summarily eroded. See Eisentrager, 339 U.S. 

at 784-85.

Heedless of the entry doctrine, its extensive pedigree in 

our own precedent and its controlling effect in this case, the 

Court today assumes away the question of what (if any) process 

is due J.D. and proceeds to a maximalist application of some of 

the most controverted case law in American jurisprudence. It 

does so over the well-founded objections of an Executive 

 

passage quoted by the panel dissent, that “once an alien enters the 

country, the legal circumstance changes.” Zadvydas, 533 U.S. at 693

(emphasis added). Zadvydas uses “entry” in its technical sense.
18

authorized to pursue its legitimate interest in protecting fetal 

life. See Gonzales v. Carhart, 550 U.S. 124, 145 (2007) (“the 

government has a legitimate and substantial interest in 

preserving and promoting fetal life”); Casey, 505 U.S. at 853 

(recognizing States’ “legitimate interests in protecting prenatal 

life”); Roe v. Wade, 410 U.S. 113, 150 (1973) (recognizing “the 

State’s interest—some phrase it in terms of duty—in protecting 

prenatal life”). Far from faithfully applying the Supreme 

Court’s abortion cases, this result contradicts them, along with 

a host of immigration and due-process cases the Court declines 

even to acknowledge. Garza v. Hargan today takes its place in 

the pantheon of abortion-exceptionalism cases.

Accordingly, I respectfully dissent.
KAVANAUGH, Circuit Judge, with whom Circuit Judges

HENDERSON and GRIFFITH join, dissenting: 

The en banc majority has badly erred in this case. 

The three-judge panel held that the U.S. Government, 

when holding a pregnant unlawful immigrant minor in custody, 

may seek to expeditiously transfer the minor to an immigration 

sponsor before the minor makes the decision to obtain an 

abortion. That ruling followed from the Supreme Court’s many 

precedents holding that the Government has permissible 

interests in favoring fetal life, protecting the best interests of a 

minor, and refraining from facilitating abortion. The Supreme 

Court has repeatedly held that the Government may further 

those interests so long as it does not impose an undue burden 

on a woman seeking an abortion. 

Today’s majority decision, by contrast, “substantially” 

adopts the panel dissent and is ultimately based on a 

constitutional principle as novel as it is wrong: a new right for 

unlawful immigrant minors in U.S. Government detention to 

obtain immediate abortion on demand, thereby barring any 

Government efforts to expeditiously transfer the minors to their 

immigration sponsors before they make that momentous life 

decision. The majority’s decision represents a radical 

extension of the Supreme Court’s abortion jurisprudence. It is

in line with dissents over the years by Justices Brennan, 

Marshall, and Blackmun, not with the many majority opinions 

of the Supreme Court that have repeatedly upheld reasonable 

regulations that do not impose an undue burden on the abortion 

right recognized by the Supreme Court in Roe v. Wade.

1

 

 1

 The majority’s decision rules against the Government 

“substantially for the reasons set forth in” the panel dissent. Given 

this ambiguity, the precedential value of this order for future cases 

will be debated. But for present purposes, we have no choice but to 
2 

 To review: Jane Doe is 17 years old. She is a foreign 

citizen. Last month, she was detained shortly after she illegally 

crossed the border into Texas. She is now in a U.S. 

Government detention facility in Texas for unlawful immigrant 

minors. She is 15-weeks pregnant and wants to have an 

abortion. Her home country does not allow elective abortions. 

All parties to this case recognize Roe v. Wade and Planned 

Parenthood v. Casey as precedents we must follow. All parties 

have assumed for purposes of this case, moreover, that Jane 

Doe has a right under Supreme Court precedent to obtain an 

abortion in the United States. One question before the en banc

Court at this point is whether the U.S. Government may 

expeditiously transfer Jane Doe to an immigration sponsor 

before she makes the decision to have an abortion. Is that an 

undue burden on the abortion right, or not? 

Contrary to a statement in the petition for rehearing en 

banc, the three-judge panel’s order did not avoid that question. 

The panel confronted and resolved that question. 

First, the Government has assumed, presumably based on 

its reading of Supreme Court precedent, that an unlawful 

immigrant minor such as Jane Doe who is in Government 

custody has a right to an abortion. The Government has also 

expressly assumed, again presumably based on its reading of 

Supreme Court precedent, that the Government lacks authority 

to block Jane Doe from obtaining an abortion. For purposes of 

 

assume that the majority agrees with and adopts the main reasoning 

for the panel dissent. Otherwise, the majority would have no 

explanation for the extraordinary step it is taking today. For

accuracy, I therefore use the word “majority” when describing the 

main points of the panel dissent. (If any members of the majority 

disagreed with any of the main points of the panel dissent, they were 

of course free to say as much.) 
3 

this case, all parties have assumed, in other words, that 

unlawful immigrant minors such as Jane Doe have a right under 

Supreme Court precedent to obtain an abortion in the United 

States. 

Second, under Supreme Court precedent in analogous 

contexts, it is not an undue burden for the U.S. Government to 

transfer an unlawful immigrant minor to an immigration 

sponsor before she has an abortion, so long as the transfer is 

expeditious. 

For minors such as Jane Doe who are in U.S. Government 

custody, the Government has stated that it will not provide, pay 

for, or otherwise facilitate the abortion but will transfer custody 

of the minor to a sponsor pursuant to the regular immigration 

sponsor program. Under the regular immigration sponsor 

program, an unlawful immigrant minor leaves Government 

custody and ordinarily goes to live with or near a sponsor. The 

sponsor often is a family member, relative, friend, or 

acquaintance. Once Jane Doe is transferred to a sponsor in this 

case, the Government accepts that Jane Doe, in consultation 

with her sponsor if she so chooses, will be able to decide to 

carry to term or to have an abortion.2

The panel order had to make a decision about how 

“expeditious” the transfer had to be. Given the emergency 

posture in which this case has arisen, the panel order prudently 

did not purport to define “expeditious” for all future cases. But 

the panel order set a date of October 31 – which is 7 days from

now – by which the transfer had to occur. For future cases, the 

term “expeditious” presumably would entail some combination 

of (i) expeditious from the time the Government learns of the 

 2

 The minor of course also has to satisfy whatever state-law 

requirements are imposed on the decision to obtain an abortion. 
4 

pregnant minor’s desire to have an abortion and (ii) expeditious 

in the sense that the transfer to the sponsor does not occur too 

late in the pregnancy for a safe abortion to occur.3 In this case, 

although the process by which the case has arrived here has 

been marked by understandable confusion over the law and by 

litigation filed by plaintiff in multiple forums, the panel order 

concluded that a transfer by October 31 – which is 7 days from 

now – was permissibly expeditious. This would entail transfer 

in week 16 or 17 of Jane Doe’s pregnancy, and the Government 

agrees that she could have the abortion immediately after 

transfer, if she wishes. 

Third, what happens, however, if a sponsor is not found by 

October 31 in this case? What happens generally if transfer to

a sponsor does not occur expeditiously? To begin with, a 

declaration we just received from the Government states: 

“while difficult, it is possible to complete a sponsorship process 

for J.D. by 5 P.M. Eastern on October 31, 2017.” The 

declaration also lists several ongoing efforts regarding the 

sponsorship process. The declaration adds that all components 

of the U.S. Government “are willing to assist in helping 

expedite the process.” 

But if transfer does not work, given existing Supreme 

Court precedent and the position the Government has so far 

advanced in this litigation, it could turn out that the 

Government will be required by existing Supreme Court 

precedent to allow the abortion, even though the minor at that 

point would still be residing in a U.S. Government detention 

facility. If so, the Government would be in a similar position

as it is in with adult women prisoners in federal prison and with 

 3

 To be clear, under Supreme Court precedent, the Government 

cannot use the transfer process as some kind of ruse to unreasonably 

delay the abortion past the point where a safe abortion could occur. 
5 

adult women unlawful immigrants in U.S. Government 

custody. The U.S. Government allows women in those 

circumstances to obtain an abortion. In any event, we can 

immediately consider any additional arguments from the 

Government if and when transfer to a sponsor is unsuccessful. 

In sum, under the Government’s arguments in this case and 

the Supreme Court’s precedents, the unlawful immigrant minor 

is assumed to have a right under precedent to an abortion; the 

Government may seek to expeditiously transfer the minor to a 

sponsor before the abortion occurs; and if no sponsor is 

expeditiously located, then it could turn out that the 

Government will be required by existing Supreme Court 

precedent to allow the abortion, depending on what arguments 

the Government can make at that point. These rules resulting 

from the panel order are consistent with and dictated by 

Supreme Court precedent. 

The three-judge panel reached a careful decision that 

prudently accommodated the competing interests of the parties. 

By contrast, under the panel dissent, which is 

“substantially” adopted by the majority today, the Government 

has to immediately allow the abortion upon the request of an 

unlawful immigrant minor in its custody, and cannot take time 

to first seek to expeditiously transfer the minor to an immigrant 

sponsor before the abortion occurs.4

 

 4

 The majority’s order denies the Government’s emergency 

motion for stay pending appeal and thus does not disturb the District 

Judge’s injunction (with adjusted dates), which required the 

Government to facilitate an immediate abortion for Jane Doe. 

Therefore, unless the Government can somehow convince the 

District Judge to suddenly reconsider her decision, which is 

extremely unlikely given the District Judge’s prior ruling on this 

matter, the majority’s order today necessarily means that the 
6 

The majority seems to think that the United States has no 

good reason to want to transfer an unlawful immigrant minor 

to an immigration sponsor before the minor has an abortion. 

But consider the circumstances here. The minor is alone and 

without family or friends. She is in a U.S. Government 

detention facility in a country that, for her, is foreign. She is 

17 years old. She is pregnant and has to make a major life 

decision. Is it really absurd for the United States to think that 

the minor should be transferred to her immigration sponsor – 

ordinarily a family member, relative, or friend – before she 

makes that decision? And keep in mind that the Government 

is not forcing the minor to talk to the sponsor about the 

decision, or to obtain consent. It is merely seeking to place the 

minor in a better place when deciding whether to have an 

abortion. I suppose people can debate as a matter of policy 

whether this is always a good idea. But unconstitutional? That 

is far-fetched. After all, the Supreme Court has repeatedly said 

that the Government has permissible interests in favoring fetal

life, protecting the best interests of the minor, and not 

facilitating abortion, so long as the Government does not 

impose an undue burden on the abortion decision. 

It is important to stress, moreover, that this case involves 

a minor. We are not dealing with adults, although the 

majority’s rhetoric speaks as if Jane Doe were an adult. The 

law does not always treat minors in the same way as adults, as 

the Supreme Court has repeatedly emphasized in the abortion 

context. 

The majority points out that, in States such as Texas, the 

minor will have received a judicial bypass. That is true, but is 

irrelevant to the current situation. The judicial bypass confirms 

 

Government must allow an immediate abortion while Jane Doe 

remains in Government custody. 
7 

that the minor is capable of making a decision. For most 

teenagers under 18, of course, they are living in the State in 

question and have a support network of friends and family to 

rely on, if they choose, to support them through the decision 

and its aftermath, even if the minor does not want to inform her 

parents or her parents do not consent. For a foreign minor in 

custody, there is no such support network. It surely seems 

reasonable for the United States to think that transfer to a 

sponsor would be better than forcing the minor to make the 

decision in an isolated detention camp with no support network 

available. Again, that may be debatable as a matter of policy. 

But unconstitutional? I do not think so. 

The majority apparently thinks that the Government must 

allow unlawful immigrant minors to have an immediate 

abortion on demand. Under this vision of the Constitution, the

Government may not seek to first expeditiously transfer the 

minor to the custody of an immigration sponsor before she has 

an abortion.5

 The majority’s approach is radically inconsistent 

with 40 years of Supreme Court precedent. The Supreme Court 

has repeatedly upheld a wide variety of abortion regulations 

that entail some delay in the abortion but that serve permissible 

Government purposes. These include parental consent laws, 

parental notice laws, informed consent laws, and waiting 

periods, among other regulations. Those laws, of course, may 

have the effect of delaying an abortion. Indeed, parental 

consent laws in practice can occasion real-world delays of 

several weeks for the minor to decide whether to seek her 

 5

 The precedential value of the majority’s decision for future 

cases is unclear and no doubt will be the subject of debate. But one 

limit appears clear and warrants mention: The majority’s decision 

requires the Government to allow the abortion even while the minor 

is residing in Government custody, but it does not require the 

Government to pay for the abortion procedure itself. The 

Government’s policy on that issue remains undisturbed. 
8 

parents’ consent and then either to obtain that consent or 

instead to seek a judicial bypass. Still, the Supreme Court has 

upheld those laws, over vociferous dissents. See, e.g., Ohio v. 

Akron Center for Reproductive Health, 497 U.S. 502, 532 

(1990) (Blackmun, J., joined by Brennan and Marshall, JJ., 

dissenting) (“Ohio’s judicial-bypass procedure can consume 

up to three weeks of a young woman’s pregnancy.”) (citation 

omitted); Hodgson v. Minnesota, 497 U.S. 417, 465 (1990) 

(Marshall, J., joined by Brennan and Blackmun, JJ., dissenting)

(“[T]he prospect of having to notify a parent causes many 

young women to delay their abortions . . . .”); H.L. v. Matheson, 

450 U.S. 398, 439 (1981) (Marshall, J., joined by Brennan and 

Blackmun, JJ., dissenting) (“[T]he threat of parental notice 

may cause some minor women to delay past the first trimester 

of pregnancy . . . .”). 

To be sure, this case presents a new situation not yet 

directly confronted by the Supreme Court. But that happens all

the time. When it does, our job as lower court judges is to apply 

the precedents and principles articulated in Supreme Court 

decisions to the new situations. Here, as I see it and the panel 

saw it, the situation of a pregnant unlawful immigrant minor in

a U.S. Government detention facility is a situation where the 

Government may reasonably seek to expeditiously transfer the 

minor to a sponsor before she has an abortion. 

It is undoubtedly the case that many Americans – 

including many Justices and judges – disagree with one or 

another aspect of the Supreme Court’s abortion jurisprudence. 

From one perspective, some disagree with cases that allow the 

Government to refuse to fund abortions and that allow the 

Government to impose regulations such as parental consent, 

informed consent, and waiting periods. That was certainly the 

position of Justices Brennan, Marshall, and Blackmun in many 

cases. From the other perspective, some disagree with cases 
9 

holding that the U.S. Constitution provides a right to an 

abortion. 

As a lower court, our job is to follow the law as it is, not 

as we might wish it to be. The three-judge panel here did that

to the best of its ability, holding true to the balance struck by 

the Supreme Court. The en banc majority, by contrast, reflects

a philosophy that unlawful immigrant minors have a right to 

immediate abortion on demand, not to be interfered with even 

by Government efforts to help minors navigate what is 

undeniably a difficult situation by expeditiously transferring 

them to their sponsors. The majority’s decision is inconsistent 

with the precedents and principles of the Supreme Court – for 

example, the many cases upholding parental consent laws – 

allowing the Government to impose reasonable regulations so 

long as they do not unduly burden the right to abortion that the 

Court has recognized. 

This is a novel and highly fraught case. The case came to 

us in an emergency posture. The panel reached a careful 

decision in a day’s time that, in my view, was correct as a legal 

matter and sound as a prudential matter. I regret the en banc 

Court’s decision and many aspects of how the en banc Court 

has handled this case.6

 

 6

 The Court never should have reheard this case en banc in the 

first place. As the Supreme Court has instructed, “En banc courts are 

the exception, not the rule. They are convened only when 

extraordinary circumstances exist that call for authoritative 

consideration and decision by those charged with the administration 

and development of the law of the circuit.” United States v. 

American-Foreign Steamship Corp., 363 U.S. 685, 689 (1960). 

Federal Rule 35 provides that rehearing en banc is reserved for cases 

that involve “a question of exceptional importance.” This Court’s 

judges have adhered to that principle, even while entertaining doubts 

about a panel’s application of the law to individual litigants. Here, 
10 

I respectfully dissent. 

 

on the law, the three-judge panel’s order was unpublished; therefore, 

it constituted no legal precedent for future cases. As to the facts of 

this one case, if the panel’s order had blocked Jane Doe from 

obtaining an abortion, the en banc consideration might be different. 

If the panel’s order had forced Jane Doe to the cusp of Texas’s 20-

week abortion cutoff, the en banc consideration might be different. 

If the panel’s order had significantly delayed Jane Doe’s decision, 

the en banc consideration might be different. 

But the panel’s order did none of those things. The panel was 

faced with an emergency motion involving an under-developed 

factual record that is still unclear and hotly contested. Indeed, the 

parties have submitted new evidence by the hour over the past two 

days – none of which was presented to the panel. The panel’s 

unpublished order recognized Jane Doe’s interests without 

prematurely requiring the Government to act against its interests. 

The panel decision was prudent and reasonable, given all of the

circumstances. Indeed, as noted above, the Government represents 

that, while difficult, it is possible for Jane Doe to obtain a sponsor by 

“5:00 P.M. Eastern on October 31, 2017.” This case, as handled by 

the three-judge panel, therefore was on a path to a prompt resolution 

that would respect the interests of all parties – until the en banc Court 

unwisely intervened. This case did not meet the standard for 

rehearing en banc.