J.D. v. Alex Azar, II
925 F.3d 1291
| D.C. Cir. | 2019Background
- Several hundred pregnant unaccompanied alien children (UACs) pass through ORR custody annually; ORR instituted a 2017 policy requiring ORR Director approval before shelters could facilitate abortions and Director Scott Lloyd denied every such request, creating an effective across‑the‑board ban for minors in ORR custody.
- Plaintiffs were four UACs (two served as class representatives) who sought pre‑viability abortions while in ORR custody; some obtained emergency relief by TROs, others were released or obtained abortion before certification; plaintiffs brought a class action seeking injunctive and declaratory relief.
- The district court certified a Rule 23(b)(2) class defined as "all pregnant, unaccompanied immigrant minor children who are or will be in the legal custody of the federal government" and entered a preliminary injunction (1) barring ORR from interfering with class members’ access to pre‑viability abortion and related services, and (2) prohibiting disclosure/forced disclosure of pregnancy/abortion decisions.
- The government appealed, arguing among other things that the case was moot, class certification was improper, and that ORR’s policy was lawful because it did not have to "facilitate" abortions and minors could seek voluntary departure or release to sponsors; the D.C. Circuit addressed jurisdictional issues, certification, and the preliminary injunction on the merits.
- The D.C. Circuit: (1) rejected the government’s mootness challenge under the "inherently transitory" doctrine; (2) affirmed class certification; (3) affirmed the injunction prohibiting interference with access to pre‑viability abortions; and (4) vacated and remanded the injunction provisions concerning disclosure for further factual and legal explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / relation‑back via "inherently transitory" exception | Representatives’ claims are transitory (short ORR stays) so certification may relate back and preserve class claims | Representatives’ individual claims are moot (they left custody or obtained abortions), so class must be dismissed | Exception applies: ORR custody is unpredictable/short enough and some class members remain; certification relates back; case not moot |
| Class certification (Rule 23(a)/(b)(2)) | Class of all pregnant UACs in ORR custody shares common legal injury (ORR veto), representatives are adequate and typical | Class is overbroad: many class members will carry to term or oppose abortion on moral/religious grounds, creating conflicts and lack of commonality/adequacy | Affirmed: district court did not abuse discretion; (b)(2) injunctive class proper despite inclusion of members who may not seek abortions |
| Substantive right — access to pre‑viability abortion / undue burden | ORR’s blanket veto is a categorical bar that places a substantial obstacle to pre‑viability abortion; minors retain constitutional rights and parental‑consent jurisprudence cannot justify ORR veto | ORR need not "facilitate" abortions; minors can avoid ORR policy via voluntary departure or release to a sponsor; interest in non‑facilitation and fetal life justify delay/denial | Plaintiffs likely to succeed on merits; preliminary injunction against ORR interference with pre‑viability abortion access affirmed (government’s facilitation, voluntary departure, and sponsorship defenses rejected) |
| Disclosure / parental‑notification and compelled counseling claims | ORR disclosed pregnancies/requests to parents/sponsors and compelled religious counseling; disclosure violates First and Fifth Amendment interests | Government asserts case‑by‑case notification in minors’ best interests and denies a blanket disclosure policy | Vacated and remanded: appellate court lacked adequate findings about the scope/operation of ORR disclosure practices and legal analysis; district court to clarify factual findings and reasoning |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (establishes constitutional right to choose abortion subject to viability framework)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (undue‑burden standard governs pre‑viability abortion regulations)
- Stenberg v. Carhart, 530 U.S. 914 (2000) (reaffirmed that pre‑viability abortion decision is protected and undue‑burden analysis applies)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (courts must weigh burdens against asserted benefits under undue‑burden analysis)
- Gerstein v. Pugh, 420 U.S. 103 (1975) (recognized "inherently transitory" relation‑back doctrine for class certification in detention contexts)
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (applied transitory‑claims doctrine where prompt adjudication requirements could moot individual claims)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (discussed mootness and relation‑back principles in class contexts)
- Nielsen v. Preap, 139 S. Ct. 954 (2019) (addressed scope of inherently transitory doctrine in immigration detention context)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (sets four‑factor preliminary injunction standard)
- Dada v. Mukasey, 554 U.S. 1 (2008) (explains voluntary departure as discretionary immigration relief)