Rochelle Garza v. Eric Hargan [ORDER IN SLIP OPINION FORMAT]
874 F.3d 735
| D.C. Cir. | 2017Background
- Jane Doe (J.D.), a 17-year-old unaccompanied alien apprehended after attempting to enter the U.S., learned she was pregnant and sought an elective abortion while in ORR-funded custody.
- J.D. obtained a Texas judicial bypass finding she could decide for herself and sought court-ordered access to an abortion; the district court issued a TRO ordering the government to allow the procedure.
- The government appealed and sought a stay; a three-judge panel temporarily allowed ORR time to locate an immigration sponsor (and deferred enforcement) pending appeal.
- J.D. filed for rehearing en banc; the en banc court recalled the mandate, granted rehearing, vacated the panel order (but dissolved the administrative stay), denied the government’s stay request, and remanded to the district court to set amended effective dates for the injunction.
- Central factual/legal disputes include the duration and prospects of the sponsorship process, whether the government may bar abortion while a minor is in its custody, and whether J.D.’s immigration status limits her Fifth Amendment due process rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unaccompanied minor in ORR custody may be categorically prevented from obtaining a pre-viability abortion absent release or sponsorship | J.D.: Due Process protects her abortion right; she complied with Texas law and need not be deprived of the right because she is in federal custody | Government: custody/sponsorship process and voluntary departure are legitimate alternatives; it may withhold facilitation while seeking a sponsor | En banc majority: Government may not categorically block J.D.’s exercise of her unchallenged constitutional right; stay denied and matter remanded for district court to set appropriate compliance dates |
| Whether the government must "facilitate" or merely refrain from obstructing access to abortion while the minor remains in custody | J.D.: Government need not pay or perform logistics but must not interfere; ORR contractor and guardian ad litem can handle logistics | Government: it need not facilitate; transferring to sponsor or voluntary departure are acceptable non-facilitation alternatives | Majority: On the record, required facilitation is minimal (no payment or transport by government); government cannot impose a categorical bar by insisting on sponsorship or departure first |
| Whether delays for an "expeditious" sponsorship search create an undue burden on the abortion right | J.D.: Sponsorship vetting is slow, burdensome, and unrelated to the abortion decision; additional waiting weeks is an undue burden given time-sensitive risks | Government: short, expeditious sponsorship search is a permissible means to avoid government facilitation and protect minor’s best interests | Majority (per Millett concurrence): Additional delay here (weeks already elapsed plus panel’s added days) posed irreparable harm and likely constituted an undue burden; remand for date-specific findings |
| Whether J.D.’s immigration status (attempted illegal entry / lack of "entry" or substantial connections) precludes Fifth Amendment protection | J.D.: Status does not diminish Fifth Amendment protection for bodily autonomy; government conceded the right in litigation | Government / dissent: Entry doctrine and plenary immigration power limit constitutional protections for those "on the threshold"; an unadmitted alien lacks full due process rights | Dissent (Henderson/Kavanaugh): Argues J.D. likely has no constitutional right here; majority did not resolve antecedent status question and proceeded on assumption of protected right; remand ordered but majority denied stay |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (stay pending appeal standards)
- Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006) (scope of injunctive relief and modification)
- Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) (abuse-of-discretion review of injunctions)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (undue-burden standard for abortion regulations)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (application of undue-burden analysis to procedures that delay access)
- Bellotti v. Baird, 443 U.S. 622 (1979) (juvenile capacity and judicial bypass procedures)
- Mazurek v. Armstrong, 520 U.S. 968 (1997) (preliminary injunction and likelihood of success requirement)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (entry doctrine and treatment of aliens detained pending admissibility)
- United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (constitutional protections and substantial connections to U.S.)
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (deference to executive exclusion decisions for aliens)
- Jean v. Nelson, 472 U.S. 846 (1985) (treatment of aliens and due process questions in immigration context)