Livestream of DC Circuit argument (starting momentarily) in Garza v. Hargan, AKA the @ACLU's Jane Doe case re abortion rights of unaccompanied immigrant minors #appellatetwitter #justiceforjane
cadc.uscourts.gov/internet/sixty…
cadc.uscourts.gov/internet/sixty…
Oyez, oyez, oyez. @brigitte_amiri's name mispronounced in the intros, taking that as a good omen.
DAG focusing on breadth of the district ct order they're appealing, says he will circle back to mootness and class cert. Citing Bellotti to say gov't has a role to play in youth decisions. 1st question hones in on how ORR still gets to play role while complying with this order.
"I don't know if it's worth fighting over what the ORR Director's policy is" on abortion requests. In other words, please ignore the evidence that Director Lloyd ALWAYS says no.
Q: I don't really understand the argument you're making right now, counselor...are you saying that ORR can veto a young person's choice [to have an abortion]? Answer: YES...
Q: If ORR had written policy on determining whether minor is mature enough 4 abortion, ct could've evaluated that. But instead we had evidence of across the bd exercise of veto authority. A: I have arguments re why across board veto=OK, but DC went further, said ORR has no role.
Now DOJ rep moves on to a diff line of arg about ORR's temporary custody, how agency often places youth with sponsors "quite quickly" and Jane Doe's long wait was an outlier. Q: Isn't it fine to say agency must allow abortion access within a reasonable time? Won't concede that.
DOJ: Distinguishing prison cases, because the women in custody don't have the option to leave, whereas immigrants at issue here have the option of "voluntary departure." [I'm having flashbacks to "self-deportation."]
DOJ argues the "burden" on abortion here is created by the patients themselves, by coming into the US. Judge asks if the same isn't true in the prison cases, that affected person committed a crime and that was but-for cause of the obstacle to abortion. 😵
Vol. departure argument getting demolished. Judge notes constitutional rights are meaningless if folks can just be told, leave the country if you want to exercise that right.
Feds continue to claim they are not imposing a burden on abortion here. Q: would this arg also apply to adults in ICE custody? A: Yes, with some hedging about esp. strong gov't interests in reuniting minors w/ their parents, acting in loco parentis to serve their best interests.
Ct notes there is a lot of precedent about requiring a judicial bypass around parental consent, but ORR is not providing a similar out as to sponsorship. DOJ agrees but also says SCOTUS has never ruled on the constitutionality of "parental notice".
Sponsors can't legally block a youth's abortion (matter of state law), but can refuse to be sponsors, which would effectively do the same thing in a regime where ORR won't allow abortion and insists release to a sponsor is the available option for youth seeking abortion.
"Can I ask the question?" I think that from a DC Circuit judge is tantamount to "Can I live"? #appellatetwitter
Summary/core of gov't's argument: The individual liberty is not being restricted by the United States, the US is just not going to participate or facilitate. Clearly not landing well w/this panel. Judge asks why he didn't lead with procedural args [which might have gone better].
Gov't claims that under existing precedent, state doesn't have to expend any resources to facilitate abortion, and here anything but a flat denial = expenditure of resources to facilitate. Acknowledging, for purposes of this appeal only, that undue burden test applies.
Judge Srinivasan points out that the government interest in past cases like Harris really consists of an interest in arming the affected person with information to supposedly assist in making an informed reproductive choice. Very different from what gov't is asserting here.
DOJ continues saying its responsibilities are met if young ppl get sponsors because the sponsor will be able to "help" the youth "deal with the issue" of the pregnancy. Infuriating b/c the whole pt here is young people know how to deal w/ the issue, they're seeking abortion.
More back and forth re how sponsorship regime fits the caselaw. Judge Srinivasan: there is no statutory timeframe for finding sponsors, so there's really no obligation for ORR to find one. DOJ claims the dist ct order is overbroad abuse of discretion.
Other 2 judges posing hypos about why ORR hasn't gone with a "reasonable time" standard or "must find sponsor by 20 weeks of pregnancy" or even acceleration of sponsor search during pregnancy...something to acknowledge an impt right of the minor is hanging in the balance here.
[All of this is irksome b/c it treats abortion as a task to ✔️ off at a time convenient for the system, ignoring the burden it places on traumatized young ppl if they're forced to continue a pregnancy in an immigration shelter for weeks after making the decision to terminate.]
Judge Silberman (Reagan appointee) moves the convo into class certification. Seems to be trying to help the gov't lawyer make the case that individual circumstances are different enough to not constitute a "common injury" across all class members.
Gov't now upset about district ct order's "silencing crisis pregnancy centers." I wish I were drinking something stronger than ☕️.
J. Srinivasan neatly summarizes the way loss of autonomy is a common injury across the class of all pregnant minors in ORR custody. J. Silberman disagrees, posits that it's a problem to configure the class such that it includes those minors who personally oppose abortion.
Discussion of how narrower class definitions are unmanageable because people can change their minds in the course of a pregnancy. Gov't argues that folks could move in and out of the class if it were defined as young people *seeking abortion*.
[Unfortunate that the access to info piece of this -- right of ALL pregnant people to make informed choices about their pregnancy options, which ORR has been obstructing -- is getting lost.]
Judge Silberman asks about mootness, whether @ACLU should have filed a new case. Jokes about how a new case might fare differently at SCOTUS b/c of no need for recusal by Justice Kavanaugh. [We'll see about that.]
Gov't: claim doesn't "expire of its own accord" but due to court intervention, and D isn't selectively mooting claims [er, not sure that's correct]. So class should be addressed only when individual claim is live.
Class cert was pending while 4 individual claims got decided on merits. Gov't says ct took too long to address class cert. Judge Srinivasan, v. skeptical, quotes a Gerstein FN: "it is by no means certain" any individual will be in custody long enough for class cert...
FINALLY gov't sitting down, their "20 min" ran more like an hour. @brigitte_amiri now on the 🎤and turning us back to how this is about "banning abortion" and a "stark prohibition" that is "blatantly unconstitutional." ✊🏾
Record shows Director Lloyd's consistent ideological opposition to abortion. Claims that gov't was making case by case determinations based on individual minors' maturity and such are belied by the record.
Personal lobbying by Dir. Lloyd, referrals ONLY to religiously affiliated counselors... these are coercive tactics and blatantly unconstitutional.
J. Silberman: What about the voluntary departure argument? @brigitte_amiri : Multiple issues with that. Minors eligible for asylum have the right to stay in country, can't pit one right against the other. Plus vol. departure takes a long time, tho gov't has claimed otherwise.
Isn't there an option for quicker vol departure? Supposedly yes, but by discretion of US AG, unclear how it works, certainly not within the minor's own control. Jane Doe example, option was explored but it was not going to be immediate.
Assuming a magic wand could be waived = immediate departure, there's still a repatriation issue. See immigrants' rights amicus brief. Estimated to take 1-2 months in many instances. Irreparable harm from allowing pregnancy to continue under those circumstances.
J. Silberman: Would it be ok if they could commit to get people out of country in a week? BA: No. Every week of delay causes harm to the impacted pregant person. And gov't cannot hinder abortion for the sake of hindering abortion, which is exactly what's happened here.
Judge Wilkins, mostly quiet today, redirects convo by expressing "serious concerns" about both mootness and propriety of the class certification and encouraging @brigitte_amiri to spend her time on those. Re mootness: "the inherently transitory exception was built for this case."
@brigitte_amiri Point of inherently transitory exception -- When it's not knowable when a live claim will moot out, then dist ct may not have time to certify while it's live. Exactly what happened here.
Wilkins question notes some claims will survive for months, does that doctrine apply. BA points out the issue is unknowability of time. Avg time in custody is 41 days, significant variation. Also unknowable how long person will remain pregnant.
Silberman: exception wouldn't apply if time were unknowable between 1 and 2 years. BA: Oh yes, but here we're talking about unknowable within a range of short time frames. We would also meet a test about "fleeting claims."
Relief for 4 indv'l plaintiffs is great, but each of those was delayed for weeks while case played out and no minor should have to suffer that harm. Risking her health and giving up her const. right cannot be req'd in the interest of letting district ct complete class cert.
Silberman hypo re rolling class of 100 different people at diff times having the same claim. Would inherently transitory exception apply? BA: Yes. That's this case. Even w/o formal reporting mechanism we know of many youth who've requested abortion services since class cert.
Silberman adequacy question: Named Ps had their needs met. BA: Yes, but they will continue to rep the class interests. Issue arises in all inherently transitory cases. Adequacy and mootness are different.
BA: The right to abortion is the right to decide whether to have an abortion. ORR policy has been to withhold neutral info about abortion. J. Wilkins grills BA on HOW. Seems concerned about whether minors who haven't explicitly sought abortion, or info about it, fit in class.
BA points out all pregnant people should be in class b/c nothing else would allow for an effective, practically viable remedy. Affected minors often don't have English skills, access to info is challenging. Dist ct order said gov't can't obstruct or interfere with access to info.
J. Srinivasan also asking about whether class is overbroad [that's concerning], but BA comes back nicely re the problems with requiring a person to say a "magic word" to qualify for inclusion in the class / access to their constitutional rights.
Judge Wilkins says he has serious problems identifying a policy that is being challenged here that inflicts an injury upon a minor who hasn't expressed a desire to terminate pregnancy. Asks for help addressing this commonality concern, lest panel need to vacate class cert.
BA: Without a PI covering all pregnant minors, gov't could coerce any minor who tests positive for pregnancy. Needs to be clear that the minor has right to make her own choices throughout her pregnancy and stay in ORR custody.
Points out that folks have been subjected to CPC counseling against their will, ultrasounds against their will, etc., and overall pressure as to her decision. Those are injuries too. Srinivasan: Put CPC issue aside, not part of DC order on appeal. BA: Oh, but it is.
More qs from Judge Srinivasan. How is a pregnant person not seeking abortion injured by ORR's practices? BA: Forced parental notification.
Judge Srinivasan: But are you arguing someone who isn't seeking abortion is harmed by the *denial of the abortion option*? BA: Practical problem w/ defining the class. Decisions shift, may not immediately crystallize. Minors w/o info re options esp. likely to fall thru cracks.
Judge Wilkins: I thought dist ct found parental notification was specific to folks seeking abortion. BA: Right, gov't using parental /sponsor notice as a tool to deter exercise of the abortion right. Notes that parents explicitly threatened P Jane Poe w/ violence when notified.
J. Srinivasan says he wanted to see more in briefing re parameters of parental notification. BA: There are some unclear aspects, PI of course came before full discovery. But... cites record as to ORR requiring formal parental consent for abortion.
J. Wilkins: Are ALL pregnant minors required to go to a CPC under ORR policy? BA: We don't know. Judge W: We don't impose injunctions to prevent what MIGHT happen, only to block specific unconstitutional/legal practices. BA: Practices here were extreme and extraordinary.
Wilkins: OK, but isn't all this only applicable to those who want abortion? BA: Information needed to make the decision can't be restricted. Onus shouldn't be on the minor to affirmatively say something. Wilkins: What policy is steering the pregnant minor? BA: Withholding info.
BA: Being able to decide w/o gov't interference whether to continue a pregnancy is the bedrock of the right set forth in Planned Parenthood v. Casey. J. Wilkins: What specific info are they denying? Didn't you conceded there's no affirmative gov't obligation to provide info?
J. Silberman: Are you saying Roe and Casey block gov't from trying to influence abortion decision? BA: Gov't can inform woman of her free choice but cannot hinder. Hallmark of Casey. Judge Silberman: Influence and hinder aren't the same thing.
BA: Are they? Law restricting info access for pregnant ppl in free world would be blatantly unconstitutional. J. Silberman keeps pushing on distinction between influence and inform. BA: Gov't cannot engage in coercion attempts to try to force minors to carry pregnancies to term.
BA: Looking at the real life situations of these young ppl...May not know immediately what they want to do, upon receipt of pregnancy test result. Coercion attempts are hindering right to make constitutionally protected decision. This is a due process violation. PP v. Casey.
@brigitte_amiri offers to turn back to merits but panel has No Further Questions. DOJ now back up on rebuttal. If class is all pregnant minors not just those seeking abortion, dist ct should have time to reach a decision during the longer timeframe of a full term pregnancy.
Judge Wilkins: class cert wasn't fully briefed until 11/27. 4 individual cases -- all moot by mid January? DOJ: Yes, last class rep was out of ORR custody by December. Judge W: You really think dist ct should have been expected to decide this in a month, during holidays?
DOJ: Dist ct didn't engage on all appropriate class cert factors. Its order is too broad & policy-oriented, reads like legislation. Turning back to CPC issue, we don't think that's squarely in the order/ properly part of the appeal. Same re access to neutral info.
Gov't lawyer also says minors can get all the info they need through pro bono counsel. [WTF? Lawyers are not medical providers, among many other problems with that reasoning]
Email cited re sworn declarations from parents in Jane Doe's specific case was a matter of Texas law, not a blanket ORR policy
Judge Srinivasan turns back to voluntary departure. Gov't lawyer says it is quick if started before immigration removal proceedings, and expedited if there are exigent circumstances, but acknowledges he doesn't know how consular processing works or how long it takes.
And the case is submitted, i.e. we're done, at last. Here's hoping #shero @brigitte_amiri gets some downtime and that plaintiffs get a quick but thoughtful ruling out of this DC Circuit panel. #justiceforjane
Oops, correct caption is now Garza v. Azar. Alex Azar II is the current Secretary of the US Dep't of Health & Human Svcs, which includes the Office of Refugee Resettlement, the agency causing the problem at the heart of this case.
