Tuesday, December 19, 2017

[UPDATED to account for developments through Tuesday morning, 12/19] HHS's shocking new justification for preventing 17-year-old girls in its custody from obtaining abortions: It knows more than they do about whether the abortions would be in their best interests

Marty Lederman

[UPDATE as of early Tuesday morning, 12/19:  The developments are coming fast and furious and are a bit confusing--bear with me here.  (If you haven't yet done so, you should probably read the main post, below, for context.):

1. On Monday evening, Judge Chutkan issued the TRO, which applies to both girls.  It requires the defendant ORR officials to "allow J.R. and J.P. to be transported--promptly and without delay, . . . to an abortion provider, in order to obtain any pregnancy or abortion-related medical care and to obtain the abortion procedure itself, in accordance with the abortion providers’ availability and any medical requirements," and restrains those defendants "from interfering with or obstructing J.R.’s and J.P.’s access to abortion counseling or an abortion."  Judge Chutkan stayed the order for 24 hours--until 6:05 p.m. today, Tuesday the 19th--to allow the government to seek emergency relief in the D.C. Circuit.  The government then noticed an appeal.  

2. The government moved for stays of the TRO only as applied to Jane Roe in both the court of appeals and the Supreme Court.  The government, however, represented that it will not seek a stay as to Jane Poe (the minor who is 22 weeks pregnant).

3.  The D.C. Court of Appeals (Judges Rogers, Tatel and Millett) promptly granted a 24-hour stay of the TRO, until 6:05 p.m. on Wednesday, December 20, 2017, to give the court sufficient opportunity to consider the government's emergency motion, but only "to the extent that the order requires appellants to transport Jane Roe or allow Jane Roe to be transported to obtain an abortion procedure."  

At 10:09 this morning, Judge Chutkan lifted the stay as applied to Jane Poe (who is 22 weeks pregnant).  Presumably, then, Jane Poe will obtain her abortion today (Tuesday), and the case now is confined, on appeal, to Jane Roe, who is approximately 10 weeks pregnant.  

4.  The D.C. Circuit motions panel further ordered the appellee (i.e., Roe's lawyers) to file a response to the government's emergency motion for stay by 10:00 a.m. this morning, with the government's reply brief due at 3:00 p.m.  The plaintiffs filed their brief moments ago.  

The panel further directed the parties to address: (1) whether Jane Roe’s independent request for and decision to undergo an abortion fully complies with the relevant state law governing abortions by minors [I believe the answer to this is "yes"]; (2) whether the Office of Refugee Resettlement (ORR) has yet made an individualized decision regarding its view concerning why termination of the pregnancy would not, in its judgment, be in Jane Roe’s best interests [based upon yesterday's oral argument, I believe the answer to this is "no"--and Roe's counsel agrees]; and (3) if no such individualized decision has been made, for ORR to identify "on what basis ORR has concluded that an abortion would not be in Jane Roe’s best interests."  As for this final item, my understanding is that although ORR had concluded that an abortion would not be in Jane Poe's best interests (a determination that will apparently be rendered moot if Poe obtains an abortion later today), ORR has not made a similar determination with respect to Jane Roe.  It is, instead, trying to prevent Jane Roe from having an abortion even if it is in her best interests, at least until such time as she is transferred to the custody of a "sponsor"--allegedly so as to prevent the ORR from being compelled to "affirmatively facilitate" the abortion (but see my discussion below, questioning the "facilitation" rationale).  We shall see shortly whether that understanding is correct.

5.  In the meantime, back in the Jane Poe case, yesterday afternoon the government filed, under seal, the ORR Director's "Decision . . . for Jane Poe," which is, presumably, ORR's explanation for why, in its view, an abortion is not in Poe's interests, thereby overriding her decision to the contrary.  (See my discussion below.)  The ACLU lawyers representing Roe and Poe then filed, with Judge Chutkan, a motion for a public filing of a redacted version of that ORR Decision (and an attached note).  Although Poe's own case might be moot as soon as she obtains her abortion (presumably today), the lawyers represent that the ORR Decision, and the attached note, "provide highly relevant information about Defendants’ challenged policy that ought promptly to be made public, as well as important additional facts about Plaintiff Roe’s situation"--information that the plaintiffs hoped to refer to today in their responses to the government’s emergency motions for stays pending appeal.  Judge Chutkan presumably will rule on that motion early this morning, at which time we might learn relevant new information that bears on Roe's case going forward.  In the meantime, in their filing this morning, Roe's counsel write:
A document filed by Defendants under seal with the district court yesterday regarding the reasons for denying another Plaintiff, Jane Poe’s, request for an abortion makes abundantly clear that Defendants’ refusal to allow young women to access abortions has nothing to do with their best interests and everything to do with Defendant ORR Director Scott Lloyd’s personal opposition to abortion.
END UPDATE (for now)]

Last month I published a post here about the Solicitor General’s nominal “Petition for Certiorari” in No. 17-654, Hargan v. Garza, the case involving HHS’s efforts to deny a 17-year-old girl in its custody, “Jane Doe,” the right to obtain an abortion to which she was entitled under the Constitution and Texas law.

Now, in that same litigation, the Department of Health and Human Services is once again trying to prevent two other unaccompanied, immigrant 17-year-old girls in its custody from obtaining abortions.  HHS’s Office of Refugee Resettlement (ORR), which has statutory responsibility for such unaccompanied minors, has instructed the private shelters housing the girls (both of which are contract agents of ORR) not to permit the girls to obtain the abortions they are seeking—i.e., to forcibly restrain them from leaving the shelters for the procedures. 

I just returned from a hearing before Judge Chutkan on a motion by “Jane Roe” and “Jane Poe” for a temporary restraining order that would enjoin HHS from requiring the shelters to stand in the way of their abortions.  What makes these second and third cases so remarkable is that they starkly demonstrate the most striking thing about the government's argument:  the fact that HHS simply has no legal, cognizable interest in preventing the abortions.  For that reason alone, Judge Chutkan should grant the TRO.  [UPDATE Monday evening:  Judge Chutkan has issued the TRO, which, inter alia, requires the defendant ORR officials to "allow J.R. and J.P. to be transported—promptly and without delay, . . . to an abortion provider, in order to obtain any pregnancy or abortion-related medical care and to obtain the abortion procedure itself, in accordance with the abortion providers’ availability and any medical requirements," and restrains those defendants "from interfering with or obstructing J.R.’s and J.P.’s access to abortion counseling or an abortion."  Judge Chutkan stayed the order for 24 hours to allow the government to seek emergency relief in the D.C. Circuit.  The government has noticed an appeal.  The government has also moved for stays of the TRO as applied to Jane Roe in both the court of appeals and the Supreme Court.  It appears, however, that the government will not seek a stay as to Jane Poe (the minor who is 22 weeks pregnant), who therefore will be able to obtain an abortion tomorrow evening, unless something more happens.]

Jane Roe learned that she is pregnant about four weeks ago.  She is now ten weeks pregnant.  Jane Poe, by contrast, is 22 weeks pregnant—something she recently learned.  (She had previously been told that she was not nearly as far along in the pregnancy.)  Unlike Jane Doe, the plaintiff in the earlier proceeding who was in custody in Texas, neither Roe nor Poe is being held in a state that requires any parental consent or judicial bypass before a minor may exercise her right to an abortion:  That is to say, as far as state law is concerned, there is no obstacle to either young woman exercising her constitutional right to an abortion, as long as the health care professional in question determines that she is capable of providing informed consent to the procedure.  Poe, however, is quickly approaching the point in her pregnancy (fetal viability) where state law might permanently prevent her from exercising her right.  And ORR is preventing both girls from exercising their rights now.

Why?  What reason does ORR give for standing in the way?  The principal state interest that it invokes, just as it did in the Doe case, is that the Constitution does not require the government to “facilitate” an abortion; that ORR does not wish to facilitate abortions; and that the requested injunction would direct ORR to “affirmatively facilitate” the abortions.  I’ve explained previously why there’s nothing to this argument that the injunction would force ORR to “affirmatively facilitate” any abortion—an explanation I’ll repeat below. 

Before I do so, however, it’s important to stress that at the hearing this morning, ORR offered another, quite shocking rationale as applied to the case of Jane Poe, who is 22 weeks pregnant:  ORR has determined, according to its DOJ lawyer, that it is not in Poe’s own interest to have the abortion, even though she has decided otherwise.  In support of this argument, ORR cites 6 U.S.C. 279(b)(1)(B), which provides that the ORR Director is “responsible” for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child.”  ORR reads this legislative conferral of “responsibility” upon the Director to include the authority to override the minor’s own decision about whether an abortion is in her own interest.  (The government did not explain at the hearing why or how the Director had made the decision that an abortion was not in Poe’s interest—and, in particular, whether that determination was based upon anything more than the Director’s own belief that abortion is immoral.  Judge Chutkan directed counsel to file an explanation by 3 p.m. today.)

Think about that argument for a second.  And recall that in the Jane Doe case, in the D.C. Court of Appeals, Judge Kavanaugh understood the government to have “expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an abortion.”  We now know that that is not the government’s position, if it ever was:  ORR now boldly claims that it has the authority to block Jane Poe’s abortion—permanently—because its Director knows better than she does what her best interests are.
I have not had time to do any research on section 279(b)(1)(B), but—simply as a matter of statutory interpretation—I would be shocked if Congress intended to confer such “override” authority on the Director with respect to such a significant, constitutionally protected choice of the minor.

Not surprisingly, it appeared that Judge Chutkan was shocked, too, when DOJ tendered this argument at the hearing.  After all, she noted, a state could not constitutionally afford even the minor’s parent such an unqualified power to override a daughter’s determination of whether an abortion is in her best interests.  The notion, therefore, that Congress has—and constitutionally could—confer such authority upon the ORR Director is, to say the least, very dubious.

As I noted above, ORR’s other stated interest—besides the audacious notion that it must be permitted to act in accord with its own determination of what is in Jane Poe’s best interest—is in not being compelled to “affirmatively facilitate” abortions.  As Judge Millett wrote in the Doe case, however, this is “verbal alchemy.”  The TRO would not require the defendant government officials to “facilitate” an abortion or, for that matter, to do anything.  The injunction would be prohibitory.  As Judge Millett elaborated:

The government need not pay for [the minor’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; [she] 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 [the minor] has advised that it is willing to handle any necessary logistics, just as it would for medical appointments if [she] were to continue her pregnancy.  The government also admitted at oral argument 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.

In sum, then, the TRO would merely forbid ORR officials from barring the contracting shelters from allowing Poe and Roe to receive medical care.  Standing aside, and declining for a few hours to hold a human in custody, is not a form of "affirmative facilitation," if those words have any meaning.

Indeed, if ORR’s simple failure to prohibit a minor’s agents from transporting her to the clinic actually entailed ORR's “facilitation" of the ensuing abortion, it would follow that the Department of Homeland Security and federal Bureau of Prisons regularly “facilitate” abortions when they transport their custodial detainees to clinics so that those women may obtain such procedures.  Surely that cannot be the view of the United States--yet it is the logical implication of the government’s absurd “affirmative facilitation” argument. 

Moreover, ORR’s own argument in Roe’s case undermines its “facilitation” claim.  As in the Jane Doe case, ORR is willing to permit Roe to obtain an abortion so long as ORR first transfers her to the custody of a “sponsor.”  If ORR’s failure to stand in the way of the private efforts to take Roe from the shelter to the clinic would result in ORR’s “affirmative facilitation” of Doe’s abortion, however, as DOJ argues, then it stands to reason that ORR’s transfer of Roe to a sponsor’s custody—and its subsequent failure to do anything to prevent that sponsor from taking Roe to the clinic for the abortion—would likewise result in ORR being responsible for “affirmatively facilitating” the abortion.  (Indeed, as Judge Millett explained in the Doe case, transferring the minor to a sponsor would, if anything, require far more use of governmental resources than the simple transfer of the minor the contractor shelter to the custody of private parties who would assist her in obtaining her abortion.)  The remedy ORR is seeking in Roe’s case, then, belies the “affirmative facilitation” claim upon which its argument depends.

In sum, ORR simply has no good reason—surely none that Congress has recognized or authorized the agency to act upon—to continue to require the shelters to physically restrain Roe and Poe from exercising their constitutional rights.  That, in and of itself, is enough to resolve these cases.

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