Monday, September 24, 2018

Return to Garza: How ORR is acting without statutory authority (and why DOJ's arguments haven't gotten any better since last year)

Marty Lederman

Late last year I wrote a series of posts (see, e.g., here, here, here, here and here) criticizing the positions of the Department of Justice in Hargan v. Garza, No. 17-654, the case discussed at length in the Kavanaugh confirmation hearings involving HHS’s efforts to prevent minors in its custody from obtaining abortions.  In June, the Supreme Court disposed of the case before it, involving one minor (Jane Doe), without reaching the merits. 

Several weeks earlier, however, on March 30, District Court Judge Tanya Chutkan certified a class defined as “all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government,” and she issued a preliminary injunction that enjoined the federal defendants from, among other things, “interfering with or obstructing any class member’s access to . . . abortion counseling [or] an abortion.”  The government has appealed from those orders.  The U.S. Court of Appeals for the D.C. Circuit will hear argument in the case on Wednesday morning.  Here’s the Department of Justice’s opening brief; the plaintiffs’ brief; and DOJ’s reply brief.

Much of the briefing on appeal concerns whether the case is moot because the class representatives have already obtained relief, and whether the members of the class have the requisite “commonality.”  Principally for the reasons offered in the plaintiffs’ brief, I don’t think DOJ’s arguments are especially strong on these questions.  On the certification question, in particular, DOJ relies heavily on the notion that there’s no “common question” among most members of the class because many of them will choose to carry their pregnancies to term rather than seek an abortion.  The court’s relief, however, merely affords all pregnant minors in the class the right to choose whether to have an abortion.  The fact that some of them will not exercise that constitutional right doesn’t mean they shouldn’t all be afforded its protections, nor is it a reason to require each and every pregnant minor in HHS custody who wants an abortion to have to go to the trouble of filing a separate, virtually identical lawsuit requiring emergency, expedited adjudication.  (At page 30 of its opening brief, DOJ strikingly suggests that “the vast majority” of class members “may support ORR’s challenged policies and practices.”  DOJ cites no evidence, however, that any member of the class “supports” the agency practice, described below, of categorically vetoing the choices of those minors who choose to obtain abortions.)

As for the merits of the preliminary injunction, the briefs debate at length whether HHS’s policy imposes an “undue burden” on the young women’s Fifth Amendment rights.  They devote surprisingly little attention, however, to two other important aspects of the case that I’ve written about before, which are the principal subjects of this post: (i) the radical nature of HHS’s policy and (ii) the fact that the case should be decided on the simple ground that the agency is acting ultra vires, that is, without statutory authority.  At the end of the post, I’ll also review the reasons why DOJ’s “abortion facilitation” argument remains frivolous and why the government also gains no ground by emphasizing that the class members can “cure” any constitutional problem by simply leaving the United States.

The Radical Nature of the ORR Policy

The briefs don’t do justice to the remarkable nature of the HHS policy at issue in the case. 

When the case was first considered in the context of Jane Doe’s effort to obtain an abortion, before class certification, Judge Kavanaugh wrote in his dissenting opinion that “[t]he Government has … expressly assumed, … presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an abortion.”  It turns out, however, that Kavanaugh’s characterization of HHS’s policy was mistaken:  Unless I’ve missed something, the Government’s alarming view is, in fact, that the agency has the authority to prevent all of the minors in its custody (or custody of its contractors) from obtaining abortions—even those who have been raped.

A bit of background:  

Ordinarily, when foreign nationals arrive in the United States without legal authority, they are detained, if at all, by the Department of Homeland Security.  When it comes to unaccompanied minors, however—those who don’t have a parent or legal guardian in the U.S.—Congress decided, in the Trafficking Victims Prevention Reauthorization Act of 2003, to assign their care and custody to HHS, which is required to use “the least restrictive setting that is in the best interest of the child,” 8 U.S.C. § 1232(c)(2)(A), until they can be released to a suitable sponsor, obtain lawful status, or be repatriated to their country of nationality.  

Within HHS, this function is assigned to the Office of Refugee Resettlement (ORR).  In most cases, ORR contracts with state-licensed residential care providers to house the minors, unless and until ORR finds a “sponsor” to take custody as a guardian.

Under both the Bush and Obama administrations, ORR routinely permitted minors to use private funding to obtain abortions where the minors were permitted to do so under the laws of the states in which they were housed.  In March 2017, however, when Scott Lloyd took office as Director of ORR, the agency implemented a new policy under which it withholds information from minors in its custody (or the custody of the shelters with which ORR contracts) about their pregnancy options and requires minors considering abortion to receive what ORR euphemistically calls “life-affirming” counseling from ORR-designated anti-abortion groups.  Most alarmingly, if a minor chooses to abort her pregnancy even after this process, ORR won’t permit her to do so, even if she is legally entitled to an abortion under the state law where she is residing:  ORR has instructed the shelters in which most of the minors live not to allow the young women to attend any abortion-related medical appointments without Director Lloyd’s approval—and apparently he has never granted such approval, even in a case (involving the pseudonymous Jane Poe) where the young woman was pregnant as a result of a rape and suicidal.

On what grounds does Lloyd regularly deny these young women the ability to obtain abortions?  He purports to act in the best interest of the minors themselves, based upon his own assessment that they are better off carrying their pregnancies to term, regardless of what they and their physicians might believe.  In the Jane Poe case, for instance, Lloyd concluded that it was “perhaps likely” that the rape victim “would go on to experience an abortion as an additional trauma on top of the trauma she experiences as a result of her sexual assault,” because the abortion would not “undo or erase the memory of the violence committed against her,” and because the notion that “it is possible to cure violence with further violence, and that the destruction of an unborn child’s life can in some instances be acceptable as a means to an end,” is “dubious,” even if the young woman in question does not appreciate it.  At bottom,” he wrote,

this is a question of what is in the interest of the young woman and her child.  How could abortion be in their best interest where other options are available, and where the child might even survive outside the womb at this stage of pregnancy?  Here there is no medical reason for abortion, it will not undo or erase the memory of the violence committed against her, and it may further traumatize her.  I conclude it is not her interest. …

The Office of Refugee Resettlement serves a large number of persons who have experienced some sort of violence.  Refuge is the basis of our name and is at the core of what we provide, and we provide this to all the minors in our care, including their unborn children, every day.  In this request, we are being asked to participate in killing a human being in our care. I cannot direct the program to proceed in this manner.  We cannot be a place of refuge while we are at the same time a place of violence. 

This, then, is the ORR policy and practice:  The agency boldly claims that it has the authority to block a minor’s abortion because its Director knows better than she does whether it is in her best interests to carry the pregnancy to term, even when that pregnancy is the result of a rape, and even when the minor has satisfied the governing state-law requirements for avoiding parental consent, such as demonstrating to a court that she is mature enough and well-enough informed to make the abortion decision in consultation with her physician.  (At page 50 if its opening brief, DOJ euphemistically refers to this categorical ORR veto as “assisting these minors with navigating complex moral, mental, and physical issues they face.”)

As Judge Chutkan correctly described the situation:

ORR’s policy vests the power to decide the future of a UC’s [unaccompanied child’s] pregnancy in one man: Director Lloyd. (ECF No. 5–4). The policy provides no mechanism to ensure compliance with established constitutional dictates, or to afford a UC the opportunity to bypass the Director and effectuate her constitutional rights. Apart from his personal opinion that abortion is not in any pregnant UC’s “best interest,” the ORR policy does not require Director Lloyd to provide any justification or legal authority to unilaterally deny UCs their right to make their own reproductive choices. Moreover, the ORR decision document reveals that the Director's ultimate decision is substantially controlled by—if not entirely based on—his ideological opposition to abortion, and even a UC who becomes pregnant as a result of rape, with all its attendant physical and psychological harms, will not be allowed to decide whether she wishes to continue that pregnancy. (See ECF No. 92–1 at 7–8). In short, ORR’s policy is premised on the notion that the Director is entitled to exercise complete control over female UCs’ reproductive decisions by virtue of the fact that they are undocumented minors in ORR custody. 

ORR’s asserted authority to “veto” a minor’s informed, mature decision to abort her pregnancy—which it appears to have implemented in every case since Scott Lloyd became Director—is an authority that no other custodian in the nation, including a parent, enjoys.

The Absence of Statutory Authority

The parties exert a great deal of energy in their briefs to debating whether this ORR veto imposes an “undue burden” on minors’ Fifth Amendment rights, in violation of well-known, governing constitutional precedents such as Casey, Whole Women’s Health, etc.—and, in particular, Supreme Court cases involving restrictions on the ability of minors to choose to end their pregnancies, such as Bellotti v. Baird, Planned Parenthood of Cent. Missouri v. Danforth, Hodgson v. Minnesota, Part V-D of Casey, et al.

The plaintiffs are correct that such a “custodian’s veto” would, indeed, be unconstitutional under those precedents unless, at a minimum, the legislature had established a judicial “bypass” system in which the minor had an opportunity to demonstrate to a court that she was mature enough and well-enough informed to make the abortion decision in consultation with her physician or that, even if she is not able to make this decision independently, the abortion would be in her best interests—something Congress obviously has not done. 

But the court of appeals does not even have to reach that constitutional question because this dispute does not arise in the same posture as any of those well-known precedents.  At issue in each of those cases was the constitutionality of a state law, enacted by the legislature, that restricted abortions—e.g., in the cases involving minors, statutes requiring parental consent.  Here, however, Congress has not enacted any such statute conditioning the abortions of minors in ORR custody upon obtaining the consent of the ORR Director (or another custodian)—let alone chosen to afford the Director of ORR authority over minors’ abortions decisions that’s more sweeping than the authority that their parents would have if they were in the U.S. and caring for the young women.  Nor has Congress enacted any statute that purports to displace or supplement the requirements of the governing state laws in the various states in which the ORR minors are held:  Congress has, unsurprisingly, left questions of parental and other custodial consent to be determining according to the laws of the various states, which has always been the default.

Indeed, as I explained back in December, far from authorizing ORR to impose unprecedented restrictions on the ability of minors to obtain abortions, in 2003 Congress transferred the custody of this group of minors from immigration authorities in DHS to HHS precisely in order to ensure that they be held in a less restrictive setting.  It’s therefore rather absurd to suggest that Congress gave the Director of ORR more control over those minors’ decisions about pregnancies than the government would have had if the minors were in DHS custody. 

DOJ does not seriously argue otherwise:  It says very little about the statutory basis for the ORR policy.  It’s only in the penultimate sentence of the government’s opening brief that DOJ finally refers to the question, writing that ORR has “congressionally-mandated obligations to act in these minors’ best interests.”  In support of this unremarkable proposition the brief cites 6 U.S.C. § 279(b)(1)(B), which provides that the Director “shall be 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 apparently 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.  But that’s not right.  
Of course Congress has directed the Director, in making decisions and actions relating to the care and custody minors in ORR custody or that are ORR’s responsibility, to consider the interests of the minors themselves.  It could hardly be otherwise.  After all, all custodians of minors, individual and institutional—including parents and other in loco parentis—have such an obligation to act in the children’s interests.  See, e.g., Bellotti v. Baird, 443 U.S. at 649 (“In the case of the abortion decision, … the focus of the parents' inquiry should be the best interests of their daughter.”).  Standing alone, however, that general obligation does not generally give custodians—even parents—the power to override minors’ decisions to end their pregnancies, unless the legislature has specifically made such consent a precondition to an abortion and has established the requisite judicial bypass system.  (In the minority of states that do not have a parental consent or notification law, for instance, parents do not enjoy a veto over their daughters’ decisions to obtain abortions.)

So, too, here:  Neither § 279(b)(1)(B), nor any other statute, affords the ORR Director the power he now asserts to override the decisions of the minors in his custody to terminate their pregnancies.  Accordingly, the policy is ultra vires—and that statutory holding is sufficient to resolve the case.  (Indeed, it is a question “common” to all the members of the class, one that surely does not depend upon “the individual claimants’ facts and circumstances” (Government Opening Br. at 34).)

The Government’s “Facilitation” Argument

DOJ tries to circumvent the obvious constitutional infirmity of ORR’s veto policy by arguing, as it has throughout the litigation, that ORR’s policy is not actually prohibitory, and that the injunction here requires ORR to “facilitate” abortions, something that no government may be compelled to do under a long line of Supreme Court decisions such as Harris v. McRae.  DOJ repeats this assertion almost 60 times in its two briefs—but it doesn’t get any stronger with repetition.

As I’ve explained at length in my previous posts (especially this one), this “facilitation” argument is wrong for at least two reasons, which I’ll simply summarize here.

First, and most fundamentally, the preliminary injunction doesn’t require ORR affirmatively to do anything.  By its terms it merely forbids the defendants from “interfering with or obstructing any class member’s access to . . . abortion counseling [or] an abortion.”  Thus the court order does not require the government to pay for the abortion, to transport the minor to the medical facility, or even to do any paperwork or take any administrative steps.  ORR must simply step aside, and cease instructing shelters to physically prevent the minors from obtaining abortions.

DOJ argues that this is a de facto requirement that the government “facilitate the termination of life” because ORR has preexisting policies that require its contractors to accompany minors during transportation to medical appointments and that require the Director to formally “approve” all significant medical procedures for minors in its custody or in shelters.  To the extent those ministerial functions could even constitute “facilitation” of the abortions, however, the preliminary injunction does not require them.  If ORR wishes not to do those things, it can choose not to do them.  (Indeed, at an earlier oral argument DOJ conceded that, as a result of the district court’s order, ORR doesn’t need to complete its own self-created internal “best interests” form.)

Second—and this gets back to the point in the previous section of this post—there is no statutory authority for ORR to implement a policy forbidding the forms of so-called “facilitation” that it identifies.  To be sure, Congress has imposed one limitation when it comes to the federal government’s involvement with abortions:  The Hyde Amendment provides that funds appropriated by Congress may not be “expended for any abortion,” except in limited circumstances, including where “the pregnancy is the result of an act of rape or incest.”  The preliminary injunction, however, does not require ORR to expend any appropriated funds for abortions.  Only private funds are at issue, and by its terms the Hyde Amendment excludes any limit on the expenditure of such private funds.

The regular practices of other federal agencies confirm that there’s no federal prohibition on “facilitation” of abortions beyond the Hatch Act.  For example, when these same ORR minors reach the age of maturity they’ll presumably be detained by ICE, at which point that agency would not only permit them to travel to a clinic to obtain abortions, but would also “arrange for transportation at no cost to the detainee for the medical appointment.”  Similarly, if an unaccompanied pregnant minor were in federal prison for conviction of a criminal offense, the Bureau of Prisons would “arrange for an abortion to take place.”

If no federal law prohibits these forms of “facilitation,” a fortiori there is no bar on ORR taking the steps its own policies (but not the P.I.) require.  Indeed, that’s why ORR itself, during the Bush and Obama Administrations, did not violate any bar on “facilitation of abortion” when it permitted minors to obtain abortions using private funds.

DOJ’s Argument that the ORR Policy is Legal Because the Minors’ Burden is “Self-Imposed” and Can be Cured by Leaving the United States

Finally, just a couple of words about the government’s by-now familiar argument that the ORR policy doesn’t impose an undue burden because a minor always has the option of simply leaving the United States, in which case ORR would no longer be standing between her and an abortion. 

For starters, this argument doesn’t affect the fact, discussed above, that the ORR policy is invalid for a lack of statutory authority. 

Moreover, the “merits” of DOJ’s “no undue burden because the minor can depart the U.S.” argument are even less defensible than the government's implausible “affirmative facilitation” argument, for reasons I’ve previously explained.  For example:

Taken to its logical extreme, it would mean that any State could completely prohibit abortion [within its jurisdiction]—because, after all, a woman has the “option” of traveling to one of the other 49 states, or any of 120 or so other nations, to obtain an abortion:  and so, presto!—no undue burden.

This argument is so unconvincing that, during the October 20[, 2017] argument, Judge Kavanaugh, who was sympathetic to ORR (albeit on a theory that ORR has declined to embrace, as I explained earlier), tried to signal to DOJ that it should abandon its “leaving the country is an option” argument (p. 75 of the transcript).  “[On] your theory,” he asked the DOJ lawyer, “[c]ould the State of Texas pass a law . . . that says that no hospital, clinic, [or] doctor may perform an abortion on a woman who’s not in the country lawfully—on the theory that she can return to the home country?” (pp. 16-17).  The DOJ lawyer never really answered the question—and with good reason, because it was, in effect, a rhetorical question with an obvious answer:  Judge Kavanaugh was trying, not so subtly, to show DOJ that it’s an absurd proposition and thus a dead loser.

In its opening brief (at p.40), DOJ now adds a related argument:  Any burden on the minors’ rights to obtain abortions, writes DOJ, is not the fault of ORR but is instead “a self-imposed obstacle” that the minors brought on themselves by coming to the United States, thus triggering their detention by ORR.

This audacious argument has the same flaws as the “no burden because the minors can leave” argument:  It does not affect the ultra vires nature of the ORR policy.  Nor does it make a whole lot of sense when considered in the context of the history of cases challenging state abortion laws.  A woman living in State A surely is not estopped from challenging its abortion laws merely because she “voluntarily” moved there from State B.

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