Rochelle Garza v. Eric Hargan [ORDER IN SLIP OPINION FORMAT]

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED ON: OCTOBER 24, 2017

No. 17-5236

ROCHELLE GARZA, AS GUARDIAN AD LITEM TO

UNACCOMPANIED MINOR J.D., ON BEHALF OF HERSELF AND

OTHERS SIMILARLY SITUATED,

APPELLEE

v.

ERIC D. HARGAN, ACTING SECRETARY, HEALTH AND HUMAN

SERVICES, ET AL.,

APPELLANTS

On Petition for Rehearing En Banc

Before: Garland, Chief Judge; Henderson***, Rogers, Tatel,

Griffith***, Kavanaugh***, Srinivasan, Millett**, Pillard*, and

Wilkins, Circuit Judges

ORDER

Upon consideration of appellee’s petition for rehearing en

banc and the supplements thereto, the response to the petition

and the supplement to the response, the corrected brief for amici

curiae States of New York, California, Connecticut, Delaware,

Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon,

Pennsylvania, Vermont, and Washington, and the District of

Columbia in support of appellee’s petition, and the vote in favor

of the petition by a majority of the judges eligible to participate;

2

and appellee’s motion to recall the mandate and petition for en

banc consideration of appellee’s motion to recall the mandate,

it is

ORDERED that the mandate be recalled. The Clerk of the

district court is directed to return forthwith the mandate issued

October 20, 2017. It is

FURTHER ORDERED that appellee’s petition for

rehearing en banc be granted. This case has been considered by

the court sitting en banc without oral argument, no judge having

requested oral argument. It is

FURTHER ORDERED that the order filed October 20,

2017 be vacated, except that the administrative stay remains

dissolved. It is

FURTHER ORDERED that appellants’ emergency

motion for stay pending appeal be denied because appellants

have not met the stringent requirements for a stay pending

appeal, see Nken v. Holder, 556 U.S. 418, 434 (2009),

substantially for the reasons set forth in the October 20, 2017

dissenting statement of Circuit Judge Millett.1 The case is

hereby remanded to the district court for further proceedings to

amend the effective dates in paragraph 1 of its injunction. The

dates in paragraph 1 have now passed, and the parties have

proffered new evidence and factual assertions concerning the

expected duration of custody and other matters. The district

court is best suited to promptly determine in the first instance

the appropriate dates for compliance with the injunction. In so

doing, the district court retains full discretion to conduct

proceedings and make any factual findings deemed necessary

and appropriate to the district court’s exercise of its equitable

judgment, consistent with this order, including with regard to

any of the factual disputes that were raised for the first time on

appeal. See Ayotte v. Planned Parenthood of N. New England,

546 U.S. 320, 330-31 (2006); Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).

3

The Clerk is directed to issue the mandate forthwith.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken Meadows

Deputy Clerk

* Circuit Judge Pillard did not participate in this matter.

** A statement by Circuit Judge Millett, concurring in the

disposition of the case, is attached to this order.

*** A statement by Circuit Judge Henderson, dissenting from

the disposition of the case, is attached to this order.

*** A statement by Circuit Judge Kavanaugh, joined by Circuit

Judges Henderson and Griffith, dissenting from the disposition

of the case, is attached to this order.

_____________

1

As both parties agree, the court has jurisdiction over this

appeal because the district court’s temporary restraining order

was more akin to preliminary injunctive relief and is therefore

appealable under 28 U.S.C. § 1292(a)(1). See Sampson v.

Murray, 415 U.S. 61, 86 n.58 (1974).

MILLETT, Circuit Judge, concurring:

While I disagreed with the panel order, I recognize that my

colleagues labored hard under extremely pressured conditions

to craft a disposition that comported with their considered view

of the law’s demands.

Fortunately, today’s decision rights a grave constitutional

wrong by the government. Remember, we are talking about a

child here. A child who is alone in a foreign land. A child who,

after her arrival here in a search for safety and after the

government took her into custody, learned that she is pregnant.

J.D. then made a considered decision, presumably in light of

her dire circumstances, to terminate that pregnancy. Her

capacity to make the decision about what is in her best interests

by herself was approved by a Texas court consistent with state

law. She did everything that Texas law requires to obtain an

abortion. That has been undisputed in this case.

What has also been expressly and deliberately uncontested

by the government throughout this litigation is that the Due

Process Clause of the Fifth Amendment fully protects J.D.’s

right to decide whether to continue or terminate her pregnancy.

The government—to its credit—has never argued or even

suggested that J.D.’s status as an unaccompanied minor who

entered the United States without documentation reduces or

eliminates her constitutional right to an abortion in compliance

with state law requirements.

Where the government bulldozed over constitutional

lines was its position that—accepting J.D.’s constitutional right

and accepting her full compliance with Texas law—J.D., an

unaccompanied child, has the burden of extracting herself from

custody if she wants to exercise the right to an abortion that the

government does not dispute she has. The government has

insisted that it may categorically blockade exercise of her

constitutional right unless this child (like some kind of legal

Houdini) figures her own way out of detention by either (i)

2

surrendering any legal right she has to stay in the United States

and returning to the abuse from which she fled, or (ii) finding

a sponsor—effectively, a foster parent—willing to take custody

of her and to not interfere in any practical way with her abortion

decision.

That is constitutionally untenable, as the en banc court

agrees. Settled precedent from Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016),

establishes that the government may not put substantial and

unjustified obstacles in the way of a woman’s exercise of her

right to an abortion pre-viability. The government, however,

has identified no constitutionally sufficient justification for

asserting a veto right over J.D. and Texas law.

Judge Kavanaugh’s dissenting opinion claims that the

court has somehow broken new constitutional ground by

authorizing “immediate abortion on demand” by “unlawful

immigrant minors” (Judge Kavanaugh’s Dissent Op. 1). What

new law? It cannot be J.D.’s status as an undocumented

immigrant because the government has accepted that her status

does not affect her constitutional right to an abortion, as Judge

Kavanaugh’s opinion acknowledges on the next page (Dissent

Op. 2). Accordingly, in this litigation, J.D., like other minors

in the United States who satisfy state-approved procedures, is

entitled under binding Supreme Court precedent to choose to

terminate her pregnancy. See, e.g., Bellotti v. Baird, 443 U.S.

622 (1979). The court’s opinion gives effect to that

concession; it does not create a “radical” “new right” (Judge

Kavanaugh Dissent Op. 1) by doing so. 1

1

Because at no point in its briefing or oral argument in this

court or the district court did the government dispute that J.D. has a

constitutional right to obtain an abortion, the government has

forfeited any argument to the contrary. See, e.g., Koszola v. FDIC,

3

Beyond that, it is unclear why undocumented status should

change everything. Surely the mere act of entry into the United

States without documentation does not mean that an

immigrant’s body is no longer her or his own. Nor can the

sanction for unlawful entry be forcing a child to have a baby.

The bedrock protections of the Fifth Amendment’s Due

Process Clause cannot be that shallow.

Abortion on demand? Hardly. Here is what this case

holds: a pregnant minor who (i) has an unquestioned

constitutional right to choose a pre-viability abortion, and (ii)

has satisfied every requirement of state law to obtain an

abortion, need not wait additional weeks just because she—in

the government’s inimitably ironic phrasing—“refuses to

leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That

sure does not sound like “on demand” to me. Unless Judge

Kavanaugh’s dissenting opinion means the demands of the

Constitution and Texas law. With that I would agree.

1. Sponsorship

The centerpiece of the panel order (and now Judge

Kavanaugh’s dissenting opinion at 2-3) was the conclusion that

forcing J.D. to continue her pregnancy for multiple more weeks

is not an “undue burden” as long as the sponsorship search is

undertaken “expeditiously.” Panel Order at 1. The panel order

then treated its ordered eleven-day delay as just such an

expeditious process.

But that starts the clock long after the horses have left the

gate. The sponsorship search has already been underway for

393 F.3d 1294, 1299 n.1 (D.C. Cir. 2005). In fact, at oral argument,

government counsel affirmed, in response to a direct question, that

the argument was waived in this case. Oral Arg. 17:50; see, e.g., GSS

Group Ltd. v. National Port Auth. of Liberia, 822 F.3d 598, 608

(D.C. Cir. 2016).

4

now-almost seven weeks. Throughout all of that time, the

government was under a statutory obligation to find a sponsor

if one was available. See 8 U.S.C. § 1232(c)(2). None

materialized. Tacking on another eleven days to an already

nearly seven-week sponsorship hunt—that is, enforcing an

almost nine week delay before J.D. can even start again the

process of trying to exercise her right—is the antithesis of

expedition. A nine-week waiting period before litigation can

start or resume, if adopted by a State, would plainly be

unconstitutional. Cf. Whole Woman’s Health, 136 S. Ct. at

2318 (striking restrictions on abortion providers as unduly

burdensome, noting in part “clinics’ experiences since the

admitting-privileges requirement went into effect of 3-week

wait times”) (citations omitted).

For very good reason, the sponsorship process is anything

but expeditious. The sponsor is much like a foster parent,

someone who chooses to house and provide for a child

throughout her time in the United States, and who promises to

ensure her appearance at all immigration proceedings. To

protect these acutely vulnerable children from trafficking,

sexual exploitation, abuse, and neglect, Congress requires the

Department of Health and Human Services to be careful in its

review and restrictive in who can apply. See 8 U.S.C. § 1232.

To that end, agency regulations provide that potential sponsors

must either be related to J.D. or have some “bona fide social

relationship” with the child that “existed before” her arrival in

the United States. 2

2

Office of Refugee Resettlement, Section 2: Safe and Timely

Release from ORR Care, available at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-

states-unaccompanied-section-2 (last visited Oct. 24, 2017) (“In the

absence of sufficient evidence of a bona fide social relationship with

the child and/or the child’s family that existed before the child

5

On top of that, the panel’s order did not say that, at the

end of its eleven days, J.D. could terminate her pregnancy if no

sponsor were found. Quite the opposite: The order just

stopped everything—except, critically, the continuation of

J.D.’s pregnancy—until October 31st, at which time J.D.

would have to restart the litigation all over again unless a

sponsor was lucked upon. There is nothing expeditious about

the prolonged and complete barrier to J.D.’s exercise of her

right to terminate her pregnancy that the panel order allowed

the government to perpetuate.

Nor was any constitutionally sound justification for the

order’s imposition of eleven more days on top of the already

elapsed seven weeks ever advanced by the government. In fact,

the government (i) never requested a stay to find a sponsor; (ii)

never asked for a remand; (iii) never suggested in briefing or

oral argument that there was any prospect of finding a sponsor

at all, let alone finding one in the next eleven days or even in

the foreseeable future; (iv) never even hinted, since no family

member has been approved as a sponsor, that a non-family

member could be identified, vetted, and take custody of J.D.

within eleven days; and (v) never made any factual or legal

argument contending that the already-seven-week-long-and-

counting sponsorship process was an “expeditious” process or

the type of short-term burden that could plausibly pass muster

under Supreme Court precedent to bar an abortion.

All the government argues with respect to sponsorship was

that its flat and categorical prohibition of J.D.’s abortion was

permissible because she could leave government custody if a

sponsor were found or she surrendered any claim of legal right

to stay here and voluntarily departed. Oral Arg. 12:35; 24:30–

migrated to the United States, the child will not be released to that

individual.”) (emphases added).

6

25:15. Custody, the government insists, is the unaccompanied

child’s problem to solve.

A detained, unaccompanied minor, however, has precious

little control over the sponsorship process. The Department of

Health and Human Services is statutorily charged with finding,

vetting, and approving sponsors. See 8 U.S.C. § 1232(c); 6

U.S.C. § 279. So the government’s position that J.D. cannot

exercise her constitutional right unless the government

approves a sponsor imposes a flat prohibition on her

reproductive freedom that J.D. has no independent ability to

overcome.

Nor does sponsorship bear any logical relationship to

J.D.’s decision to terminate the pregnancy. Because J.D. has

obtained a judicial bypass order from a Texas court that allows

her to decide for herself whether an abortion is in her own best

interests, a sponsor would have no ability to control or

influence J.D.’s decision. See Texas Family Code § 33.003(i-

3). Accordingly, finding a sponsor and allowing J.D. to

exercise her unchallenged constitutional right are not mutually

exclusive. The two can and should proceed simultaneously.

Judge Kavanaugh’s dissenting opinion (at 4) suggests that

it would be good to put J.D. “in a better place when deciding

whether to have an abortion.” That, however, is not any

argument the government ever advanced. The only value of

sponsorship identified by the government was that

sponsorship, like voluntary departure from the United States,

would get J.D. and her pregnancy out of the government’s

hands.

In any event, even if sponsorship, as Judge Kavanaugh

supposes, might be more optimal in a policy sense, J.D. has

already made her decision, and neither the government nor the

dissenting opinion identifies a constitutionally sufficient

justification consistent with Supreme Court precedent for

7

requiring J.D. to wait for what may or may not be a better

environment. The dissenting opinion further assumes that J.D.

is different because she lacks a “support network of friends and

family.” Judge Kavanaugh’s Dissent Op. 5. Unfortunately, the

central reason for the bypass process is that pregnant girls and

women too often find themselves in dysfunctional and

sometimes dangerous situations—such as with sexually or

physically abusive parents and spouses—in which those

networks have broken down. See Texas Family Code

§ 33.003(i-3) (authorizing bypass when the court finds that “the

notification and attempt to obtain consent would not be in the

best interest of the minor[]”). It thus would require a troubling

and dramatic rewriting of Supreme Court precedent to make

the sufficiency of someone’s “network” an added factor in

delaying the exercise of reproductive choice even after

compliance with all state-mandated procedures.

“Voluntary” departure is not a constitutionally adequate

choice either given both the life-threatening abuse that J.D.

claims to face upon return, and her potential claims of legal

entitlement to remain in the United States. See Sealed Decl.; 8

U.S.C. § 1101(a)(27)(J) (special immigrant juvenile status); 8

C.F.R. § 204.11. 3 Notably, while presenting a legal argument

3

While the government now objects that J.D. has not

previously identified on which statutory basis she would seek relief

from removal, Appellants’ Opp’n to Reh’g Pet. 5–6, 14, J.D. has

argued all along that her exercise of her unchallenged right under the

Due Process Clause to an abortion could not be conditioned on her

“giv[ing] up her opportunity to be reunited with family here in the

United States, or forcing her to return to her home country and

abuse.” Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending

Appeal 18; see Pl.’s Reply in Supp. of Mot. for TRO 6 (“The

government should not be allowed to use her constitutional right to

access abortion as a bargaining chip to trade for immigration

status[.]”). While she had not yet cited to particular statutory

8

that relied heavily on voluntary departure to defend its abortion

prohibition, government counsel was unable to confirm at oral

argument whether or how voluntary departure actually works

for unaccompanied minors over whom the government is

exercising custody. See Oral Arg. 28:15–28:50; cf. 6 U.S.C.

§ 279(b)(2)(B) (restricting the release of unaccompanied

minors on their own recognizance). The government has put

nothing in the record to suggest that it is in the practice of

putting children on airplanes all alone and just shipping them

back to abusive and potentially life-endangering situations.

2. Facilitation

The government argues that it need not “facilitate” J.D.’s

decision to terminate her pregnancy. But the government is

engaged in verbal alchemy. To “facilitate” something means

“[t]o make (an action, process, etc.) easy or easier; to promote,

help forward; to assist in bringing about (a particular end or

result).” 4 This case does not ask the government to make things

easier for J.D. The government need not pay for J.D.’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; J.D. 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 J.D. has

advised that it is willing to handle any necessary logistics, just

as it would for medical appointments if J.D. were to continue

her pregnancy. The government also admitted at oral argument

provisions, that presumably is because the government has not yet

initiated removal proceedings.

4

See OXFORD ENGLISH DICTIONARY ONLINE (“facilitate” def.

1(a)), http://www.oed.com/view/Entry/67460?redirectedFrom=

facilitate#eid (last visited Oct. 24, 2017).

9

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. So on the record of this case, the government

does not have to facilitate—make easier—J.D.’s termination of

her pregnancy. It just has to not interfere or make things

harder.

The government’s suggestion of sponsorship as a

facilitation-free panacea also overlooks that it would require

substantial governmental effort and resources for J.D. to be

placed into the hands of a sponsor who must enter into an

agreement with the government and is responsible for ensuring

the minor’s appearance at all immigration proceedings. 5 While

after expending all of its resources to find, vet and approve the

transfer, the government’s ongoing ties to sponsors are

presumably less than for a grantee, the government has put no

facts in the record or any argument as to why that difference in

degree should be constitutionally sufficient. In any event,

transferring J.D. into the custody of the guardian ad litem to

obtain the abortion would require far less use of governmental

resources and personnel and far less facilitation. The

government’s desire to have as little to do as possible with

J.D.’s exercise of her constitutional right while in custody thus

seems erratic.

The government’s claim that it does not think that an

abortion is in J.D.’s best interests does not work either. The

judicial bypass already put that best interests decision in J.D.’s

hands. On top of that, the government does not even claim that

it is making an individualized “best interests” judgment in

5

See Office of Refugee Resettlement, Section 2.8.1: After Care

Planning, available at

https://www.acf.hhs.gov/orr/resource/children-entering-the-united-

states-unaccompanied-section-2 (last visited Oct. 24, 2017).

10

forbidding J.D.’s abortion. It is simply supplanting her legally

authorized best interests judgment with its own categorical

position against abortion—which is something not even a

parent or spouse or State could do. Only the big federal

government gets this veto, we are told.

The government unquestionably is fully entitled to have its

own view preferring the continuation of pregnancy, and to even

require the disclosure of information expressing that view. But

the government’s mere opposition to J.D.’s decision is not an

individualized “best interests” judgment within any legally

recognized meaning of that term, and its asserted categorical

bar to abortion is without constitutional precedent.

3. Abuse of Discretion Review

In resolving this case, it must be remembered that this case

arises on abuse-of-discretion review of a district court’s

injunctive order. See, e.g., Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). And

the expedition with which the panel and now the en banc court

have acted underscores that time is a zero-sum matter in this

case. J.D. is already into the second trimester of her pregnancy,

which means that, as days slip by, the danger that the delayed

abortion procedure poses to her health increases materially.

We are told that waiting even another week could increase the

risk to J.D.’s health, the potential complexity of the procedure,

and the great difficulty of locating an abortion provider in

Texas. 6 The sealed declaration filed in this case attests that a

6

Oral Arg. 1:13:45-1:15:10 (Counsel for J.D.: “Texas law

requires counseling at least 24 hours in advance of the procedure by

the same doctor who is to provide the abortion. Because of the

limited availability of doctors to provide abortions in Texas, the same

doctor is not always at the facility in south Texas. So, for example,

the doctor that provided the counseling yesterday to J.D. is there

11

compelled return to her country at this time would expose her

to even more life-threatening physical abuse.

The irreparable injury to J.D. of postponing termination of

her pregnancy—the weekly magnification of the risks to her

health and the ever-increasing practical barriers to obtaining an

abortion in Texas—have never been factually contested by the

government. J.D.’s counsel has advised, and the government

has not disputed, that she is on the cusp of having to travel

today and on Saturday, but is not the same doctor who is there next

week. So next week, there is a different doctor there on Monday and

Tuesday, so if J.D. were allowed to have the abortion next week, she

would have to be, unless this court declares otherwise, * * *

counseled by this different doctor there on Monday and wait 24 hours

to have the abortion on Tuesday. * * * [After Tuesday October 24,

2017], we are looking at the following week. The doctor that is there

Thursday, Friday and Saturday, the following week * * * [is the

doctor that only performs abortions at 15.6 weeks]. And we are very

concerned that she is on the cusp, so even if she is able to go next

week, she may be past the limit for that particular doctor.”); Reh’g

Pet. 4–5; Appellee’s Opp’n to Appellants’ Mot. for a Stay Pending

Appeal 3; see Williams v. Zbaraz, 442 U.S. 1309, 1314–1315 (1979)

(Stevens, J., sitting as Circuit Justice) (evidence of an increased risk

of “maternal morbidity and mortality” supports a claim of irreparable

injury); Linda A. Bartlett, et al., Risk Factors for Legal Induced

Abortion—Related Mortality in the United States, 103:4 OBSTETRICS

& GYNECOLOGY 729 (April 2004) (relative risk from abortion

increases 38% each gestational week); Cates, W. Jr, Schulz, K.F.,

Grimes, D.A., Tyler, C.W. Jr., The Effect of Delay and Method

Choice on the Risk of Abortion Morbidity, FAMILY PLANNING

PERSPECTIVES 1977; 9:266, 273 (“[I]f a woman delays beyond the

eighth week up to 10 weeks, the major morbidity rate is 0.36, which

is 57 percent higher than her risk at eight or fewer weeks. Similarly,

if she delays her abortion procedure until the 11-12-week interval,

she increases her relative risk of major morbidity by 91 percent.”).

12

hundreds of miles to obtain an abortion. See Appellee’s Opp’n

to Appellants’ Mot. for a Stay Pending Appeal 9 (representing

that, as of October 19, 2017, depending on which doctor is

available, it may be that J.D.’s “only option next week would

be to travel hundreds of miles to a more remote clinic”); Reh’g

Pet. 5; supra note 6. Likewise, at no time before the district

court or the panel did the government’s briefing or oral

argument dispute J.D.’s claim of severe child abuse or ask for

fact finding on that claim.

On the other side of the balance, the government asserts

only its opposition to an abortion by J.D. as an unaccompanied

minor in the custody of a Department of Health and Human

Services grantee. That is an acutely selective form of

resistance since the government acknowledges it would not

apply were J.D. to turn 18 and be moved to Immigration and

Customs Enforcement custody or were she a convicted

criminal in Bureau of Prisons custody. Oral Arg. 9:20–11:45.

Under current governmental policy and regulations, those

women are permitted to terminate their pregnancies. 7 Given

that dissonance in the government’s position, the balancing of

interests weighs heavily in J.D.’s favor.

In short, I fully agree with the en banc court’s decision to

deny the government’s motion for a stay and to remand for

further expeditious proceedings and any appropriate fact

finding, especially in light of the factual disputes surfaced for

the first time in the rehearing papers.

Because J.D.’s right to an abortion under the Due Process

Clause is unchallenged and because J.D. has done everything

that Texas law requires (and more) to obtain an abortion, the

government bore the burden of coming forward with a

7

See ICE Guidelines, Detention Standard 4.4, Medical Care,

available at https://www.ice.gov/doclib/detention-

standards/2011/medical_care_women.pdf; 28 C.F.R. § 551.23.

13

constitutionally sufficient justification for flatly forbidding

termination of her pregnancy. The government’s mere hope

that an unaccompanied, abused child would make the problem

go away for it by either (i) surrendering all of her legal rights

and leaving the United States, or (ii) finding a sponsor the

government itself could never find is not a remotely

constitutionally sufficient reason for depriving J.D. of any

control over this most intimate and life-altering decision. The

court today correctly recognizes that J.D.’s unchallenged right

under the Due Process Clause affords this 17-year-old a

modicum of the dignity, sense of self-worth, and control over

her own destiny that life seems to have so far denied her.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

Does an alien minor who attempts to enter the United States

eight weeks pregnant—and who is immediately apprehended

and then in custody for 36 days between arriving and filing a

federal suit—have a constitutional right to an elective abortion?

The government has inexplicably and wrongheadedly failed to

take a position on that antecedent question. I say

wrongheadedly because at least to me the answer is plainly—

and easily—no. To conclude otherwise rewards lawlessness

and erases the fundamental difference between citizenship and

illegal presence in our country.

The en banc Court endorses or at least has no problem with

this result. By virtue of my colleagues’ decision, a pregnant

alien minor who attempts to enter the United States illegally is

entitled to an abortion, assuming she complies with state

abortion restrictions once she is here. Under my colleagues’

decision, the minor need not have “developed substantial

connections with this country,” United States v. Verdugo-

Urquidez, 494 U.S. 259, 271 (1990), as the plaintiff here

plainly has not. Under my colleagues’ decision, the minor need

not have “effected an entry into the United States,” Zadvydas

v. Davis, 533 U.S. 678, 693 (2001), because the plaintiff here

did not, see id. (alien “paroled into the United States pending

admissibility,” without having “gained [a] foothold,” has “not

effected an entry”). Under my colleagues’ decision, it is

difficult to imagine an alien minor anywhere in the world who

will not have a constitutional right to an abortion in this

country. Their action is at odds with Supreme Court precedent.

It plows new and potentially dangerous ground. Accordingly,

I dissent from the vacatur of the stay pending appeal.

I. BACKGROUND

In or about early July 2017, 17-year-old Jane Doe (J.D.)

became pregnant. On or about September 7, 2017, she

attempted to enter the United States illegally and

2

unaccompanied. By J.D.’s own admission, authorities detained

her “upon arrival.” District Court Docket Entry (Dkt. No.) 1-

13 at 1. She has since remained in federal custody—in a

federally funded shelter—because she is an “unaccompanied

alien child.” 6 U.S.C. § 279(g)(2) (“unaccompanied alien

child” is “a child who,” inter alia, “has no lawful immigration

status in the United States” and “has not attained 18 years of

age”).

The Office of Refugee Resettlement (ORR) of the United

States Department of Health and Human Services (HHS) is

responsible for “unaccompanied alien children who are in

Federal custody by reason of their immigration status.” 6

U.S.C § 279(b)(1)(A). In March 2008, HHS announced a

“[p]olicy” that “[s]erious medical services, including . . .

abortions, . . . require heightened ORR involvement.” HHS,

Medical Services Requiring Heightened ORR Involvement

(Mar. 21, 2008), perma.cc/LDN8-JNL5. In March 2017,

consistent with that policy, ORR further announced that shelter

personnel “are prohibited from taking any action that facilitates

an abortion without direction and approval from the Director

of ORR.” Dkt. No. 3-5 at 2.

According to the declaration of an ORR official, J.D. was

physically examined while in custody and “was informed that

she [is] pregnant.” Dkt. No. 10-1 at 2. J.D.’s counsel interprets

the declaration to say that “J.D. did not learn that she was

pregnant until after her arrival in the United States.” Pl.’s Opp.

to Defs.’ Emergency Mot. for Stay Pending Appeal (Opp.) 22-

23; see also Panel Dissent of Millett, J. (Panel Dissent) 2

(“After entering the United States, [J.D.] . . . learned that she is

pregnant.”). But the declaration does not rule out that J.D.

knew she was pregnant even before the examination. Nor has

J.D. herself alleged that she first learned of her pregnancy in

this country. See generally Dkt. No. 1-13 at 1 (J.D.’s

3

declaration in support of complaint). And it is highly likely she

knew when she attempted to enter the United States that she

was pregnant, as she was at least eight weeks pregnant at the

time. 1 Notably, elective abortion is illegal in J.D.’s home

country. Oral Arg. Recording 29:19-29:34.

J.D. requested an abortion. The evidence before us is that

it is an elective abortion: nothing indicates it is necessary to

preserve J.D.’s health. 2 J.D.’s request was relayed to the ORR

Director, who denied it. On October 13, 2017—having spent a

mere 36 days in the United States, all of them in custody—J.D.

filed suit in district court, enlisting this country’s courts to

vindicate (inter alia) her alleged Fifth Amendment right to an

abortion. The next day, she applied for a temporary restraining

order (TRO) and moved for a preliminary injunction.

The government opposed J.D.’s application and motion.

For reasons known only to the government, it did not take a

position on whether J.D.—as an alien who attempted to enter

the United States illegally and who has no substantial

connections with this country—has any constitutional right to

an abortion. Instead the government argued that ORR has

placed no “undue burden” on the alleged right. Dkt. No. 10 at

11-16 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833 (1992)). At the TRO hearing, the district court repeatedly

pressed the government about whether J.D. has a constitutional

right to an abortion. The government emphasized that it was

1

A recent declaration filed under seal by J.D.’s attorney ad

litem provides further circumstantial evidence that J.D. left her home

country because of her pregnancy. Cortez Decl. ¶ 8.

2

At oral argument, HHS stated its policy is that an emergency

abortion, which it interprets to include a “medically necessary”

abortion, would be allowed. Oral Arg. Recording 20:00-20:27.

4

“not taking a . . . position” but was “not going to give [the court]

a concession” either. Opp., Supplement 14.

The district court issued a TRO requiring that the

government allow J.D. to be transported to an abortion provider

for performance of the procedure. The government appealed

the TRO to this Court and sought a stay pending appeal. At

oral argument, the government repeatedly stated that it takes no

position on whether J.D. has a constitutional right to an

abortion, Oral Arg. Recording 8:10-8:46, 16:43-17:12, and that

it instead “assume[s] for the purposes of . . . argument” that she

has such a right, Oral Arg. Recording 17:27-17:52. 3

On October 20, 2017, over a dissent, a motions panel of

this Court issued an order directing the district court to allow

HHS until close of business October 31 to find a suitable

sponsor to take custody of J.D. so that HHS can release her

from its custody. Without deciding whether J.D. has a

constitutional right to an abortion, the panel concluded that a

short delay to secure a sponsor does not unduly burden any

alleged right if the process is expeditiously completed by close

of business October 31.

3

Under insistent pressure to state whether the government was

“waiving” the issue, counsel for the government said yes in the heat

of the moment. Oral Arg. Recording 17:41-17:52. But the next

moment, when reminded of the difference between forfeiture and

waiver—a distinction that lawyers often overlook or misunderstand,

cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (even “jurists

often use the words interchangeably”)—counsel effectively retracted

the foregoing statement, saying she was “not authorized to take a

position” on whether J.D. has a constitutional right to an abortion,

Oral Arg. Recording 17:52-18:51.

5

On October 22, 2017, J.D. filed a petition for rehearing en

banc. Today, the Court grants the petition, vacates the panel’s

October 20 order and denies the government’s motion for stay

pending appeal “substantially for the reasons set forth in” the

panel dissent.

II. ANALYSIS

As I noted at the outset, the en banc Court’s decision in

effect means that a pregnant alien minor who attempts to enter

the United States illegally is entitled to an abortion, assuming

she complies with state abortion restrictions once she is here.

Although the government has for some reason failed to dispute

that proposition, it is not the law.

A. WE CAN AND MUST DECIDE THE ANTECEDENT

QUESTION OF WHETHER J.D. HAS A CONSTITUTIONAL

RIGHT TO AN ABORTION.

The Supreme Court has held that if a party “fail[s] to

identify and brief” “an issue ‘antecedent to . . . and ultimately

dispositive of’ the dispute,” an appellate court may consider the

issue sua sponte. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v. Ohio

Power Co., 498 U.S. 73, 77 (1990)); cf. United States v. Bowie,

198 F.3d 905, 913 (D.C. Cir. 1999) (“We are never bound to

accept the government’s confession of error” (citing Young v.

United States, 315 U.S. 257, 258 (1942), United States v.

Pryce, 938 F.2d 1343, 1351-52 (D.C. Cir. 1991) (Randolph, J.,

concurring))). Here, the question of whether J.D. has a

constitutional right to an abortion is “antecedent to” any issue

of undue burden. And the antecedent question is “dispositive

of” J.D.’s Fifth Amendment claim, at least now that my

colleagues have reinstated the TRO on the apparent theory that

the claim is likely meritorious. Accordingly, we can and

should expressly decide the antecedent question.

6

True, we should not ordinarily confront a broad

constitutional question “if there is also present some other

ground upon which the case may be disposed of,” Ashwander

v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring),

including if the alternative is a “narrower” constitutional

ground, Greater New Orleans Broad. Ass’n v. United States,

527 U.S. 173, 184 (1999). 4 But in the analogous context of

qualified immunity, we are “permitted . . . to avoid

avoidance—that is, to determine whether a right exists before

examining” the narrower question of whether the right “was

clearly established” at the time an official acted. Camreta v.

Greene, 563 U.S. 692, 706 (2011). Our discretion in that area

rests on the recognition that it “is sometimes beneficial to

clarify the legal standards governing public officials.” Id. at

707. The same interest is, to put it mildly, implicated here.

Border authorities, immigration officials and HHS itself would

be well served to know ex ante whether pregnant alien minors

who come to the United States in search of an abortion are

constitutionally entitled to one. And under today’s decision,

pregnant alien minors the world around seeking elective

abortions will be on notice that they should make the trip. 5

4

We cannot duck a broad constitutional question if the

alternative ground is not “an adequate basis for decision.” Greater

New Orleans Broad. Ass’n, 527 U.S. at 184. At the panel stage, the

possibility of expeditious sponsorship was an adequate narrower

basis for our decision to briefly delay J.D.’s abortion. By contrast,

today’s result—which has the real-world effect of entitling J.D. to an

abortion—is difficult to explain unless it rests at least in part on the

proposition that J.D. has a constitutional right to an abortion. Even

if I were to assume, without in any way conceding, that J.D. had such

a constitutional right, I would nonetheless stand by the panel order.

5

The panel dissent paid lip service to constitutional avoidance,

Panel Dissent 8, before sweepingly declaring that when alien minors

7

Granted, because of the government’s failure to take a

position, 6 we in theory have discretion not to decide the

antecedent question. But in reality the ship has sailed: as a

result of my colleagues’ decision, J.D. will soon be on her way

to an abortion procedure she would not receive absent her

invocation of the Fifth Amendment. If ever there were a case

in which the public interest compels us to exercise our

“independent power to identify and apply the proper

construction of governing law” irrespective of a party’s

litigating position, U.S. Nat’l Bank of Or., 508 U.S. at 446

(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99

“find themselves on our shores and pregnant” and seeking an

abortion, “the Constitution forbids the government from directly or

effectively prohibiting their exercise of that right in the manner it has

done here.” Panel Dissent 9-10 (emphases added). That is not

judicial modesty.

6

I could not disagree more strongly with Judge Millett’s

characterization of the government’s position on the merits—i.e.,

that it outright “waived” any contention that J.D. has no

constitutional right to an abortion. Millett Concurrence 2-3 n.1. She

must have read different papers and listened to a different argument

from the ones I read and listened to. A waived argument “is one that

a party has knowingly and intelligently relinquished.” Wood v.

Milyard, 132 S. Ct. 1826, 1832 n.4 (2012). The government has

declared time and again that it is not taking a position on whether

J.D. has a constitutional right to an abortion. That is not waiver.

Government counsel in the district court stated that he was neither

raising nor conceding the point. That is not waiver. Government

counsel in this Court stated that she lacked authority to take a

position. That, too, is not waiver: counsel who disclaims such

authority cannot relinquish an argument any more than she can

advance one. All this is beside the point, however, because of our

independent duty to declare the law. See U.S. Nat’l Bank of Or., 508

U.S. at 446.

8

(1991)), this is it. The stakes, both in the short run and the long,

could scarcely be higher.

B. J.D. HAS NO CONSTITUTIONAL RIGHT

TO AN ABORTION.

J.D. is not a U.S. citizen. She is not a permanent resident,

legal or otherwise. According to the record, she has no

connection to the United States, let alone “substantial”

connections. Despite her physical presence in the United

States, J.D. has never entered the United States as a matter of

law and cannot avail herself of the constitutional rights

afforded those legally within our borders. Accordingly, under

a correct interpretation of the law, J.D. has virtually no

likelihood of success on the merits and the TRO issued by the

district court should remain stayed. See Mazurek v. Armstrong,

520 U.S. 968, 970 (1997) (preliminary injunctive relief

unavailable if the plaintiff cannot establish a likelihood of

success on the merits).

“The distinction between an alien who has effected an

entry into the United States and one who has never entered runs

throughout immigration law.” Zadvydas v. Davis, 533 U.S.

678, 693 (2001). Thus a young girl detained at Ellis Island for

a year, and then released to live with her father in the United

States for nearly a decade, “was to be regarded as stopped at

the boundary line and kept there unless and until her right to

enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230

(1925). Even after she was no longer detained, “[s]he was still

in theory of law at the boundary line and had gained no

foothold in the United States.” Id. Nearly six decades ago the

Supreme Court had already said that “[f]or over a half century

this Court has held that the detention of an alien in custody

pending determination of his admissibility does not legally

constitute an entry though the alien is physically within the

9

United States.” Leng May Ma v. Barber, 357 U.S. 185, 188

(1958).

Aliens who have entered the United States—even if

illegally—enjoy “additional rights and privileges not extended

to those . . . who are merely ‘on the threshold of initial entry.’”

Id. at 187 (quoting Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 212 (1953)). “[A]liens receive constitutional

protections when they have come within the territory of the

United States and developed substantial connections with this

country.” United States v. Verdugo-Urquidez, 494 U.S. 259,

271 (1990). Until then—before developing the “substantial

connections” that constitute “entry” for an illegally present

alien—“[t]he Bill of Rights is a futile authority for the alien

seeking admission for the first time to these shores.” Bridges

v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring).

We have repeatedly recognized this principle, as have our

sister circuits and, most important, as has the Supreme Court.

See Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,

concurring in the judgment); Demore v. Kim, 538 U.S. 510, 546

(2003); Shaughnessy, 345 U.S. at 215; Kaplan, 267 U.S. at

230; United States v. Ju Toy, 198 U.S. 253, 263 (1905) (alien

petitioner, “although physically within our boundaries, is to be

regarded as if he had been stopped at the limit of our

jurisdiction, and kept there while his right to enter was under

debate”); Kiyemba v. Obama, 555 F.3d 1022, 1036-37 n.6

(D.C. Cir. 2009) (Rogers, J., concurring in the judgment)

(quoting Mezei, Leng May Ma and Ju Toy in support of

proposition that habeas court can order detainee brought within

U.S. territory without thereby effecting detainee’s “entry” for

any other purpose), vacated on other grounds, 559 U.S. 131

(2010); Ukrainian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d

1374, 1383 (D.C. Cir. 1990) (Sentelle, J., concurring)

10

(summarizing the entry doctrine). 7 Because she has never

entered the United States, J.D. is not entitled to the due process

protections of the Fifth Amendment. See Albathani v. INS, 318

F.3d 365, 375 (1st Cir. 2003) (“As an unadmitted alien present

in the United States, Albathani’s due process rights are

limited”). This is, or should be, clear from the controlling and

7

See also Albathani v. INS, 318 F.3d 365, 375 (1st Cir. 2003);

Nwozuzu v. Holder, 726 F.3d 323, 330 n.6 (2d Cir. 2013) (discussing

Kaplan); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir. 1954)

(“in a literal and physical sense a person coming from abroad enters

the United States whenever he reaches any land, water or air space

within the territorial limits of this nation” but “those who have come

from abroad directly to [an inspection] station seeking admission in

regular course have not been viewed by the courts as accomplishing

an ‘entry’ by crossing the national boundary in transit or even by

arrival at a port so long as they are detained there pending formal

disposition of their requests for admission”); United States v. Carpio-

Leon, 701 F.3d 974, 981 (4th Cir. 2012) (“the crime of illegal entry

inherently carries this additional aspect that leaves an illegal alien’s

status substantially unprotected by the Constitution in many

respects”); Gonzalez v. Holder, 771 F.3d 238, 245 (5th Cir. 2014)

(alien who entered the United States illegally at age seven and

remained for the next 17 years was, under Kaplan, deportable and

ineligible for derivative citizenship despite his father’s intervening

naturalization); Vitale v. INS, 463 F.2d 579, 582 (7th Cir. 1972)

(paroled alien “did not effect an entry into the United States”);

Montgomery v. Ffrench, 299 F.2d 730, 733 (8th Cir. 1962)

(discussing Kaplan); United States v. Argueta-Rosales, 819 F.3d

1149, 1158 (9th Cir. 2016) (“for immigration purposes, ‘entry’ is a

term of art requiring not only physical presence in the United States

but also freedom from official restraint”); United States v. Canals-

Jimenez, 943 F.2d 1284, 1286, 1288 (11th Cir. 1991) (reversing

conviction of alien “found in” the United States illegally because

alien never “entered” the United States in the sense of Kaplan and

Leng May Ma).

11

persuasive authorities marshaled above, which are only a

fraction of the whole.

Even if J.D. did enjoy the protections of the Due Process

Clause, however, due process is not an “all or nothing”

entitlement. In some cases “[i]nformal procedures will

suffice,” Goldberg v. Kelly, 397 U.S. 254, 269 (1970);

“consideration of what procedures due process may require”

turns on “the precise nature of the government function” and

the private interest. Cafeteria Workers Union v. McElroy, 367

U.S. 886, 895 (1961). What the Congress and the President

have legitimately deemed appropriate for aliens “on the

threshold” of our territory, the judiciary may not contravene.

“It is not within the province of the judiciary to order that

foreigners who have never been naturalized, nor acquired any

domicile or residence within the United States, nor even been

admitted into the country pursuant to law, shall be permitted to

enter. . . . As to such persons, the decisions of executive or

administrative officers, acting within powers expressly

conferred by congress, are due process of law.” Nishimura

Ekiu v. United States, 142 U.S. 651, 660 (1892) (emphasis

added). There is a “class of cases” in which “the acts of

executive officers, done under the authority of congress, [are]

conclusive.” Murray’s Lessee v. Hoboken Land & Imp. Co.,

59 U.S. (18 How.) 272, 284 (1855). Among that class of cases

are those brought by aliens abroad, including those who are

“abroad” under the entry doctrine. See Din, 135 S. Ct. at 2139-

40 (Kennedy, J., concurring in the judgment); Kleindienst v.

Mandel, 408 U.S. 753, 769-70 (1972).

Mandel teaches that the Congress’s “plenary power” over

immigration requires the courts to strike a balance between

private and public interests different from the due process that

typically obtains. The Supreme Court “without exception has

sustained” the Congress’s power to exclude aliens, a power

12

“inherent in sovereignty,” consistent with “ancient principles”

of international law and “to be exercised exclusively by the

political branches of government.” Mandel, 408 U.S. at 765-

66. Indeed, “over no conceivable subject is the legislative

power of Congress more complete.” Id. at 766 (quoting

Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339

(1909)) (alteration omitted). The Congress’s power to exclude

includes the power “to prescribe the terms and conditions upon

which [aliens] may come to this country, and to have its

declared policy in that regard enforced exclusively through

executive officers, without judicial intervention.” Id. (quoting

Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895)).

Whatever the merits of different applications of due process

“were we writing on a clean slate,” “the slate is not clean.” Id.

(quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). We must

therefore yield to the Executive, exercising the power lawfully

delegated to him, when he “exercises this power negatively on

the basis of a facially legitimate and bona fide reason.” Id. at

770. Moreover, this deference is required even when the

constitutional rights of U.S. citizens are affected: we may not

“look behind the exercise of that discretion, nor test it by

balancing its justification against the First Amendment

interests” of citizens “who seek personal communication with”

the excluded alien. Id. Thus in Mandel, the Executive

permissibly prohibited an alien communist intellectual to travel

to the United States, where he had been scheduled to speak at

several universities.

Applying Mandel, the Supreme Court recently approved

the Executive’s denial of entry to an Afghan man whose U.S.-

citizen wife was waiting for him in this country. Din, 135 S.

Ct. at 2131 (plurality opinion). The Court in Din was divided

not only over whether the wife had any due process interest in

her husband’s attempt to immigrate but also over whether that

hypothetical interest had been infringed. Compare id.

13

(plurality opinion) (three justices concluding that there is no

due process right “to live together with [one’s] spouse in

America”), with id. at 2139 (Kennedy, J., concurring in the

judgment) (two justices concluding that, even if such a right

exists, the Government’s visa-denial notice is all that due

process can require). Citing Mandel, Justice Kennedy reasoned

that the government’s action in Din was valid, even though it

“burden[ed] a citizen’s own constitutional rights,” because it

was made “on the basis of a facially legitimate and bona fide

reason.” Id. at 2139 (Kennedy, J., concurring in the judgment)

(quoting Mandel, 408 U.S. at 770). 8 Justice Scalia, writing for

himself, the Chief Justice and Justice Thomas, criticized the

dissent’s endorsement of the novel substantive due process

right asserted by the plaintiff, which he characterized as, “in

any world other than the artificial world of ever-expanding

constitutional rights, nothing more than a deprivation of her

spouse’s freedom to immigrate into America.” Id. at 2131

(plurality opinion).

Mandel applies with all the more force here, where a

substantive due process right is asserted not by a U.S. citizen,

nor by a lawful-permanent-resident alien, nor even by an

illegally resident alien, but by an alien minor apprehended

attempting to cross the border illegally and thereafter detained

by the federal government. If J.D. can be detained

indefinitely—which she can be, see Zadvydas, 533 U.S. at 693

(distinguishing Shaughnessy, 345 U.S. 206)—and if she can be

returned to her home country to prevent her from engaging in

disfavored political speech in this country—which she can be,

Mandel, 408 U.S. at 770—and if she can be paroled into the

United States for a decade or more, Kaplan, 267 U.S. at 230,

8

Justice Kennedy’s opinion in Din, because it is narrower than

the plurality opinion, is controlling. See Marks v. United States, 430

U.S. 188, 193 (1977).

14

register for the draft, Ng Lin Chong v. McGrath, 202 F.2d 316,

317 (D.C. Cir. 1952), and see her parents naturalized, Gonzalez

v. Holder, 771 F.3d 238, 239 (5th Cir. 2014), only for her still

to be deported with cursory notice, 8 U.S.C. § 1225—then she

cannot successfully assert a due process right to an elective

abortion.

In concluding otherwise, the Court elevates the right to

elective abortion above every other constitutional entitlement.

Freedom of expression, Mandel, 408 U.S. at 770, freedom of

association, Galvan, 347 U.S. at 523, freedom to keep and bear

arms, United States v. Carpio-Leon, 701 F.3d 974, 975 (4th Cir.

2012), freedom from warrantless search, Verdugo-Urquidez,

494 U.S. at 274-75, and freedom from trial without jury,

Johnson v. Eisentrager, 339 U.S. 763, 784-85 (1950) all must

yield to the “plenary authority” of the Congress and the

Executive, acting in concert, to regulate immigration; but the

freedom to terminate one’s pregnancy is more fundamental

than them all? This is not the law. 9

9

The panel dissent simply assumed that the Supreme Court’s

abortion decisions involving U.S. citizen women—from Roe v. Wade

to Whole Woman’s Health—apply mutatis mutandis to illegal alien

minors. There is no legal analysis to support this assumption, see

generally Panel Dissent 3-6, which is untenable for the reasons I have

described. Judge Millett’s subsequent opinion concurring in the

Court’s en banc disposition does nothing to address that deficit,

offering scarce authority to support its assertion of the thwarting of

a “grave constitutional wrong” by the government and none that

addresses the antecedent constitutional question, which the Court

must decide but which Judge Millett dismisses as waived. Millett

Concurrence 2-3 n.1.

15

The panel dissent warned of outlandish scenarios that will

follow from staying the TRO, 10 Panel Dissent 9, but a stay

maintains the legal status quo. The United States remains a

signatory to the U.N. Convention Against Torture; our law

imposes civil liability on government agents who commit torts

and criminal liability on those who commit crimes; and counsel

have access to detained alien minors, as have J.D.’s counsel.

I cannot improve on the Chief Justice’s criticism of the “false

premise” that

our practice of avoiding unnecessary (and

unnecessarily broad) constitutional holdings

somehow trumps our obligation faithfully to

interpret the law. It should go without saying,

however, that we cannot embrace a narrow ground

of decision simply because it is narrow; it must also

be right. Thus while it is true that “[i]f it is not

necessary to decide more, it is necessary not to

decide more,” sometimes it is necessary to decide

more. There is a difference between judicial

restraint and judicial abdication. When

constitutional questions are “indispensably

necessary” to resolving the case at hand, “the court

must meet and decide them.”

Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J.,

concurring) (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (No.

11,558) (CC Va. 1833) (Marshall, C.J.)).

10

My colleague’s characterization of this case, see, e.g., Millett

Concurrence 13, gives it an undeservedly melodramatic flavor—and

indeed, from the record, especially the sealed affidavit of ORR’s

Jonathan White, is contrary to fact. Sealed Supp. to Defs.’ Resp. to

Pl.’s Pet. for Reh’g En Banc (Oct. 23, 2017). J.D. may be

sympathetic. But even the sympathetic are bound by longstanding

law.

16

The Constitution does not, and need not, answer every question

but diabetics, rape victims and women whose pregnancies

threaten their lives are nevertheless provided for. Contra Panel

Dissent 9.

Although the panel dissent found “deeply troubling” the

argument “that J.D. is not a person in the eyes of our

Constitution,” the argument is nevertheless correct. 11 The

panel dissent’s contrary conclusion is based on a

misunderstanding of the Supreme Court’s immigration due

process decisions, including a mistaken reliance on the dissent

in Jean v. Nelson, 472 U.S. 846, 875 (1985) (Marshall, J.,

dissenting). Writing for the Court in Jean, then-Justice

Rehnquist expressly declined to opine on the alien plaintiffs’

due process rights, see id. at 857 (majority opinion), much less

to hold—as Justice Marshall would have done—that

“regardless of immigration status, aliens within the territorial

jurisdiction of the United States are ‘persons’ entitled to due

process under the Constitution.” The Supreme Court has never

so held. 12 Contra Panel Dissent 9.

11

J.D.’s “personhood” has nothing to do with it. “American

citizens conscripted into the military service are thereby stripped of

their Fifth Amendment rights and as members of the military

establishment are subject to its discipline, including military trials for

offenses against aliens or Americans.” Eisentrager, 339 U.S. at 783.

No one suggests that members of the military—or here, J.D.—are

thereby not “persons.”

12

The panel dissent’s handling of Zadvydas v. Davis also merits

clarification. See Panel Dissent 9. Zadvydas is careful to distinguish

“an alien who has effected an entry into the United States and one

who has never entered” and restates Kaplan’s holding that “despite

nine years’ presence in the United States, an ‘excluded’ alien ‘was

still in theory of law at the boundary line and had gained no foothold

in the United States’” only three sentences before observing, in the

17

It is the panel dissent’s (and now the Court’s) position that

will unsettle the law, potentially to dangerous effect. Having

discarded centuries of precedent and policy, the majority offers

no limiting principle to constrain this Court or any other from

following today’s decision to its logical end. If the Due Process

Clause applies to J.D. with full force, there will be no reason

she cannot donate to political campaigns, despite 52 U.S.C. §

30121’s prohibition on contributions by nonresident foreign

nationals inasmuch as freedom of political expression is plainly

fundamental to our system of ordered liberty. See Citizens

United v. FEC, 558 U.S. 310, 340 (2010). I see no reason that

she may not possess a firearm, notwithstanding 18 U.S.C.

§ 922(g)(5)’s prohibition on doing so while “illegally or

unlawfully in the United States,” see Carpio-Leon, 701 F.3d at

975, inasmuch as “the Second Amendment conferred an

individual right to keep and bear arms,” District of Columbia

v. Heller, 554 U.S. 570, 595 (2008), in recognition of the “basic

right” of self-defense, McDonald v. City of Chicago, 561 U.S.

742, 767 (2010). Even the government’s ability to try accused

war criminals before U.S. military commissions in theater must

be reconsidered as it is premised on the Fifth Amendment’s

territoriality requirement, which today, by vacating the stay,

the Court has so summarily eroded. See Eisentrager, 339 U.S.

at 784-85.

Heedless of the entry doctrine, its extensive pedigree in

our own precedent and its controlling effect in this case, the

Court today assumes away the question of what (if any) process

is due J.D. and proceeds to a maximalist application of some of

the most controverted case law in American jurisprudence. It

does so over the well-founded objections of an Executive

passage quoted by the panel dissent, that “once an alien enters the

country, the legal circumstance changes.” Zadvydas, 533 U.S. at 693

(emphasis added). Zadvydas uses “entry” in its technical sense.

18

authorized to pursue its legitimate interest in protecting fetal

life. See Gonzales v. Carhart, 550 U.S. 124, 145 (2007) (“the

government has a legitimate and substantial interest in

preserving and promoting fetal life”); Casey, 505 U.S. at 853

(recognizing States’ “legitimate interests in protecting prenatal

life”); Roe v. Wade, 410 U.S. 113, 150 (1973) (recognizing “the

State’s interest—some phrase it in terms of duty—in protecting

prenatal life”). Far from faithfully applying the Supreme

Court’s abortion cases, this result contradicts them, along with

a host of immigration and due-process cases the Court declines

even to acknowledge. Garza v. Hargan today takes its place in

the pantheon of abortion-exceptionalism cases.

Accordingly, I respectfully dissent.

KAVANAUGH, Circuit Judge, with whom Circuit Judges

HENDERSON and GRIFFITH join, dissenting:

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government,

when holding a pregnant unlawful immigrant minor in custody,

may seek to expeditiously transfer the minor to an immigration

sponsor before the minor makes the decision to obtain an

abortion. That ruling followed from the Supreme Court’s many

precedents holding that the Government has permissible

interests in favoring fetal life, protecting the best interests of a

minor, and refraining from facilitating abortion. The Supreme

Court has repeatedly held that the Government may further

those interests so long as it does not impose an undue burden

on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially”

adopts the panel dissent and is ultimately based on a

constitutional principle as novel as it is wrong: a new right for

unlawful immigrant minors in U.S. Government detention to

obtain immediate abortion on demand, thereby barring any

Government efforts to expeditiously transfer the minors to their

immigration sponsors before they make that momentous life

decision. The majority’s decision represents a radical

extension of the Supreme Court’s abortion jurisprudence. It is

in line with dissents over the years by Justices Brennan,

Marshall, and Blackmun, not with the many majority opinions

of the Supreme Court that have repeatedly upheld reasonable

regulations that do not impose an undue burden on the abortion

right recognized by the Supreme Court in Roe v. Wade.1

1

The majority’s decision rules against the Government

“substantially for the reasons set forth in” the panel dissent. Given

this ambiguity, the precedential value of this order for future cases

will be debated. But for present purposes, we have no choice but to

2

To review: Jane Doe is 17 years old. She is a foreign

citizen. Last month, she was detained shortly after she illegally

crossed the border into Texas. She is now in a U.S.

Government detention facility in Texas for unlawful immigrant

minors. She is 15-weeks pregnant and wants to have an

abortion. Her home country does not allow elective abortions.

All parties to this case recognize Roe v. Wade and Planned

Parenthood v. Casey as precedents we must follow. All parties

have assumed for purposes of this case, moreover, that Jane

Doe has a right under Supreme Court precedent to obtain an

abortion in the United States. One question before the en banc

Court at this point is whether the U.S. Government may

expeditiously transfer Jane Doe to an immigration sponsor

before she makes the decision to have an abortion. Is that an

undue burden on the abortion right, or not?

Contrary to a statement in the petition for rehearing en

banc, the three-judge panel’s order did not avoid that question.

The panel confronted and resolved that question.

First, the Government has assumed, presumably based on

its reading of Supreme Court precedent, that an unlawful

immigrant minor such as Jane Doe who is in Government

custody has a right to an abortion. The Government has also

expressly assumed, again presumably based on its reading of

Supreme Court precedent, that the Government lacks authority

to block Jane Doe from obtaining an abortion. For purposes of

assume that the majority agrees with and adopts the main reasoning

for the panel dissent. Otherwise, the majority would have no

explanation for the extraordinary step it is taking today. For

accuracy, I therefore use the word “majority” when describing the

main points of the panel dissent. (If any members of the majority

disagreed with any of the main points of the panel dissent, they were

of course free to say as much.)

3

this case, all parties have assumed, in other words, that

unlawful immigrant minors such as Jane Doe have a right under

Supreme Court precedent to obtain an abortion in the United

States.

Second, under Supreme Court precedent in analogous

contexts, it is not an undue burden for the U.S. Government to

transfer an unlawful immigrant minor to an immigration

sponsor before she has an abortion, so long as the transfer is

expeditious.

For minors such as Jane Doe who are in U.S. Government

custody, the Government has stated that it will not provide, pay

for, or otherwise facilitate the abortion but will transfer custody

of the minor to a sponsor pursuant to the regular immigration

sponsor program. Under the regular immigration sponsor

program, an unlawful immigrant minor leaves Government

custody and ordinarily goes to live with or near a sponsor. The

sponsor often is a family member, relative, friend, or

acquaintance. Once Jane Doe is transferred to a sponsor in this

case, the Government accepts that Jane Doe, in consultation

with her sponsor if she so chooses, will be able to decide to

carry to term or to have an abortion.2

The panel order had to make a decision about how

“expeditious” the transfer had to be. Given the emergency

posture in which this case has arisen, the panel order prudently

did not purport to define “expeditious” for all future cases. But

the panel order set a date of October 31 – which is 7 days from

now – by which the transfer had to occur. For future cases, the

term “expeditious” presumably would entail some combination

of (i) expeditious from the time the Government learns of the

2

The minor of course also has to satisfy whatever state-law

requirements are imposed on the decision to obtain an abortion.

4

pregnant minor’s desire to have an abortion and (ii) expeditious

in the sense that the transfer to the sponsor does not occur too

late in the pregnancy for a safe abortion to occur.3 In this case,

although the process by which the case has arrived here has

been marked by understandable confusion over the law and by

litigation filed by plaintiff in multiple forums, the panel order

concluded that a transfer by October 31 – which is 7 days from

now – was permissibly expeditious. This would entail transfer

in week 16 or 17 of Jane Doe’s pregnancy, and the Government

agrees that she could have the abortion immediately after

transfer, if she wishes.

Third, what happens, however, if a sponsor is not found by

October 31 in this case? What happens generally if transfer to

a sponsor does not occur expeditiously? To begin with, a

declaration we just received from the Government states:

“while difficult, it is possible to complete a sponsorship process

for J.D. by 5 P.M. Eastern on October 31, 2017.” The

declaration also lists several ongoing efforts regarding the

sponsorship process. The declaration adds that all components

of the U.S. Government “are willing to assist in helping

expedite the process.”

But if transfer does not work, given existing Supreme

Court precedent and the position the Government has so far

advanced in this litigation, it could turn out that the

Government will be required by existing Supreme Court

precedent to allow the abortion, even though the minor at that

point would still be residing in a U.S. Government detention

facility. If so, the Government would be in a similar position

as it is in with adult women prisoners in federal prison and with

3

To be clear, under Supreme Court precedent, the Government

cannot use the transfer process as some kind of ruse to unreasonably

delay the abortion past the point where a safe abortion could occur.

5

adult women unlawful immigrants in U.S. Government

custody. The U.S. Government allows women in those

circumstances to obtain an abortion. In any event, we can

immediately consider any additional arguments from the

Government if and when transfer to a sponsor is unsuccessful.

In sum, under the Government’s arguments in this case and

the Supreme Court’s precedents, the unlawful immigrant minor

is assumed to have a right under precedent to an abortion; the

Government may seek to expeditiously transfer the minor to a

sponsor before the abortion occurs; and if no sponsor is

expeditiously located, then it could turn out that the

Government will be required by existing Supreme Court

precedent to allow the abortion, depending on what arguments

the Government can make at that point. These rules resulting

from the panel order are consistent with and dictated by

Supreme Court precedent.

The three-judge panel reached a careful decision that

prudently accommodated the competing interests of the parties.

By contrast, under the panel dissent, which is

“substantially” adopted by the majority today, the Government

has to immediately allow the abortion upon the request of an

unlawful immigrant minor in its custody, and cannot take time

to first seek to expeditiously transfer the minor to an immigrant

sponsor before the abortion occurs.4

4

The majority’s order denies the Government’s emergency

motion for stay pending appeal and thus does not disturb the District

Judge’s injunction (with adjusted dates), which required the

Government to facilitate an immediate abortion for Jane Doe.

Therefore, unless the Government can somehow convince the

District Judge to suddenly reconsider her decision, which is

extremely unlikely given the District Judge’s prior ruling on this

matter, the majority’s order today necessarily means that the

6

The majority seems to think that the United States has no

good reason to want to transfer an unlawful immigrant minor

to an immigration sponsor before the minor has an abortion.

But consider the circumstances here. The minor is alone and

without family or friends. She is in a U.S. Government

detention facility in a country that, for her, is foreign. She is

17 years old. She is pregnant and has to make a major life

decision. Is it really absurd for the United States to think that

the minor should be transferred to her immigration sponsor –

ordinarily a family member, relative, or friend – before she

makes that decision? And keep in mind that the Government

is not forcing the minor to talk to the sponsor about the

decision, or to obtain consent. It is merely seeking to place the

minor in a better place when deciding whether to have an

abortion. I suppose people can debate as a matter of policy

whether this is always a good idea. But unconstitutional? That

is far-fetched. After all, the Supreme Court has repeatedly said

that the Government has permissible interests in favoring fetal

life, protecting the best interests of the minor, and not

facilitating abortion, so long as the Government does not

impose an undue burden on the abortion decision.

It is important to stress, moreover, that this case involves

a minor. We are not dealing with adults, although the

majority’s rhetoric speaks as if Jane Doe were an adult. The

law does not always treat minors in the same way as adults, as

the Supreme Court has repeatedly emphasized in the abortion

context.

The majority points out that, in States such as Texas, the

minor will have received a judicial bypass. That is true, but is

irrelevant to the current situation. The judicial bypass confirms

Government must allow an immediate abortion while Jane Doe

remains in Government custody.

7

that the minor is capable of making a decision. For most

teenagers under 18, of course, they are living in the State in

question and have a support network of friends and family to

rely on, if they choose, to support them through the decision

and its aftermath, even if the minor does not want to inform her

parents or her parents do not consent. For a foreign minor in

custody, there is no such support network. It surely seems

reasonable for the United States to think that transfer to a

sponsor would be better than forcing the minor to make the

decision in an isolated detention camp with no support network

available. Again, that may be debatable as a matter of policy.

But unconstitutional? I do not think so.

The majority apparently thinks that the Government must

allow unlawful immigrant minors to have an immediate

abortion on demand. Under this vision of the Constitution, the

Government may not seek to first expeditiously transfer the

minor to the custody of an immigration sponsor before she has

an abortion.5 The majority’s approach is radically inconsistent

with 40 years of Supreme Court precedent. The Supreme Court

has repeatedly upheld a wide variety of abortion regulations

that entail some delay in the abortion but that serve permissible

Government purposes. These include parental consent laws,

parental notice laws, informed consent laws, and waiting

periods, among other regulations. Those laws, of course, may

have the effect of delaying an abortion. Indeed, parental

consent laws in practice can occasion real-world delays of

several weeks for the minor to decide whether to seek her

5

The precedential value of the majority’s decision for future

cases is unclear and no doubt will be the subject of debate. But one

limit appears clear and warrants mention: The majority’s decision

requires the Government to allow the abortion even while the minor

is residing in Government custody, but it does not require the

Government to pay for the abortion procedure itself. The

Government’s policy on that issue remains undisturbed.

8

parents’ consent and then either to obtain that consent or

instead to seek a judicial bypass. Still, the Supreme Court has

upheld those laws, over vociferous dissents. See, e.g., Ohio v.

Akron Center for Reproductive Health, 497 U.S. 502, 532

(1990) (Blackmun, J., joined by Brennan and Marshall, JJ.,

dissenting) (“Ohio’s judicial-bypass procedure can consume

up to three weeks of a young woman’s pregnancy.”) (citation

omitted); Hodgson v. Minnesota, 497 U.S. 417, 465 (1990)

(Marshall, J., joined by Brennan and Blackmun, JJ., dissenting)

(“[T]he prospect of having to notify a parent causes many

young women to delay their abortions . . . .”); H.L. v. Matheson,

450 U.S. 398, 439 (1981) (Marshall, J., joined by Brennan and

Blackmun, JJ., dissenting) (“[T]he threat of parental notice

may cause some minor women to delay past the first trimester

of pregnancy . . . .”).

To be sure, this case presents a new situation not yet

directly confronted by the Supreme Court. But that happens all

the time. When it does, our job as lower court judges is to apply

the precedents and principles articulated in Supreme Court

decisions to the new situations. Here, as I see it and the panel

saw it, the situation of a pregnant unlawful immigrant minor in

a U.S. Government detention facility is a situation where the

Government may reasonably seek to expeditiously transfer the

minor to a sponsor before she has an abortion.

It is undoubtedly the case that many Americans –

including many Justices and judges – disagree with one or

another aspect of the Supreme Court’s abortion jurisprudence.

From one perspective, some disagree with cases that allow the

Government to refuse to fund abortions and that allow the

Government to impose regulations such as parental consent,

informed consent, and waiting periods. That was certainly the

position of Justices Brennan, Marshall, and Blackmun in many

cases. From the other perspective, some disagree with cases

9

holding that the U.S. Constitution provides a right to an

abortion.

As a lower court, our job is to follow the law as it is, not

as we might wish it to be. The three-judge panel here did that

to the best of its ability, holding true to the balance struck by

the Supreme Court. The en banc majority, by contrast, reflects

a philosophy that unlawful immigrant minors have a right to

immediate abortion on demand, not to be interfered with even

by Government efforts to help minors navigate what is

undeniably a difficult situation by expeditiously transferring

them to their sponsors. The majority’s decision is inconsistent

with the precedents and principles of the Supreme Court – for

example, the many cases upholding parental consent laws –

allowing the Government to impose reasonable regulations so

long as they do not unduly burden the right to abortion that the

Court has recognized.

This is a novel and highly fraught case. The case came to

us in an emergency posture. The panel reached a careful

decision in a day’s time that, in my view, was correct as a legal

matter and sound as a prudential matter. I regret the en banc

Court’s decision and many aspects of how the en banc Court

has handled this case.6

6

The Court never should have reheard this case en banc in the

first place. As the Supreme Court has instructed, “En banc courts are

the exception, not the rule. They are convened only when

extraordinary circumstances exist that call for authoritative

consideration and decision by those charged with the administration

and development of the law of the circuit.” United States v.

American-Foreign Steamship Corp., 363 U.S. 685, 689 (1960).

Federal Rule 35 provides that rehearing en banc is reserved for cases

that involve “a question of exceptional importance.” This Court’s

judges have adhered to that principle, even while entertaining doubts

about a panel’s application of the law to individual litigants. Here,

10

I respectfully dissent.

on the law, the three-judge panel’s order was unpublished; therefore,

it constituted no legal precedent for future cases. As to the facts of

this one case, if the panel’s order had blocked Jane Doe from

obtaining an abortion, the en banc consideration might be different.

If the panel’s order had forced Jane Doe to the cusp of Texas’s 20-

week abortion cutoff, the en banc consideration might be different.

If the panel’s order had significantly delayed Jane Doe’s decision,

the en banc consideration might be different.

But the panel’s order did none of those things. The panel was

faced with an emergency motion involving an under-developed

factual record that is still unclear and hotly contested. Indeed, the

parties have submitted new evidence by the hour over the past two

days – none of which was presented to the panel. The panel’s

unpublished order recognized Jane Doe’s interests without

prematurely requiring the Government to act against its interests.

The panel decision was prudent and reasonable, given all of the

circumstances. Indeed, as noted above, the Government represents

that, while difficult, it is possible for Jane Doe to obtain a sponsor by

“5:00 P.M. Eastern on October 31, 2017.” This case, as handled by

the three-judge panel, therefore was on a path to a prompt resolution

that would respect the interests of all parties – until the en banc Court

unwisely intervened. This case did not meet the standard for

rehearing en banc.