A decision based on a “radical” “new right for unlawful immigrant minors” “to obtain immediate abortion on demand” or one that honored the exercise of “an unquestioned constitutional right to choose a pre-viability abortion.” Such were the diametrically opposed viewpoints of the dissent and the majority in Garza v. Hargan, No. 17-5236 (D.C. Cir. Oct 24, 2017).
You may recall media coverage of the case. Garza was the guardian ad litem for an unnamed 17-year-old girl who walked across the Mexican border, alone, to escape abuse at home. Upon arrival the federal government took the girl into custody and placed her in a shelter under the jurisdiction of the Department of Health and Human Services. She then learned she was pregnant. She decided to terminate the pregnancy.
Under Texas law a minor must obtain the consent of her parents to an abortion or obtain a court order, a “judicial bypass.” She took the latter route with the assistance of a local legal group.
A Texas judge found her mature enough to make the decision. She underwent pre-abortion counseling as mandated by Texas law. The group collected money to pay for a private abortion. Garza agreed to transport her to a provider.
Enter DHHS. It has a policy, adopted this year, of prohibiting all minors detained by it from obtaining an abortion. It believes it has the power under federal law to determine what is in the best interests of its detainees, state court determinations notwithstanding. So it would not release the girl.
Garza sued, with the assistance of the ACLU. On Oct. 18 a federal district judge directed DHHS to honor the girl’s decision. DHHS appealed and on Oct. 20 prevailed partially before a three-judge panel.
Proceedings would be stayed for 11 days until Oct. 31 to enable DHHS to find a “sponsor” to whom it could release the girl. In its decision the panel did not say what would happen if the government did not find a sponsor. Would DHHS have to immediately release the girl to Garza, or would the district court have to hear more motions in the case, further delaying the abortion?
On appeal, DHHS changed its position slightly. It would release the girl without a sponsor if she surrendered all legal rights to stay in the United States and agreed to return home, regardless of the conditions there. This she refused to do.
The girl was now 15 weeks pregnant. Texas law prohibits abortions after 20 weeks.
Garza asked the full court to review the decision of the panel. It agreed and reversed the decision.
The majority and the dissent started from the same point. Government may not put “a substantial obstacle” in the way of a woman’s exercise of her right to an abortion pre-viability, absent a medical benefit sufficient to justify the burden. Planned Parenthood of Southeastern Penns v. Casey, 505 U.S. 833 (1992); Whole Women’s Health v. Hellerstedt, 579 U.S. ___ (2016). They differed in the application of the law to the facts.
The majority pointed out DHHS had already spent seven weeks seeking a sponsor for the girl without success. It controls the sponsorship process, not the person needing a sponsor. A candidate must be thoroughly vetted. In the additional time, now seven days, DHHS was not likely to produce a sponsor.
Furthermore, a sponsor cannot control the girl’s decision to terminate the pregnancy. Finding a sponsor and allowing the girl to exercise her right to an abortion could proceed simultaneously.
To the minority the processes were separate. Finding a sponsor would put the girl “in a better place when deciding whether to have an abortion.” In particular she lacked any “support network of friends and family” here.
The majority responded the sufficiency of a woman’s support network is not constitutionally relevant. The girl has made her decision and it has been authorized by a Texas court.
If the girl was an adult, she would be in the custody of ICE. If she was a convicted criminal, she would be in the custody of the Bureau of Prisons. Both government units permit women to terminate pregnancies. The policy of DHHS was “an acutely selective form of resistance” to abortions.
Unchallenged was Garza’s proof that postponing the termination magnified the risks to the girl’s health. Also, she was nearing the point where she would have to travel hundreds of miles to find a provider.
All of these facts led the majority to restore the district court injunction against DHHS.
DHHS did not question the right of the girl to an abortion, given her status as an undocumented alien who recently arrived in the country. The dissent hinted it might have backed the government if it had done so. Such a holding would have been truly radical.
Instead, the dissent argued the transfer of a pregnant girl to a sponsor was not a burden so long as the transfer was “expeditious” and seven days could be so. The majority’s decision denied DHHS this opportunity. Then the dissent reached.
The denial equates “to immediately allow(ing) abortion upon the request of an unlawful immigrant minor in (the government’s) custody,” (emphasis in original). To which the majority responded, if “on demand” means “the demands of the Constitution and Texas law,” “I would agree.”
The full court handed down its decision on Oct. 24. The next day, the girl terminated her pregnancy.
The unnamed girl prevailed at great effort. Unfortunately, there will be more fights with the government. The current administration wants to restrict the reproductive rights of women of all ages and in all contexts.
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or [email protected].