USCA Case #17-5236
Page 1 of 10
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2017
Filed On: October 20, 2017
Rochelle Garza, as guardian ad litem to
unaccompanied minor J.D., on behalf of
herself and others similarly situated,
Eric D. Hargan, Acting Secretary, Health and
Human Services, et al.,
It is ORDERED, on the courtas own motion, that the Clerk issue the attached
statement of Circuit Judge Millett, dissenting from the disposition of this case.
FOR THE COURT:
Mark J. Langer, Clerk
USCA Case #17-5236
Page 2 of 10
MILLET, Circuit Judge, dissenting from the disposition of the case.
There are no winners in cases like these. But there sure are losers. As of
today, J.D. has already been forced by the government to continue an unwanted
pregnancy for almost four weeks, and now, as a result of this order, must continue
to carry that pregnancy for multiple more weeks. Forcing her to continue an
unwanted pregnancy just in the hopes of finding a sponsor that has not been found
in the past six weeks sacrifices J.D.as constitutional liberty, autonomy, and personal
dignity for no justifiable governmental reason. The flat barrier that the government
has interposed to her knowing and informed decision to end the pregnancy defies
controlling Supreme Court precedent.
To escape terrible physical abuse in her family, a seventeen-year-old girl
known here as J.D. fled her home country and all she has ever known, and all alone
undertook a life-imperiling trek for hundreds, perhaps thousands, of miles seeking
safety. Unaccompanied minor migrants are among the most vulnerable persons in
the world. J.D.as journey exposed her to a tragically high risk of physical abuse,
rape, and sexual exploitation at the hands of other migrants, smugglers, and
governmental officials in every country whose territory she crossed. 1
After entering the United States, she was detained by federal immigration
officials and, at that time, learned that she is pregnant. Alone, resourceless, and
facing a perilous future, J.D. was appointed a guardian ad litem and, in compliance
with Texas law, obtained a state court order determining that she was (and is) mature
enough to decide for herself whether to continue the pregnancy. J.D. has also gone
through the mandatory counseling required by Texas law and has reconfirmed her
decision. Indeed, the United States does not dispute that J.D. is mature enough to
determine her own best interests, nor has it identified any reason that it is not in her
best interests to exercise the choice she made, other than a federal agencyas own
opposition to abortion. The federal government further represents that it would trust
her judgment, if only she had chosen to continue the pregnancy. But J.D. chose not
to continue her pregnancy.
The United States has for weeks now refused to release J.D. into the custody
of her guardian ad litem to obtain the abortion. It is undisputed that J.D.as guardian
and attorneysanot the federal governmentawill transport her and bear the costs of
See generally UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, WOMEN ON THE RUN (2015),
http://www.unhcr.org/5630f24c6.html; UNICEF, HUMAN TRAFFICKING FOR SEXUAL EXPLOITATION PURPOSES IN
GUATEMALA (2016), http://www.cicig.org/uploads/documents/2016/Trata_Ing_978_9929_40_829_6.pdf.
USCA Case #17-5236
Page 3 of 10
the abortion procedure. The logistics and paperwork of transferring her to the
custody of her guardian ad litem will all be handled by a government contractor that
is fully willing to do so. TRO Hrag Tr. at 4:3a5. It will not be done directly by any
federal governmental official. And J.D.as post-procedure medical care will be
administered by the contractor, not by government officials themselves. The
Department of Health and Human Servicesa only task is to refrain from barring its
contractor from allowing J.D. to receive the medical care.
The government does not disputeain fact, it has knowingly and deliberately
chosen not to challengeaJ.D.as constitutional right to an abortion. The government
instead says that it can have its contractor keep J.D. in what the government calls
aclosea custodyathat is, more restrictive conditions than the contractor imposes on
the non-pregnant minors in its careabecause of the agencyas own supervening
judgment that it would be in J.D.as best interests to carry the pregnancy to term. If
she wants an abortion, the government continues, she must surrender all legal claims
to remain in the United States and return to the country of her abuse.
That is wrong and that is unconstitutional.
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), which was reaffirmed just last year in Whole Womanas Health v. Hellerstedt,
136 S. Ct. 2292, 2309 (2016), should decide this case. In Casey, the Court held that
a awomanas right to terminate her pregnancy before viabilitya is aa rule of law and
a component of liberty we cannot renounce.a 505 U.S. at 871. a[I]t follows that it
is a constitutional liberty of the woman to have some freedom to terminate her
pregnancya at the pre-viability stage. Id. at 869. That liberty is necessary, the Court
added, to protect athe most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy,a and acentral to the
liberty protecteda by the Due Process Clause. Id. at 851. The Constitutionas
guarantee of due process thus protects that right for aany person,a U.S. CONST.
Amend. V, against undue governmental interference. While the government can
have its own interest in promoting the continuation of pregnancy and potential life,
prior to viability the government may not place a asubstantial obstaclea in the way
of a womanas right to decide for herself to discontinue a pregnancy. Whole Womanas
Health, 136 S. Ct. at 2309. Setting up substantial barriers to the womanas choice
violates the Constitution. That is settled, binding Supreme Court precedent.
What is forcing J.D. to carry on this pregnancy is not J.D.as choice. It is not
Texas law. It is the federal governmentas refusal to allow an abortion to go forward.
USCA Case #17-5236
Page 4 of 10
The governmentas refusal to release J.D. from custody is not just a substantial
obstacle; it is a full-on, unqualified denial of and flat prohibition on J.D.as right to
make her own reproductive choice.
What reason does the federal government offer for taking over J.D.as decision
completely and forcing her to continue an unwanted pregnancy that Texas law
permits her to terminate? None that remotely qualifies under the Constitution, or
that even makes sense.
First, the government says it does not want to afacilitatea the abortion. But
there is nothing for it to facilitate. As noted, J.D. will be transported to the medical
procedure by her guardian ad litem. Any expense will be fully born by her guardian
and attorneys. All paperwork and medical care will be done by a government
contractor. And, as government counsel conceded at oral argument, the court order
under review made it unnecessary for the Department of Health and Human Services
to decide for itself whether the procedure is in J.D.as best interests from a federal
For those reasons, the governmentas reliance on cases recognizing the
governmentas ability to prefer that pregnancies be taken to term, to provide
information about its views, and to require informed consent through processes that
do not unduly burden the womanas choice are of no help. See, e.g., Harris v. McRae,
448 U.S. 297 (1980). The government identifies no case that says the government
has a right to flatly prohibit an abortionato override the womanas choiceaby virtue
of keeping her in custody. And to be clear, it is a custody from which the government
would willingly release her to attend doctor appointments if she were to continue her
pregnancy. (No risk of flight or danger to the community has even been whispered
in this case.) So what the government really claims here is not a right to avoid
subsidizing the abortion decision; it claims a right to use immigration custody to
nullify J.D.as constitutional right to reproductive autonomy prior to viability.
Second, custody does not empower the government to completely override a
womanas informed and volitional decision to have an abortion. See Roe v. Crawford,
514 F.3d 789 (8th Cir. 2008) (striking as unconstitutional a prohibition on abortion
for prisoners with exceptions only for express approval and where necessary for the
health of the mother); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326
(3d Cir. 1987) (striking as unconstitutional a policy requiring prisoners to obtain a
court ordered release on their own recognizance in order to receive an abortion).
USCA Case #17-5236
Page 5 of 10
What is more, the governmentas insistence that it must not even stand back
and permit an abortion to go forward for someone in some form of custody is
freakishly erratic. The government admits that, if J.D. were an adult, she would be
held in the custody of Immigration and Customs Enforcement (ICE). That means
that the government permits women just a few months older than J.D. who are in
ICE custody to obtain an abortion.2 Likewise, it facilitates the process so that women
in the custody of the Bureau of Prisons can obtain abortions. 28 C.F.R. ASS 551.23.
So why is J.D.as case any different? The government says that, because she
is a minor, an official in the Department of Health and Human Services must
independently agree that an abortion is in J.D.as best interests. And this
Administration refuses to so agree. Without any explanation other than its
opposition to abortion. In so doing, the federal government distrusts the State of
Texas, which has conducted a hearing pursuant to state law and authorized J.D. to
make the decision herself and to decide whether continuing or terminating the
pregnancy is in her own best interest in this respect. J.D. may make that decision
without the consent of her aparent, managing conservator or guardian.a Texas
Family Code ASS 33.003(i-3). Notwithstanding the Statesa constitutional primacy in
matters of domestic relations, e.g., Mansell v. Mansell, 490 U.S. 581, 587 (1989),
the United States argues that a federal government official in Washington, D.C. is
better positioned and has more authority under the Constitution to prevent an
abortion than not only the State, but also the woman and any parent or husband or
father of the child. At least, until the woman turns 18. No judicial bypass exists for
that federal officialas decision. That is an astonishing power grab, and it flies in the
teeth of decades of Supreme Court precedent preserving and protecting the
fundamental right of a woman to make an informed choice whether to continue a
pregnancy at this early stage.
Third, the government says that J.D. is free to get an abortion as long as she
agrees to voluntarily depart the United States. But the government cannot condition
the exercise of a constitutional right by women and girls on their surrender of other
legal rights. The fact that J.D. entered the United States without proper
documentation does not mean that she has no legal right to stay here to be safe from
abuse or persecution. The Statue of Libertyas promise to those ahomelessa
ayearning to breathe freea is not a lie.
ICE Guidelines, Detention Standard 4.4, Medical Care, available at
USCA Case #17-5236
Page 6 of 10
Federal law, for example, expressly permits juvenile immigrants to seek
aspecial immigrant juvenile statusa by showing that they are (i) under 21 years of
age, (ii) unmarried, and (iii) dependent juveniles aas a result of abuse, abandonment,
or neglect.a Yeoboah v. United States Depat of Justice, 345 F.3d 216, 221-222 (3d
Cir. 2003); see 8 U.S.C. ASS 1101(a)(27)(J); 8 C.F.R. ASS 204.11.
Needless to say, conditioning a womanas exercise of her fundamental right to
reproductive choice, see Casey, supra, on the surrender of other legal rights is at the
least a substantial obstacle to the exercise of her constitutional right. And by the
way, this is a Hobsonas Choice that the federal government demands only of female
The majority here accepts none of those arguments by the government.
Instead, the court orders J.D. to continue her pregnancy for weeks. Not because she
has failed to follow required State processes. She has met every requirement. And
not because the majority agrees that the federal government can exercise an unbypassable veto over the reproductive decision of a minor in its custody. The only
reason given is an interest in further pursuing the availability of finding a sponsor
That too is forbidden by Supreme Court precedent. The desire to find a
sponsor for J.D. to release her from detention is understandable. Children are
presumably better off with family members or responsible adults than in the custody
of a government contractor. But finding a sponsor and allowing her to terminate the
pregnancy are not mutually exclusive. Both can proceed simultaneously. So the
desire to pursue that process has nothing to do with and is not a reason for forcing
J.D. to continue the pregnancy.
Perhaps the majority wants another adult to be involved in J.D.as
reproductive decision. But J.D. has already made that choice with a guardian ad
litem by her side, and after all the consent processes demanded by Texas law. To
force her to continue the pregnancy just in case someone else comes along with
whom J.D. might also consult is to impose layers and layers of consent-style barriers
to J.D.as choice, contrary to settled Supreme Court precedent. See Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976); Bellotti v.
Baird, 443 U.S. 622, 640a642 (1972) (striking statute requiring minor to obtain the
consent of both parents prior to an abortion as unduly burdensome). Even a parent
or husband does not have the power that federal government officials now claim to
wield. See id.
USCA Case #17-5236
Page 7 of 10
By the way, that distrust of whether J.D. has made an informed-enough-forthe-federal-government decision is a one-way street. It applies only to the decision
to end the pregnancy. Had she chosen to continue the pregnancy, that judgment
would have been fully respected and supported by the federal government without
any further proceedings. If J.D. is mature enough to decide to continue the
pregnancy, then she is mature enough to decide not to continue it as well (as Texas
Nor is there any factual basis to think that remand will accomplish anything
but a forced continuation of the pregnancy. After at least six weeks of trying, no
sponsor has been found. Two were identified, but neither passed muster under
Health and Human Servicesa review. (We are not told why, and counsel for the
government could not say whether the sponsorsa willingness to support J.D.as
abortion decision played a role in those decisions.) And even if a sponsor suddenly
appears, that sponsor cannot override J.D.as choice given that the judicial bypass
order makes the consent of a guardian or custodian unnecessary.
This sponsorship process, moreover, is entirely in the control of the
Department of Health and Human Services. J.D. cannot control the timing of the
decision, nor is there any apparent procedure for challenging a decision or a
delayed non-decision. Nor is there any reason to think that a sponsor can be found
in short order. If the federal government knew of a sponsor, it would have come
forward with that already. The government does not maintain an active list of
potential sponsors, and even if one were identified, there is an understandably
rigorous vetting process before a child will be handed into the custody of a third
party, which includes (i) interviewing prospective sponsors; (ii) sponsorsa
completion of extensive paperwork; (iii) a thorough background check, fingerprint
check, immigration Central Index System check; (iv) home visits where necessary;
and (v) conducting an assessment of the childas relationships to non-related
prospective sponsors. 3 The federal government could not tell the court how long
that process would take, even assuming a responsible sponsor would suddenly be
And in this context, timing profoundly matters. Every day that goes by is another
day that the federal government forces J.D. to carry an unwanted pregnancy forward.
Days also increase the health risks associated with an abortion procedure. See, e.g.,
Williams v. Zbaraz, 442 U.S. 1309, 1314a1315 (1979) (Stevens, J., sitting as Circuit
USCA Case #17-5236
Page 8 of 10
Justice) (evidence of an increased risk of amaternal morbidity and mortalitya
supports a claim of irreparable injury); Linda A. Bartlett, et al., Risk Factors for
Legal Induced AbortionaRelated Mortality in the United States, 103:4 OBSTETRICS
& GYNECOLOGY 729 (April 2004) (relative risk from abortion increases 38% each
gestational week). In addition, if J.D. is 17 or 18 weeks along by the time this issue
is resolved, the doctors at the South Texas clinic nearest to her (assuming it still has
availability) will likely no longer be willing to perform the procedure. That will
force J.D. to travel hundreds of miles to the next closest medical provider in North
Texas. She will be forced to endure this journey twice, once to repeat a counseling
session she has already received and again for the procedure itself.
The sponsorship remand, in short, stands as an immovable barrier to J.D.as
exercise of her constitutional right that inflicts irreparable injury without any
justification offered for why the government can force her to continue the pregnancy
until near the cusp of viability.
Lastly, the amici suggest that J.D. and all others in the United States without
documentation are not apersonsa entitled to the protections of the Due Process
Clause. The United States government, understandably, has deliberately and
knowingly decided not to raise that argument. It is both forfeited and waived. See
Wood v. Milyard, 132 S. Ct. 1826, 1832 n.4 (2012); Kontrick v. Ryan, 540 U.S. 443,
458 n.13 (2004).
Basic principles of constitutional avoidance and circuit precedent direct us not to
decide far-reaching constitutional questions that the parties have deliberately and
knowingly chosen not to raise. Indeed, we have held that a[t]he grounds for
recognizing the forfeiture of arguments are especially strong where the alleged error
is constitutional.a Board of County Commars v. Federal Housing Fin. Agency, 754
F.3d 1025, 1031 (D.C. Cir. 2014) (holding that the need for constitutional avoidance
is particularly acute where a partyas forfeiture makes deciding the constitutional
question neither anecessary nor even advisablea); see Camreta v. Greene, 563 U.S.
692, 705 (2011) (A alongstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.a) (internal quotation marks and citations omitted); Ashwander v. Tennessee
Valley Auth., 297 U.S. 288, 346a347 (1936) (Brandeis, J., concurring); Colm v.
Vance, 567 F.2d 1125, 1132 n.11 (D.C. Cir. 1977) (concluding that constitutional
aavoidance is especially preferred where the nature of the constitutional issue poses
a difficult decision with significant ramificationsa).
There are few constitutional questions more far-reaching than the proposition
that individuals in the United States without legal documentation do not even qualify
USCA Case #17-5236
Page 9 of 10
as apersonsa under the Constitution. The Supreme Court has long recognized that
immigrants who lack lawful status are protected persons under the Due Process
Clause. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (a[O]nce an alien
enters the country, the legal circumstance changes, for the Due Process Clause
applies to all apersonsa within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.a); Mathews v. Diaz, 426
U.S. 67, 77 (1976) (even aliens whose apresence in this country is unlawful,
involuntary, or transitory [are] entitled to th[e] constitutional protectiona of Fifth and
Fourteenth Amendment due process); Jean v. Nelson, 472 U.S. 846, 875 (1985)
(regardless of immigration status, aliens within the territorial jurisdiction of the
United States are apersonsa entitled to due process under the Constitution); cf. Plyler
v. Doe, 457 U.S. 202, 210 (1982) (children of persons here unlawfully are protected
apersonsa under the Equal Protection Clause of the Fourteenth Amendment).
The implications of amicias argument that J.D. is not a apersona in the eyes of
our Constitution is also deeply troubling. If true, then that would mean she and
everyone else here without lawful documentationaincluding everyone under
supervision pending immigration proceedings and all Dreamersahave no
constitutional right to bodily integrity in any form (absent criminal conviction).
They could be forced to have abortions. They could, if raped by government
officials who hold them in detention, then be forced to carry any pregnancies to term.
Even if pregnancy would kill the Mother, the Constitution would turn a blind eye.
Detainees would have no right to any medical treatment or protection from abuse by
other detainees. Those with diabetes or suffering heart attacks could be left to die
while their governmental custodian watches.
Fortunately, we need not confront that profoundly unsettling argument because
no party has raised or briefed it and, as noted, the government has expressly
disavowed advancing it. In an emergency proceeding of this nature, we should be
particularly hesitant to decide sweeping questions of constitutional law
unnecessarily and without any briefing.
J.D. came to the United States without legal documentation. That is not
disputed. But the government cannot make a forced pregnancy the sanction for that
action. J.D. retains her basic rights to personhood. After all, this child fled here all
alone in a desperate effort to avoid severe abuse. And, unfortunately, other women
and girls desperate to escape abuse, sexual trafficking, and forced prostitution
undoubtedly will also find themselves on our shores and pregnant. When they,
USCA Case #17-5236
Page 10 of 10
consistent with legal process, decide to continue their pregnancies, that decision
should be supported. When they decide that their dire circumstances leave them in
no position to carry a pregnancy to term, the Constitution forbids the government
from directly or effectively prohibiting their exercise of that right in the manner it
has done here.
I accordingly dissent.