United States District Court, District of Columbia
ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff,
ERIC D. HARGAN, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Rochelle Garza, on behalf of a putative class of
unaccompanied, undocumented minors, has sued Eric Hargan,
Acting Secretary of the Department of Health and Human
Services, Stephen Wagner, Acting Assistant Secretary of the
Administration for Children and Families, and E. Scott Lloyd,
Director of the Office of Refugee Resettlement, alleging that
Defendants have violated the minors' constitutional
rights by preventing them from terminating their pregnancies
or otherwise availing themselves of the full panoply of
legally available reproductive healthcare services while in
federal custody. Pending before the court are Plaintiffs'
Motion for Class Certification (ECF No. 18) and Motion for a
Preliminary Injunction (ECF No. 5). Having reviewed the
parties' filings (including the briefs of amici
curiae), the record, and the relevant case law, the
court hereby GRANTS Plaintiffs' Motion for Class
Certification. The relevant class is defined as all pregnant,
unaccompanied immigrant minor children (UCs) who are or will
be in the legal custody of the federal government. For the
reasons set forth below, the court further GRANTS
Plaintiffs' Motion for a Preliminary Injunction.
Office of Refugee Resettlement (ORR), which is headed by its
Director, E. Scott Lloyd, is responsible for
“coordinating and implementing the care and placement
of unaccompanied alien children who are in Federal custody by
reason of their immigration status.” 6 U.S.C. §
279(b)(1)(A). As part of that responsibility, ORR is charged
with “making placement determinations” for UCs,
“implementing the placement determinations, ”
“implementing policies with respect to the care and
placement” of UCs, and housing them. Id.
§ 279(b)(1)(C)-(L). In executing these duties, ORR is
charged with “ensuring that the interests of the child
are considered in decisions and actions relating to the care
and custody of an unaccompanied minor child.”
Id. § 279(b)(1)(B). ORR places UCs with federal
grantee organizations that provide shelter and services in
compliance with ORR policies and procedures. (ECF No. 10-1
March 2017, ORR instructed employees at federally funded
shelters that they “are prohibited from taking any
action that facilitates an abortion without direction and
approval from the Director of ORR, ” (ECF No. 5-4), are
required to “notify ORR through [assigned federal
staff] immediately of any request or interest on any
girl's part in terminating her pregnancy, ” (ECF
No. 5-5 at 5), and are not permitted to “support
abortion services pre or post-release; only pregnancy
services and life-affirming options counseling.” (ECF
No. 5-6 at 2). The Director's approval must be in the
form of written authorization, and is required “whether
the procedure will be paid for with Federal funds or by other
means.” (ECF No. 5-5 at 3). “Facilitation”
includes all actions relating to scheduling appointments,
arranging transportation, pursuing a judicial bypass,
“or any other facilitative step” in relation to
an abortion procedure. (ECF No. 5- 5 at 5). The record
indicates that a UC seeking an abortion must also obtain an
ultrasound and options counseling from a provider on a
pre-approved list, and “obtain parental consent, which
will necessitate options counseling with [her parents], plus
signed, notarized declaration of consent.” (ECF No.
5-10 at 3; see also ECF No. 5-9 at 2).
Proposed Class and Class Representatives
seek to form a class that would include all pregnant UCs who
are or will be in federal custody and, accordingly, are or
will be subject to ORR's policies or practices. Named
Plaintiffs include four female UCs-Jane Doe (J.D.), Jane Roe
(J.R.), Jane Poe (J.P.), and Jane Moe (J.M.)-each of whom has
at some point been both pregnant and in ORR custody since
Plaintiffs filed the case in October 2017.
the original named plaintiff in this case, is a UC who
entered the United States in September 2017, when she was 17
years old. She was apprehended at the U.S. border and
remanded to ORR custody at a shelter in Texas. (Findings of
Fact in Supp. of Am. TRO ¶¶1-2, ECF No. 30). After
a medical examination confirmed that she was pregnant, J.D.
sought to terminate her pregnancy, and with the assistance of
a guardian ad litem and an attorney ad
litem, sought and received a judicial bypass of
Texas's parental notification and consent requirements.
(ECF No. 30 ¶¶3-4). J.D. obtained private funding
for the procedure, and her guardian and/or attorney ad
litem agreed to transport her to have the procedure.
(ECF No. 30 ¶10). Nevertheless, when J.D. attempted to
complete the final stages of Texas's procedure for
obtaining an abortion, Defendants refused to transport her to
the facility and refused to allow anyone else to transport
her, claiming that transporting J.D. or allowing her
transportation would constitute “facilitation.”
(ECF No. 30 ¶6). Defendants maintained that under ORR
policy, J.D. could obtain an abortion by leaving ORR's
custody in one of two ways: (1) if a third party were to
indicate a willingness to serve as a sponsor for J.D.,
qualify for that position under applicable legal
requirements, complete the administrative review process, and
obtain ORR approval; or (2) if J.D. were to voluntarily
self-deport to her home country, where Defendants conceded
that abortion is illegal. (ECF No. 30 ¶8).
also employed other means to dissuade J.D. from having an
abortion, such as requiring her to undergo counseling from a
religiously-affiliated crisis pregnancy center (some version
of which appears to be mandatory for all pregnant minors
seeking termination while in ORR custody), and requiring
her to view a sonogram. (ECF No. 30 ¶7). ORR also
notified J.D.'s mother of her decision, despite the fact
that J.D. had informed ORR that her parents were abusive, and
that she fears returning to her home country for that reason.
(Decl. of Marie Christine Cortez ¶¶8, 11, ECF No.
court granted J.D.'s request for injunctive relief on
October 18, 2017. Defendants immediately sought an emergency
stay pending appeal, which a divided panel of the D.C.
Circuit granted in part on October 20, over the dissenting
statement of Circuit Judge Millett. On October 24, however,
the D.C. Circuit, sitting en banc, permitted the
injunction to go into effect, “substantially for the
reasons set forth in the October 20, 2017 dissenting
statement of Circuit Judge Millett.” Garza v.
Hargan, 874 F.3d 735, 736 (D.C. Cir. 2017) (mem). J.D.
was able to terminate her pregnancy, and was released to a
sponsor on January 15, 2018. (Decl. of Jonathan White
¶4, ECF No. 115-1).
a 17-year old UC who was detained at the U.S. border and
remanded to ORR custody at a shelter in an undisclosed
location. In or around the week of December 11, 2017,
J.P.'s physician informed her that her pregnancy had
entered the second trimester. After discussing her options
with her physician, J.P. decided to terminate the pregnancy.
(TRO ¶7, ECF No. 73). J.P. was prevented from doing so
by the ORR policy, and Government counsel subsequently
produced, at the court's request, a document
memorializing that decision. (ORR Decision Doc., ECF No.
92-1). The document indicates that J.P.'s pregnancy was a
result of rape in her home country, prior to her journey to
the United States. (ECF No. 92-1 at 1-2). J.P. also reported
that although she faced substantial family pressure to
continue with the pregnancy, she had made three requests to
have an abortion. (ECF No. 92-1 at 2). The document also
reveals the basis of ORR's decision to forbid J.P. from
obtaining an abortion-namely, Director Lloyd's belief
that abortion constitutes “violence that has the
ultimate destruction of another human being as its goal,
” that “abortion does not here cure the reality
that she is the victim of an assault, ” that
“[t]o decline to assist in an abortion here is to
decline to participate in violence against an innocent
life.” (ECF No. 92-1 at 7-8). Lloyd also stated:
At bottom, this is a question of what is in the interest of
the young woman and her child. How could abortion be in their
best interest where other options are available, and where
the child might even survive outside the womb at this stage
of the pregnancy? Here there is no medical reason for
abortion, it will not undo or erase the memory of the
violence committed against her, and it may further traumatize
her. I conclude that it is not in her interest.
No. 92-1 at 8). The Decision Document concluded:
Refuge is the basis of our name and is at the core of what we
provide, and we provide this to all the minors in our care,
including their unborn children, every day. In this request,
we are being asked to participate in killing a human being in
our care. I cannot direct the program to proceed in this
manner. We cannot be a place of refuge while we are at the
same time a place of violence. We have to choose, and we
ought to choose to protect life rather than to destroy it.
(ECF No. 92-1 at 8).
court granted J.P.'s request for injunctive relief on
December 18, 2017. (ECF No. 73). ORR elected not to appeal
this court's order, and allowed J.P. to obtain an
abortion procedure. (See Appellants' Emergency
Mot. for Stay Pending Appeal at 1 n.1, ECF No. 79-1). As far
as the court is aware, J.P. remains in ORR custody.
a 17-year old UC who was detained at the U.S. border and
remanded to ORR custody at a shelter in an undisclosed
location. (ECF No. 73 ¶¶1-2). She learned of her
pregnancy after a medical examination on November 21, 2017.
(ECF No. 73 ¶3). Her physician explained her options to
her, and she elected to terminate the pregnancy. (ECF No. 73
¶3). ORR, citing its policy, refused to allow J.R. to
terminate her pregnancy, despite the fact that-as with all
the named Plaintiffs-the procedure would have been paid for
with private funds. (ECF No. 73 ¶14). This court granted
J.R.'s request for injunctive relief on December 18,
2017, and ORR appealed that decision to the D.C. Circuit.
(See ECF No. 73; Defs. Notice of Appeal, ECF No.
74). Defendants subsequently moved for dismissal of that
appeal in light of new information indicating that J.R. was
not in fact a minor. (See Resp. to Ct. Order at 2,
ECF No. 84). J.R. was later transferred to the custody of the
Department of Homeland Security, where, as ORR acknowledges,
regulations permit her obtain an abortion. (See ECF
No. 84 at 2).
a 17-year old UC who was detained after entering the United
States and remanded to ORR custody at a shelter in an
undisclosed location. (Decl. of J.M. ¶¶1-4, ECF No.
105-2). J.M. requested an abortion, but was not permitted to
obtain one, pursuant to the ORR policy. (Decl. of J.M.
¶5). She filed a motion seeking a temporary restraining
order in this court on January 11, 2018. (Appl. for TRO, ECF
No. 105). Defendants responded on January 12, 2018,
reasserting the positions they maintained with respect to
J.D., J.P., and J.R., and noting that ORR had identified a
sponsor for J.M. (Defs. Opp. to Pls. Mot. TRO at 1, ECF No.
108; Decl. of Jonathan White ¶4, ECF No. 113-1). On
January 13, ORR informed the court that it had received all
necessary documents and had begun the process of releasing
J.M. into the sponsor's custody, (ECF No. 113-1
¶¶4-5), and on January 14, ORR informed the court
of J.M.'s release. (Defs. Notice of Completion of the
Transfer of Ms. Jane Moe, ECF No. 114).
Class-Wide Preliminary Injunction
argue that Defendants' policies amount to a series of
obstacles and restrictions designed to “coerce and
control all UCs' pregnancy decisions to ensure that they
carry their pregnancies to term while in ORR custody, ”
such that pregnant UCs are: (1) “deprived of
comprehensive and unbiased options counseling” in favor
of “coercive counseling” designed more to
influence their decision-making than to “meet their
medical needs”; (2) “denied the power to decide
for themselves whether to involve their parents in their
pregnancy decision-making” by a system of disclosure
and parental consent requirements that cannot be bypassed;
and (3) “stripped of their right to make autonomous
decisions about whether and when to become a parent” by
ORR's retention of an ultimate veto power over abortion
access, which is exercised as a de facto ban on
abortion. (Pls. Reply to Opp. to Mot. for Class Certification
at 3, 6, ECF No. 56; Mot. for Prelim. Inj. at 4, ECF No.
5-1). Plaintiffs allege that these ...