D.C. Circuit Judge Judith Rogers. Credit: Diego M. Radzinschi / NLJ

A federal appellate panel on Monday rejected an attempt by the Trump administration to block an injunction against the government’s policies restricting the ability of pregnant undocumented minors to obtain abortions.

The U.S. Court of Appeals for the D.C. Circuit unanimously denied the U.S. Justice Department’s request to stay the entire injunction pending the government’s appeal in the case Garza v. Azar. The Justice Department is challenging the injunction and a trial judge’s certification of a nationwide class of pregnant minors in the custody of the U.S. Office of Refugee Resettlement (ORR).

The panel’s ruling came on the same day the U.S. Supreme Court, in a related case that was the forerunner to the class action, vacated a decision that had allowed a pregnant immigrant teen in U.S. custody to go forward with her abortion. The justices also declined the Justice Department’s suggestion to impose sanctions on the immigrant teenager’s lawyers at the American Civil Liberties Union for allegedly misleading the government about the timing of the girl’s abortion.

After the Supreme Court ruling, Justice Department lawyers told the D.C. Circuit that the justices’ order supports the government argument that the trial judge was wrong to certify a class and to enjoin Office of Refugee Resettlement practices with respect to access to abortions.

Brigitte Amiri of the ACLU, representing the class of immigrant minors, said the Supreme Court’s action “was not at all relevant. It will have no effect on the class action.”

D.C. Circuit Judge Judith Rogers wrote Monday:

“The class action complaint seeks to prevent defendants, in light of ‘recently revised nationwide policies,’ from wielding an ‘unconstitutional veto power’ over access to such abortion in violation of the Fifth Amendment, by forcing those who, like J.D., request a pre-viability abortion, to visit pre-approved anti-abortion crisis pregnancy centers, which require them, in violation of the First and Fifth Amendments, to ‘divulge the most intimate details’ of their lives, and by notifying, without consent, parents or other family members of their request for an abortion.”

Rogers continued: “In this manner, pregnant unaccompanied immigrant minors who seek pre-viability abortions can avoid both the unconstitutional burden under defendants’ practices and the necessity of repeated individual emergency proceedings in the district court and on appeal. The injunction of defendants’ practices relieves class members of these burdens and restores their rights to privacy and to choose whether to seek a pre-viability abortion.Avoiding time-consuming litigation of individual cases may alleviate some of the emotional trauma inflicted upon a group of especially vulnerable young women.”

The three-judge panel did put on hold one part of the injunction that had restricted disclosure of immigrant teenagers’ “abortion decisions.” The D.C. Circuit ruling allows such disclosure when a minor becomes incapacitated or gives consent.

The appeals panel divided 2-1 on an aspect of the temporary bar against the Office of Refugee Resettlement “interfering with or obstructing any class member’s access to an abortion.” Two of the panel judges—Rogers and Sri Srinivasan—said the access bar applies only to pre-viability abortions. But Judge Thomas Griffith, writing separately, argued the access bar applied to all abortions and that the “overbroad” injunction violated Supreme Court abortion precedents.

Griffith wrote: “While I am not opposed to interpreting an injunction in light of its context, the majority’s saving construction here is unpersuasive. For that reason, I would treat the abortion-access provision just as we did the non-disclosure provision, staying it to the extent it exceeds the right established by the Supreme Court.” Griffith said Rogers and Srinivasan were refusing “to acknowledge the government’s interest in ‘fetal life.’”

Rogers countered Griffith, writing: “Regrettably, my colleague has joined defendants’ non-contextual misconception of the injunction to conclude that an opinion on post-viability abortions is required. This conclusion too is unfounded. The designated class representatives’ own circumstances involve access to pre-viability abortions.”

The panel issued a briefing order beginning July 2 and ending August 9, with oral arguments in September.


Read more:

Justices Shut Down DOJ’s Drive to Punish ACLU Lawyers in Abortion Case

ACLU Spurns U.S. Solicitor’s Call for Attorney Sanctions in Abortion Case

DC Circuit’s Millett, Who Backed Teen’s Abortion Right, Finds Role Model in RBG

En Banc DC Circuit Allows Undocumented Minor to Get Abortion