U.S. Justice Department headquarters in Washington, D.C. Credit: ALM

A U.S. Justice Department lawyer, arguing Wednesday for the Trump administration, rejected claims that the government has imposed any “undue burden” on the ability of pregnant, undocumented minors from having access to abortions while in government custody.

In the case Azar v. Garza, U.S. Justice Department attorney August Flentje urged a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to reverse a district court’s nationwide injunction against the Office of Refugee Resettlement—a component of the Health and Human Services Department—as well as the trial court’s certification of a class action.

“The burden is created by the minor crossing illegally—not by the government,” Flentje told the panel. “When the person is able to choose to go back to her country of nationality, there is no undue burden imposed by the government.”

Judges Sri Srinivasan and Robert Wilkins, sitting with Laurence Silberman, heard arguments for more than two hours, exceeding the allotted time for the hearing. The case was a centerpiece at the U.S. Supreme Court confirmation hearing of Brett Kavanaugh, who earlier served on a panel hearing the dispute. An earlier ruling from Kavanaugh against a pregnant immigrant teenager became a flashpoint for his views on the lawfulness of abortion.

Brigitte Amiri, senior attorney with the American Civil Liberties Union, counsel to the class, countered there was no abuse of discretion by the district court’s issuance of the injunction and approval of class certification.

“The government has operated a policy of banning abortion for all unaccompanied immigrant minors while in custody,” she told the appeals panel. “It is rare to see such a stark prohibition on abortion. This is a blanket ban on abortion for anyone while in custody, which is blatantly unconstitutional under Roe [v. Wade] and it progeny.”

U.S. District Judge Tanya Chutkan of the District of Columbia, in issuing the injunction and class certification, found that the Office of Refugee Resettlement, or ORR, had a policy of prohibiting federally funded shelters “from taking any action that facilitates an abortion without direction and approval from the director of ORR.” The court also concluded the policy required minors seeking abortions to obtain counseling from a crisis pregnancy center on a pre-approved list, “plus signed, notarized declaration of consent” from the minor’s parents.

Tanya S. Chutkan, during her confirmation hearing before the Senate Judiciary Committee, to be U.S. district judge for the District of Columbia, on Feb. 25, 2014. Photo: Diego M. Radzinschi/ALM

“ORR effectively retains an absolute veto over the reproductive decision of any young woman in its custody,” Chutkan in her March 30 order. That veto was the “quintessential undue burden” prohibited by the U.S. Supreme Court’s abortion precedents, she concluded.

Flentje argued that Chutkan’s order was overbroad and eliminates any role for Office of Refugee Resettlement, which is charged by Congress to find sponsors for the minors and to determine what is in their best interests.

But the panel appeared to be troubled by the government’s argument that there was no impediment or restriction imposed by the government because the minor always had voluntary departure as an option.

“Here you’re talking about exercise of a right against the government,” Srinivasan said. “It’s a right to terminate a pregnancy without a substantial obstacle put in the way by the U.S. government. You seem to be saying that’s alright because she can leave the country. If she leaves the country, what happens? The right is gone. I don’t understand the argument that says an unaccompanied minor has the right to terminate a pregnancy and the answer to the right is you can leave and go somewhere where that right is not in existence.”

Flentje insisted several times that the government had not set any undue burden on the immigrant teenagers. The government, he said, has restrictions on what happens to a person after they cross into the country illegally. The United States, Flentje said, has no obligation to facilitate an abortion.

Amiri faced skeptical questions by the panel about the trial court’s certification of the class action.

“I have some serious problems identifying a policy you are challenging in this lawsuit that inflicts an injury upon a minor who neither expresses an interest in or a desire to terminate her pregnancy,” Wilkins said. “Help me here or otherwise there is commonality problem and the class is too broad.”

Silberman also voiced concerns, saying, “I don’t understand how a class can include people who don’t have an injury.”

Amiri said the class must protect the ability of all pregnant minors to make their own decisions free from government obstruction. All of those minors, she added, are injured by restrictions on their access to neutral information about pregnancy and forced parental notification of their pregnancies.

The case could reach the Supreme Court in its next phase, and Kavanaugh, should he be confirmed to the high court, would be recused. It’s possible the case could first return to the trial court, depending on how the D.C. Circuit rules. Any reconfiguration of the plaintiffs could eliminate any recusal issues.

“If there were a new case, it wouldn’t raise a potential recusal issue for a new Supreme Court justice,” Silberman said at one point.


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