By order filed on Tuesday, Oct. 24, 2017, in Garza v. Hargan, the Court of Appeals for the District of Columbia Circuit, en banc, a 17-year-old undocumented woman in federal custody was permitted to have an abortion which the federal government had contested. The pregnancy had been discovered when she was given a physical examination upon apprehension for illegally entering the country in Texas. The abortion procedure occurred just one day after the order was entered, at a time the appellant, known as Jane Doe or J.D., was 16 weeks pregnant. Texas law requires voluntary abortions to be conducted within 20 weeks.
While we take no position on the merits of the order, we point to the decision as another example of how courts of this country can, and sometimes do, handle matters very expeditiously, when necessary or appropriate to do so, and perform that function in a learned, studied and reasoned manner. The order was entered by a vote of 6 to 3. One of the dissenting opinions laments that the case may have been handled too quickly (the District Court had given appellant until the end of the month to find an immigration sponsor to represent J.D.’s interest in arranging the abortion), and both dissents contend that governing legal principles were not developed or were ignored by the government and the majority. But those issues were addressed at least by the dissenters and answered in the concurring opinion.
It is comforting to see once again that when there is a case or controversy, the judiciary can gear up to take action to advance and preserve “checks and balances” despite the view of some recent critics that the judiciary is too slow to take action to prevent executive or legislative mistakes or wrongdoing. Here, whether you like the result or not, and irrespective of whether one believes proceeding a bit more slowly was necessary for proper consideration of all the relevant issues, the courts handled the matter within a month, and J.D. received an elective abortion within the required 20-week period under Texas law.