//  11/16/17  //  Commentary

Marty Lederman has a much needed, and much warranted, post dressing down the Solicitor General’s “petition for certiorari” in Hargan v. Garza.  (The air quotes are because the SG does not really seek certiorari, or even argue that the order he seeks to have vacated involves any cert-worthy questions.)  Earlier this week, I wrote about how the SG’s filing should be understood alongside other action the administration has taken through DOJ. Now I want to highlight another issue raised by the Garza litigation that is part of another pattern — a wave of litigation concerning recent restrictions on abortion.

In facts that are now familiar to most observers, Hargan v. Garza involved the case of Jane Doe, an undocumented 17-year-old, who sought to obtain the abortion that a Texas state judge (and Texas state law) determined that Jane was allowed to decide to have.  As an undocumented minor, Jane was in the custody of a private shelter pursuant to an agreement with the shelter and the Department of Health and Human Services’ Office of Refugee Resettlement. 

The government refused to consent to Jane's release from the private shelter so that Jane could obtain the abortion. According to the government, that decision did not actually prohibit Jane from obtaining an abortion. Instead she apparently had two options—she could “leave the government’s custody” (1) by leaving the United States, or (2) by obtaining a sponsor.  The former option would relinquish both Jane’s claim to be in the United States as an asylum seeker and her ability to have an abortion. (Abortion isn’t legal in Jane’s country of birth absent medical necessity.)  And the latter option is something of a red herring—Jane had a guardian ad litem who was willing to escort her to the abortion and helped her pay for it, but laws and ORR regulations limited who could serve as Jane’s official “sponsor.”  And over the course of six or so weeks, ORR had been unable to find Jane an eligible sponsor (by regulation, a sponsor must have a preexisting social relationship with Jane before she arrived in the United States).

Both options posed additional risks to Jane’s health and safety.  The former option — voluntarily depart — involved Jane returning to the country and the extensive life-threatening abuse that caused Jane to flee in the first place.  It also involved her carrying an unwanted pregnancy to term.  The latter option — find a sponsor — involved Jane further postponing her abortion, which increases the risks of the procedure.  Indeed, Jane was far enough along in her pregnancy that postponing it much longer would have required her to travel out of state to obtain an abortion.  And if Jane was not able to find a sponsor, the “find-a-sponsor” option involved forcing her to bear a child against her will.

As Mike Dorf noted, the administration’s position “that a delay in obtaining an abortion raises no serious issues” was puzzling for a few reasons.  Postponing an abortion increases the risk of the procedure, and while the risks of the procedure remain low, “one would think the government would want some good reason to impose that added risk on a minor who, by its own account, is going to have an abortion anyway.”  Moreover, postponing an abortion means that the procedure will occur further along in the pregnancy, and pro-life legislatures and executives have resoundingly “signaled that later abortions are worse than earlier abortions.”

Mike’s analysis illustrates how the government’s analysis is flawed in its apparent factual premise—a delay in abortion does raise serious issues, contrary to the government’s view.  The government’s analysis is also flawed on the law.  In 2016, the Supreme Court decided Whole Woman’s Health v. Hellerstedt, which reaffirmed that women have a constitutionally protected liberty interest to decide to end a pregnancy.  Hellerstedt also reaffirmed that restrictions on abortions are invalid if they place an “undue burden” on a woman’s decision to end her pregnancy.  And it reaffirmed how the “undue burden” standard works: The undue burden standard requires an assessment of “the burdens a law imposes on abortion access together with the benefits,” and an assessment of whether an abortion restriction actually furthers a valid purpose.

Any serious effort to apply the undue burden standard—the governing, controlling law on whether a restriction on abortion is constitutional—thus requires some attempt to balance a restriction’s effect on women’s health against the benefits the restriction offers. 

Yet there was precious little in the government’s appeal/stay motion to the D.C. Circuit or its response to the en banc petition about the effects that requiring Jane Doe to voluntarily depart the United States or continue her weeks-long futile search for a sponsor would have on Jane Doe’s health.  There government included parentheticals to case citations that recite anti-abortion shibboleths such as that abortions create “psychological trauma” and “regret.”

The government also acknowledged statistics that “second trimester abortions have major complications in less than 0.5% of cases.”  (Jane offered these statistics in her court papers, and Hellerstedt had cited them.)  But the fact that second-trimester abortions are safe medical procedures doesn’t answer whether a governmental policy that increases health risks to women is justified in terms of the policy’s benefits and burdens.  Hellerstedt made perfectly clear that the undue burden standard requires an analysis of “the burdens a law imposes,” not merely a recital of the fact that abortions are safe procedures.  And Hellerstedt rejected the Fifth Circuit Court of Appeals’ apparent analysis (which the federal government in Garza now seems to embrace) that “court[s] should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.”

(Hilariously, the only mention of Hellerstedt anywhere in DOJ’s papers to the D.C. Circuit is for the proposition that second-trimester abortions are safe.)

Unfortunately, the government’s error was repeated by some of the judges on the D.C. Circuit.  Judge Henderson didn’t have to engage with the undue burden standard because she took the position that Jane Doe has no constitutional rights under the Due Process Clause because Jane is undocumented.  (The government lawyer in the district court made some evasive answers that gestured in that direction, but the government did not formally embrace that proposition.) 

But Judge Kavanaugh and Judge Griffith did, because they took the position that delaying Doe’s abortion was justified in order to allow the government to continue its thus far futile search to find Doe a sponsor.  Finding Doe a sponsor, according to Judge Kavanaugh and Judge Griffith, would put Jane Doe “in a better place” to have her abortion. 

I’m not exactly sure how Judge Kavanaugh and Judge Griffith determined that Jane would be in a “better place” if she were in a sponsor’s custody (rather than the custody of her guardian ad litem, with the permission of the private shelter that contracted with ORR). I’m not sure how they measured the benefit to Jane of being in that better place, or the benefit to Jane of having an abortion while she is technically in the custody of an ORR sponsor versus having an abortion while she is technically in the custody of a shelter that contracts with ORR and her court-appointed guardian ad litem. 

I’m not sure how they weighed those benefits against the increased health risks to Jane of delaying her abortion (by weeks, since their disposition of the case would require Jane to restart the litigation all over again).  I’m not sure how they weighed the purported benefits to the government of knowing that Jane was in the custody of a sponsor rather than a contracting shelter against the additional burden on Jane’s liberty of having to be pregnant against her will for additional weeks and days.   I’m not sure how they weighed the burdens on Jane’s health and liberty against the purported benefit to the government of knowing that Jane was formally in the custody of her sponsor (whom the government would have to find and vet through a process that some might call… facilitation) rather than in the custody of the shelter that contracts with ORR and Jane’s guardian ad litem.   

I’m not sure because the judges made no effort at all to grapple with these questions despite the undue burden standard (and Hellerstedt) nominally requiring them to do so.

Hargan v. Garza is just the canary in the coal mine for what has been happening to abortion access and reproductive justice more broadly in the wake of Hellerstedt, as Linda Greenhouse noted in her recent column.  States are—occasionally with the approval of courts—seeking to cabin Hellerstedt in a variety of ways and excuse themselves from having to prove that restrictions on abortions result in more benefits than burdens on women’s health and dignity. 

In a recent piece published with Michigan Law Review Online, I wrote about how states are seeking to limit Hellerstedt, which invalidated a pair of Texas restrictions on abortions, in a variety of unpersuasive ways: 

  • They argue that Hellerstedt applies only where a state maintains that it enacted a restriction to protect women’s health and safety.  (That would make little sense; could Texas have avoided the result in Hellerstedt by announcing that it enacted the same restrictions for another reason, such as “to protect potential life”?) 
  • They argue that they should be able to relitigate Hellerstedt’s findings and enforce restrictions that are materially indistinguishable to the ones that Hellerstedt invalidated (requirements that doctors who perform abortions have admitting privileges at hospitals within 30-some miles of where the doctor performs abortions, and requirements that abortion providers comply with the requirements applicable to ambulatory surgical centers). 
  • They also argue that courts must make a bunch of silly, unnecessary findings of fact before invalidating abortion restrictions.  My personal favorite is a recent Eighth Circuit decision that required the district court to “explain” what it meant by “women in the Fayetteville area.”  Hellerstedt invalidated the pair of Texas restrictions by relying on a district court’s findings that the only abortion providers that would remain in Texas would be providers that serve the “Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region[s].”  No court ever “explain[ed]” what it meant by the “Houston, Austin, San Antonio” or “Dallas/Fort Worth metropolitan region[s].”

The government’s conduct in Hargan v. Garza was all kinds of wrong—among other things, it required real chutzpah to file a cert petition without identifying why cert was warranted, on top of asserting (with little explanation) that holding someone in custody should be seen merely as failing to affirmatively facilitate their right to an abortion rather than obstructing it.  But the government’s stunningly empty, yet nearly successful, attack on one woman’s access to abortion was very real, and it is occurring elsewhere in cases that have not yet received a similar amount of sustained attention.

@LeahLitman


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