Legal Sidebari

The Federal Government’s Plenary
Immigration Power Collides with the
Constitutional Right to an Abortion (Part I)
Updated November 27, 2017
This Sidebar is the first in a two-part series discussing Garza v. Hargan, a decision by the U.S. Court of
Appeals for the D.C. Circuit involving a detained unaccompanied alien minor and the right to terminate a
pregnancy. The second Sidebar is available here.
In Garza v. Hargan, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit), sitting en banc, upheld
a federal district court’s order requiring the Department of Health and Human Services (HHS) to allow a
detained 17-year-old unaccompanied alien minor to have an abortion. The alien minor (Jane Doe), who
had been apprehended by immigration authorities when attempting to enter the United States, sued the
federal government on the grounds that HHS’s decision to deny her access to an abortion while she
remained in agency custody interfered with her right to terminate her pregnancy. Jane Doe obtained an
abortion following the D.C. Circuit’s en banc decision. The Garza decision, however, may have broader
implications for other aliens in U.S. custody.
The court’s decision to afford Jane Doe access to an abortion turned upon the application of the Supreme
Court’s longstanding precedent that a woman has a constitutional due process right to terminate her
pregnancy. Nevertheless, the D.C. Circuit’s decision raises renewed questions over the extent to which the
government may impose abortion restrictions, particularly in light of HHS’s current policy to deny a
detained unaccompanied alien minor access to the procedure in the United States until she secures a
sponsor. In addition, the court’s decision arguably leaves unresolved a threshold question – does an alien
who is immediately apprehended at the border and remains in U.S. custody even have a constitutional
right to an abortion? This two-part Sidebar examines the Garza case and the broader implications that the
D.C. Circuit’s ruling has not only for abortion rights, but also with respect to the rights of unlawfully
present aliens in the United States.
Factual Background
Jane Doe, a 17-year-old reportedly from Central America, attempted to enter the United States without
inspection near Brownsville, Texas in September 2017. Immigration authorities of the Department of
Homeland Security (DHS) immediately apprehended Jane Doe upon her arrival. Pursuant to statutory
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requirements concerning an “unaccompanied alien child” who is detained by federal immigration
authorities, Jane Doe was transferred to HHS custody and placed in a federally funded shelter pending her
potential removal from the United States. While in custody, Jane Doe obtained a Texas court order
granting her permission for an abortion, and asked HHS to allow her access to the procedure. Following
HHS’s refusal, Jane Doe (through her guardian ad litem) filed a lawsuit in the D.C. federal district court.
On October 18, the district court granted Jane Doe’s application for a temporary restraining order (TRO),
and directed HHS to immediately transport Jane Doe (or allow her to be transported) to an abortion
provider. The government – which never disputed that Jane Doe had a constitutional right to an abortion –
appealed and filed an emergency motion to stay the TRO. In the motion, the government argued that HHS
could refuse to facilitate abortions while an unaccompanied alien child remained in federal custody, but
that this policy did not prevent a minor from leaving custody if she found a qualified sponsor in the
United States. Accordingly, the government argued, HHS’s refusal to facilitate an abortion did not
impermissibly burden Jane Doe’s ability to obtain an abortion.
On October 20, a divided three-judge panel of the D.C. Circuit (Judges Henderson, Kavanaugh, and
Millett) vacated the TRO in part, and agreed with the government that HHS’s policy was permissible “so
long as the process of securing a sponsor to whom the minor is released occurs expeditiously.” The court
thus ordered the district court to issue an 11-day deadline for HHS to secure a sponsor for Jane Doe. In a
dissenting statement, Judge Millett argued that the government’s refusal to release Jane Doe until she
secured a sponsor – a process “entirely in the control” of HHS – placed an “immovable barrier” to her
constitutional right to an abortion.
On October 24, the D.C. Circuit granted Jane Doe’s petition for rehearing en banc and vacated the panel
decision “substantially for the reasons set forth” in Judge Millett’s dissent. The court remanded to the
district court to amend the effective dates for compliance with the TRO. In a concurring opinion, Judge
Millett reiterated her view that the government’s refusal to allow Jane Doe access to an abortion while she
remained in custody violated her constitutional rights. In a dissenting opinion, however, Judge Henderson
argued that Jane Doe did not have a constitutional right to an abortion because, as an alien immediately
apprehended and detained at the border, she never “entered” the United States as a matter of law, and had
not developed “substantial connections” with this country.
Does HHS’s Policy Unduly Burden the Right to an
Abortion?
The continued validity of HHS’s policy involving sponsorship for an unaccompanied alien minor seeking
an abortion may be questioned in light of the D.C. Circuit’s October 24 order. In a statement concurring
with the en banc court’s disposition of the case, Judge Millett concluded that HHS’s policy and any delay
associated with finding a sponsor impose an “undue burden” on a woman’s ability to terminate her
pregnancy. Judge Millett based this conclusion on the standard established by the Supreme Court in
Planned Parenthood of Southeastern Pennsylvania v. Casey. There, the Supreme Court indicated that an
undue burden exists if the purpose or effect of an abortion regulation is “to place a substantial obstacle in
the path of a woman seeking an abortion before the fetus attains viability.”
Applying the undue burden standard in Casey and subsequent cases, the Supreme Court has invalidated a
variety of abortion regulations, such as those requiring a woman to notify her spouse before an abortion,
and others mandating abortion facilities to satisfy the same standards as ambulatory surgical centers. On
other occasions, however, the Court has upheld abortion regulations, including those that require a minor
to notify a parent before the procedure will be performed, and others that require a woman’s informed
consent before an abortion.

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In Garza, Judge Millet maintained in an opinion concurring with the en banc court’s disposition of the
case that “the government’s position that [Jane Doe] cannot exercise her constitutional right unless the
government approves a sponsor imposes a flat prohibition on her reproductive freedom that [Jane Doe]
has no independent ability to overcome.” At the time of the en banc decision, the search for a sponsor had
continued unsuccessfully for seven weeks. Under the panel’s October 20 decision, the search would have
continued for another 11 days, or nearly nine weeks since a search for a sponsor was initiated. Judge
Millett contended that this waiting period constituted a “prolonged and complete barrier” to Jane Doe’s
right to have the procedure. Moreover, Judge Millett argued that further delay would increase health risks
for Jane Doe and make it more difficult for her to obtain an abortion. Under Texas law, for example, an
abortion is generally prohibited once a fetus has reached a postfertilization age of 20 weeks.
In a dissenting opinion, Judge Kavanaugh criticized what he believed was the en banc majority’s
recognition of a “new right for unlawful immigrant minors in U.S. Government detention to obtain
immediate abortion on demand[.]” According to Judge Kavanaugh, a process that provides for the
expeditious transfer of an alien minor to a sponsor before an abortion is performed does not impose an
undue burden on a woman’s right to terminate her pregnancy (though Judge Kavanaugh further clarified
that under Supreme Court precedent, the government cannot use the transfer process as “some kind of
ruse to unreasonably delay the abortion past the point where a safe abortion could occur”). Because Jane
Doe’s transfer was to occur within 11 days of the panel’s October 20 decision and the government agreed
that she could have an abortion immediately after the transfer, Judge Kavanaugh contended that the
sponsorship process was sufficiently expeditious. Judge Kavanaugh also noted that the Supreme Court
has routinely upheld a variety of abortion regulations, like mandatory waiting periods “that entail some
delay[.]” Given the Supreme Court’s treatment of these requirements, Judge Kavanaugh concluded that
requiring the expeditious transfer of an alien minor to a sponsor before she has an abortion similarly does
not impose an undue burden.
The dispute between Judges Millett and Kavanaugh concerning the permissible length of a waiting period
would not seem to raise a novel question. Twenty-seven states prescribe a mandatory waiting period
before an abortion may be performed, but none would potentially delay the procedure for nine weeks. For
its part, the Supreme Court in Casey upheld a 24-hour waiting period. However, in its most recent
abortion decision, Whole Woman’s Health v. Hellerstedt, the Court observed that the undue burden
standard requires a reviewing court to consider the burdens a law imposes on abortion access together
with the benefits conferred by the law. Neither Judge Millett nor Judge Kavanaugh evaluated the benefits
and burdens imposed by the sponsorship process on unaccompanied alien minors seeking an abortion.
Arguably, Whole Woman’s Health advises that such an analysis should be conducted if the sponsorship
process is challenged again in the future.
Nevertheless, earlier this month, Acting HHS Secretary Hargan filed a petition with the Supreme Court
that seeks a vacating of the D.C. Circuit’s en banc decision. The government is pursuing such action, in
part, because “the en banc court’s decision should not be left on the books for use by . . . other plaintiffs.”
Jane Doe brought her claim as a putative class action on behalf of herself and other pregnant
unaccompanied alien minors in HHS’s custody, and the government is concerned that the decision could
be applied to these possible claims if it is not vacated. In his dissenting opinion, Judge Kavanaugh argued
that the precedential value of the majority’s decision for future abortion cases involving persons in U.S.
custody was unclear and that, in any event, the decision conflicted with Supreme Court precedent
upholding “a wide variety of abortion regulations that entail some delay in the abortion but that serve
permissible Government purposes.” The Supreme Court has not indicated whether it will review Garza.
Whether, as a threshold matter, the right to terminate a pregnancy should be recognized for an
unaccompanied alien minor who is immediately apprehended at the border is explored in part II of this
Sidebar.

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Author Information

Hillel R. Smith
Jon O. Shimabukuro
Legislative Attorney
Legislative Attorney





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