[Updated To Draw Organization Human Relationship For Developments Through Tuesday Morning, 12/19] Hhs's Shocking Novel Justification For Preventing 17-Year-Old Girls Inward Its Custody From Obtaining Abortions: It Knows To A Greater Extent Than Than They Produce Close Whether The Abortions Would Hold Upward Inward Their Best Interests

[UPDATE equally of early on Tuesday morning, 12/19:  The developments are coming fast as well as furious as well as are a flake confusing--bear alongside me here.  (If y'all haven't yet done so, y'all should likely read the principal post, below, for context.):

1. On Mon evening, Judge Chutkan issued the TRO, which applies to both girls.  It requires the accused ORR officials to "allow J.R. as well as J.P. to move transported--promptly and without delay, . . . to an abortion provider, inwards social club to obtain any pregnancy or abortion-related medical tending as well as to obtain the abortion physical care for itself, in accordance alongside the abortion providers’ availability as well as whatsoever medical requirements," as well as restrains those defendants "from interfering alongside or obstructing J.R.’s as well as J.P.’s access to abortion counseling or an abortion."  Judge Chutkan stayed the social club for 24 hours--until 6:05 p.m. today, Tuesday the 19th--to allow the regime to seek emergency relief inwards the D.C. Circuit.  The regime so noticed an appeal.  

2. The regime moved for stays of the TRO only as applied to Jane Roe in both the court of appeals and the Supreme Court.  The government, however, represented that it volition not seek a rest equally to Jane Poe (the pocket-sized who is 22 weeks pregnant).

3.  The D.C. Court of Appeals (Judges Rogers, Tatel as well as Millett) promptly granted a 24-hour rest of the TRO, until 6:05 p.m. on Wednesday, Dec 20, 2017, to give the courtroom sufficient chance to consider the government's emergency motion, but only "to the extent that the social club requires appellants to carry Jane Roe or allow Jane Roe to be transported to obtain an abortion procedure."  

At 10:09 this morning, Judge Chutkan lifted the rest equally applied to Jane Poe (who is 22 weeks pregnant).  Presumably, then, Jane Poe volition obtain her abortion today (Tuesday), as well as the illustration at nowadays is confined, on appeal, to Jane Roe, who is precisely about 10 weeks pregnant.  

4.  The D.C. Circuit motions panel farther ordered the appellee (i.e., Roe's lawyers) to file a response to the government's emergency displace for rest past times 10:00 a.m. this morning, alongside the government's response brief due at 3:00 p.m.  The plaintiffs filed their brief moments ago.  

The panel farther directed the parties to address: (1) whether Jane Roe’s independent asking for as well as conclusion to undergo an abortion fully complies alongside the relevant terra firma police pull governing abortions past times minors [I believe the response to this is "yes"]; (2) whether the Office of Refugee Resettlement (ORR) has yet made an individualized decision regarding its thought concerning why resultant of the pregnancy would not, inwards its judgment, be inwards Jane Roe’s best interests [based upon yesterday's oral argument, I believe the response to this is "no"--and Roe's counsel agrees]; and (3) if no such individualized conclusion has been made, for ORR to seat "on what ground ORR has concluded that an abortion would non move inwards Jane Roe’s best interests."  As for this finally item, my agreement is that although ORR had concluded that an abortion would non move inwards Jane Poe's best interests (a determination that volition plainly move rendered moot if Poe obtains an abortion after today), ORR has not made a similar determination alongside honor to Jane Roe.  It is, instead, trying to foreclose Jane Roe from having an abortion even if it is inwards her best interests, at to the lowest degree until such fourth dimension equally she is transferred to the custody of a "sponsor"--allegedly so equally to foreclose the ORR from beingness compelled to "affirmatively facilitate" the abortion (but run across my give-and-take below, questioning the "facilitation" rationale).  We shall run across shortly whether that agreement is correct.

5.  In the meantime, dorsum inwards the Jane Poe case, yesterday afternoon the regime filed, nether seal, the ORR Director's "Decision . . . for Jane Poe," which is, presumably, ORR's explanation for why, inwards its view, an abortion is non inwards Poe's interests, thereby overriding her conclusion to the contrary.  (See my give-and-take below.)  The ACLU lawyers representing Roe as well as Poe so filed, alongside Judge Chutkan, a displace for a public filing of a redacted version of that ORR Decision (and an attached note).  Although Poe's ain illustration mightiness move moot equally presently equally she obtains her abortion (presumably today), the lawyers stand upwards for that the ORR Decision, as well as the attached note, "provide highly relevant data most Defendants’ challenged policy that ought promptly to move made public, equally good equally of import additional facts most Plaintiff Roe’s situation"--information that the plaintiffs hoped to refer to today inwards their responses to the government’s emergency motions for stays pending appeal.  Judge Chutkan presumably volition dominion on that displace early on this morning, at which fourth dimension nosotros mightiness larn relevant novel data that bears on Roe's illustration going forward.  In the meantime, inwards their filing this morning, Roe's counsel write:

A document filed past times Defendants nether seal with the district courtroom yesterday regarding the reasons for denying some other Plaintiff, Jane Poe’s, asking for an abortion makes abundantly clear that Defendants’ refusal to allow immature women to access abortions has nix to do alongside their best interests and everything to do alongside Defendant ORR Director Scott Lloyd’s personal opposition to abortion.

END UPDATE (for now)]

Last calendar month I published a post hither most the Solicitor General’s nominal “Petition for Certiorari” inwards No. 17-654, Hargan v. Garza, the illustration involving HHS’s efforts to deny a 17-year-old fille inwards its custody, “Jane Doe,” the right to obtain an abortion to which she was entitled nether the Constitution as well as Texas law.

Now, inwards that same litigation, the Department of Health as well as Human Services is i time once to a greater extent than trying to foreclose 2 other unaccompanied, immigrant 17-year-old girls inwards its custody from obtaining abortions.  HHS’s Office of Refugee Resettlement (ORR), which has statutory responsibleness for such unaccompanied minors, has instructed the private shelters housing the girls (both of which are contract agents of ORR) non to permit the girls to obtain the abortions they are seeking—i.e., to forcibly confine them from leaving the shelters for the procedures. 

I precisely returned from a hearing before Judge Chutkan on a displace past times “Jane Roe” as well as “Jane Poe” for a temporary restraining social club that would enjoin HHS from requiring the shelters to stand upwards inwards the way of their abortions.  What makes these 2nd as well as tertiary cases so remarkable is that they starkly demonstrate the most striking thing most the government's argument:  the fact that HHS simply has no legal, cognizable involvement in preventing the abortions.  For that ground alone, Judge Chutkan should grant the TRO.  [UPDATE Mon evening:  Judge Chutkan has issued the TRO, which, inter alia, requires the accused ORR officials to "allow J.R. as well as J.P. to move transported—promptly and without delay, . . . to an abortion provider, inwards social club to obtain any pregnancy or abortion-related medical tending as well as to obtain the abortion physical care for itself, in accordance alongside the abortion providers’ availability as well as whatsoever medical requirements," as well as restrains those defendants "from interfering alongside or obstructing J.R.’s as well as J.P.’s access to abortion counseling or an abortion."  Judge Chutkan stayed the social club for 24 hours to allow the regime to seek emergency relief inwards the D.C. Circuit.  The regime has noticed an appeal.  The regime has also moved for stays of the TRO as applied to Jane Roe inwards both the court of appeals as well as the Supreme Court.  It appears, however, that the regime volition non seek a rest equally to Jane Poe (the pocket-sized who is 22 weeks pregnant), who thence volition move able to obtain an abortion tomorrow evening, unless something to a greater extent than happens.]

Jane Roe learned that she is pregnant most 4 weeks ago.  She is at nowadays x weeks pregnant.  Jane Poe, past times contrast, is 22 weeks pregnant—something she late learned.  (She had previously been told that she was non nearly equally far along inwards the pregnancy.)  Unlike Jane Doe, the plaintiff inwards the before proceeding who was inwards custody inwards Texas, neither Roe nor Poe is beingness held inwards a terra firma that requires whatsoever parental consent or judicial bypass before a pocket-sized may do her right to an abortion:  That is to say, equally far equally state law is concerned, in that location is no obstruction to either immature adult woman exercising her constitutional right to an abortion, equally long equally the wellness tending professional person inwards enquiry determines that she is capable of providing informed consent to the procedure.  Poe, however, is rapidly approaching the betoken inwards her pregnancy (fetal viability) where terra firma police pull mightiness permanently foreclose her from exercising her right.  And ORR is preventing both girls from exercising their rights now.

Why?  What reason does ORR give for standing inwards the way?  The principal terra firma involvement that it invokes, precisely equally it did inwards the Doe case, is that the Constitution does non require the regime to “facilitate” an abortion; that ORR does non want to facilitate abortions; as well as that the requested injunction would similar a shot ORR to “affirmatively facilitate” the abortions.  I’ve explained previously why there’s nix to this declaration that the injunction would forcefulness ORR to “affirmatively facilitate” whatsoever abortion—an explanation I’ll repeat below. 

Before I do so, however, it’s of import to stress that at the hearing this morning, ORR offered another, quite shocking rationale equally applied to the illustration of Jane Poe, who is 22 weeks pregnant:  ORR has determined, according to its DOJ lawyer, that it is not inwards Poe’s ain interest to own got the abortion, fifty-fifty though she has decided otherwise.  In back upwards of this argument, ORR cites half-dozen U.S.C. 279(b)(1)(B), which provides that the ORR Director is “responsible” for “ensuring that the interests of the child are considered in decisions as well as actions relating to the tending as well as custody of an unaccompanied alien child.”  ORR reads this legislative conferral of “responsibility” upon the Director to include the say-so to override the minor’s ain conclusion most whether an abortion is inwards her ain interest.  (The regime did non explicate at the hearing why or how the Director had made the conclusion that an abortion was non inwards Poe’s interest—and, inwards particular, whether that determination was based upon anything to a greater extent than than the Director’s ain belief that abortion is immoral.  Judge Chutkan directed counsel to file an explanation past times three p.m. today.)

Think most that declaration for a second.  And recollect that inwards the Jane Doe case, inwards the D.C. Court of Appeals, Judge Kavanaugh understood the regime to own got “expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks say-so to block Jane Doe from obtaining an abortion.”  We at nowadays know that that is non the government’s position, if it e'er was:  ORR at nowadays boldly claims that it has the say-so to block Jane Poe’s abortion—permanently—because its Director knows improve than she does what her best interests are.

  

I own got non had fourth dimension to do whatsoever enquiry on department 279(b)(1)(B), but—simply equally a affair of statutory interpretation—I would move shocked if Congress intended to confer such “override” say-so on the Director alongside honor to such a significant, constitutionally protected pick of the minor.

Not surprisingly, it appeared that Judge Chutkan was shocked, too, when DOJ tendered this declaration at the hearing.  After all, she noted, a terra firma could non constitutionally afford fifty-fifty the minor’s parent such an unqualified powerfulness to override a daughter’s determination of whether an abortion is inwards her best interests.  The notion, therefore, that Congress has—and constitutionally could—confer such say-so upon the ORR Director is, to say the least, very dubious.

As I noted above, ORR’s other stated interest—besides the audacious notion that it must move permitted to human activity inwards accord alongside its ain determination of what is inwards Jane Poe’s best interest—is inwards non beingness compelled to “affirmatively facilitate” abortions.  As Judge Millett wrote inwards the Doe case, however, this is “verbal alchemy.”  The TRO would non require the accused regime officials to “facilitate” an abortion or, for that matter, to do anything.  The injunction would move prohibitory.  As Judge Millett elaborated:

The regime postulate non pay for [the minor’s] abortion; she has that covered (with the assistance of her guardian advertizement litem).  The regime postulate non carry her at whatsoever phase of the process; [she] as well as her guardian advertizement litem own got arranged for that.  Government officials themselves do non fifty-fifty own got to do whatsoever paperwork or undertake whatsoever other administrative measures.  The contractor detaining [the minor] has advised that it is willing to grip whatsoever necessary logistics, precisely equally it would for medical appointments if [she] were to cash inwards one's chips along her pregnancy.  The regime also admitted at oral declaration that, inwards lite of the district court’s order, the Department of Health as well as Human Services does non fifty-fifty postulate to consummate its ain self-created internal “best interests” form.  See Oral Arg. 31:40-33:15.

In sum, then, the TRO would but forbid ORR officials from barring the contracting shelters from allowing Poe as well as Roe to have medical care.  Standing aside, as well as declining for a few hours to direct maintain a human inwards custody, is non a shape of "affirmative facilitation," if those words own got whatsoever meaning.

Indeed, if ORR’s simple failure to prohibit a minor’s agents from transporting her to the hospital genuinely entailed ORR's “facilitation" of the ensuing abortion, it would follow that the Department of Homeland Security as well as federal Bureau of Prisons regularly “facilitate” abortions when they carry their custodial detainees to clinics so that those women may obtain such procedures.  Surely that cannot move the thought of the United States--yet it is the logical implication of the government’s absurd “affirmative facilitation” argument. 

Moreover, ORR’s ain declaration inwards Roe’s illustration undermines its “facilitation” claim.  As inwards the Jane Doe case, ORR is willing to permit Roe to obtain an abortion so long equally ORR commencement transfers her to the custody of a “sponsor.”  If ORR’s failure to stand upwards inwards the way of the private efforts to own got Roe from the shelter to the hospital would upshot inwards ORR’s “affirmative facilitation” of Doe’s abortion, however, equally DOJ argues, so it stands to ground that ORR’s transfer of Roe to a sponsor’s custody—and its subsequent failure to do anything to foreclose that sponsor from taking Roe to the hospital for the abortion—would likewise upshot inwards ORR beingness responsible for “affirmatively facilitating” the abortion.  (Indeed, equally Judge Millett explained inwards the Doe case, transferring the pocket-sized to a sponsor would, if anything, require far more use of governmental resources than the unproblematic transfer of the pocket-sized the contractor shelter to the custody of private parties who would assist her inwards obtaining her abortion.)  The remedy ORR is seeking inwards Roe’s case, then, belies the “affirmative facilitation” claim upon which its declaration depends.

In sum, ORR simply has no expert reason—surely none that Congress has recognized or authorized the way to human activity upon—to cash inwards one's chips along to require the shelters to physically confine Roe as well as Poe from exercising their constitutional rights.  That, inwards as well as of itself, is plenty to resolve these cases.