A federal judge ordered the government to assist illegal alien minors in obtaining abortions on Friday, delivering a win to the American Civil Liberties Union in its ongoing litigation against the Office of Refugee Resettlement.
The court issued a preliminary injunction in Garza v. Hargan, even though the four plaintiffs represented by the ACLU had all procured abortions months ago, and even though the ACLU has not identified any girls in the custody of the ORR currently seeking abortions.
The ACLU finessed this victory by convincing district court judge Tanya Chutkan to certify the case as a class action and to appoint the ACLU to represent “all pregnant, unaccompanied immigrant minor children who are or will be in the legal custody of the federal government,” whether the girls seek an abortion or not.
The government may appeal Chutkan’s decision. Following Friday’s release of the district court opinion, a spokesperson for the Department of Health and Human Services noted that they are working with the Justice Department to “review the court’s order and determine next steps.”
HHS “strongly maintains that taxpayers are not responsible for facilitating the abortion of unaccompanied minors who entered the country illegally and are currently in the government’s care,” the spokesperson added.
Should the Justice Department appeal Chutkan’s decision, the case would return to the D.C. Court of Appeals for the second time: In October of 2017, the D.C. Circuit ruled in a 6-3 split decision that the ORR’s refusal to facilitate an abortion for J.D. — the first unaccompanied minor to file suit — violated her constitutional right to an abortion.
In that case, the Justice Department immediately informed the ACLU of its intent to appeal the ruling to the United States Supreme Court. However, after agreeing to keep the government apprised of the timing of the procedure, the ACLU whisked J.D. away a day early, and at 4:30 a.m., to obtain an abortion, preventing the Justice Department from challenging the D.C. Court of Appeals’ decision. Justices are currently deciding whether to vacate the appellate court’s decision because of the ACLU’s duplicity. They have already discussed the case at nine separate court conferences, but without resolution.
Whether the Supreme Court vacates — or lets stand — the D.C. Circuit’s original decision, though, the DOJ should immediately appeal Judge Chutkan’s more recent opinion to the federal appellate court because her ruling certifying a class action in Garza was fundamentally flawed. And the D.C. Circuit’s earlier holding does not control the question of the propriety of class certification.
A federal class action lawsuit is appropriate only if four requirements are met:
- Numerosity: The class must be “so numerous that joinder of all members is impractical.”
- Commonality: Questions of law or fact are common to the class.
- Typicality: The claims or defenses of the named plaintiffs are typical of the class
- Adequacy: The named plaintiffs will fairly and adequately protect the interests of the class.
Chutkan, a Barack Obama appointee, concluded that the ACLU had established the above four factors and certified a class action. However, in finding the class “numerous,” Chutkan wrongly focused on the number of pregnant minors in the ORR custody — 726 in 2014, 450 in 2015, and 682 in 2016 — and not the number of pregnant minors seeking an abortion. To date, the ACLU has only identified four such minors, and one of those the ORR released from custody after learning she was over 18.
The district court ignore the small number of plaintiffs affected by the ORR’s policies by accepting the ACLU’s framing of the issue as whether the “ORR’s policies and/or practices deprive pregnant [unaccompanied minors] the ability to make their own choices regarding whether to seek an abortion or disclose pregnancy-related information.” Chutkan reasoned, “If true, this deprivation would constitute an injury to all class members, regardless of which option an individual class member might ultimately choose.”
But the policies the ACLU challenges do not affect all pregnant minors — they only affect pregnant minors considering an abortion. Specifically, the ACLU challenges the ORR’s mandate that federally funded shelters do not take “any action that facilitates an abortion without direction and approval from the Director of ORR,” and its directive that shelters “notify ORR through [assigned federal staff] immediately of any request or interest on any girl’s part in terminating her pregnancy.” The ACLU also objects to the ORR’s requirement that shelters provide “only pregnancy services and life-affirming options counseling,” and requires girls seeking an abortion to inform their parents of their pregnancies.
The ACLU’s “choice” rhetoric falters because these policies do not impact girls who have already chosen life for their unborn babies. In fact, it is the ACLU who is interfering with those girls’ choice by foisting their legal representation on pregnant minors who have no interest in obtaining an abortion or in the ACLU’s abortion advocacy.
Because the policies challenged in the ACLU’s complaint affect only girls contemplating an abortion, any class should have been defined as “pregnant unaccompanied minors considering an abortion.” But such a class would not satisfy the “numerosity” requirement because the ACLU has presented evidence of only a handful of such girls. Those girls may sue individually, as J.D. and the other three girls added to the Garza lawsuit have done, but they cannot properly maintain a class action lawsuit.
