In case you missed it, let’s briefly cast our memories back to last October, when the Trump administration literally tried to hold an undocumented immigrant prisoner in order to prevent her from having an abortion. The legal process surrounding the case was referred to by the American Civil Liberties Union attorney who served on the woman’s behalf as a “pattern of unconstitutional overreach of power,” which was finally resolved by a lower court.
But in a brief order handed down Monday, the Supreme Court has vacated that lower court order that thwarted the Trump administration’s effort. Though the woman at issue in Azar v. Garza has already obtained an abortion and is unlikely to be impacted by Monday’s order, the Supreme Court’s decision in Garza wipes away a precedent that could have been used to prevent future attempts to imprison abortion patients until they are no longer able to legally terminate their pregnancies.
The lower court order concerned an undocumented, 17-year-old woman, identified by the pseudonym “Jane Doe,” who entered the United States unaccompanied by an adult. Under federal law, such unaccompanied minors are held in a facility run by the Department of Health and Human Services until a relative in the United States steps forward as the minor’s “sponsor,” the minor agrees to voluntarily depart the country, or the minor is deported.
Though the record in this case is limited and unclear, Doe may have been sexually abused in her home country, and her now-terminated pregnancy may have been the result of rape. The Trump administration refused to let her obtain an abortion while she was detained by the government, though a lower federal court eventually ordered the administration to permit her to have that abortion.
The specific issue before the Supreme Court in Garza involved a misunderstanding between the government and Doe’s attorneys. A federal district judge ordered the government to permit Doe to have an abortion on October 24. Doe was transported to the abortion clinic the next morning.
The Trump administration believed that this October 25 appointment would only involve pre-abortion counseling, and not the abortion itself, so it planned to wait to seek an emergency order blocking the abortion until October 26. As it turned out, however, a doctor who previously counseled Doe was available during the October 25 appointment, so Doe received her abortion before the Trump administration could seek relief from the Supreme Court.
The upshot of Garza is that “when ‘a civil case from a court in the federal system . . . has become moot while on its way here,’ this Court’s ‘established practice’ is ‘to reverse or vacate the judgment below and remand with a direction to dismiss.'” In other words, because Doe’s abortion eliminated the controversy between Doe and the government — the Trump administration could no longer hold abortion patients prisoner to keep them from having an abortion if they are no longer pregnant — the case must be tossed out, along with the lower court decisions favoring people like Doe.
As a practical matter, this is not a sweeping victory for the Trump administration. A larger class action suit, which concerns a number of abortion patients similarly situated to Doe, will still move forward, and the lower courts may very well conclude that the government may not hold these patients prisoner to prevent them from obtaining abortions.
But the earlier decisions preventing the Trump administration from treating abortion patients this way are wiped out and can no longer be cited as binding precedents. Worse, for patients like Doe, the Supreme Court’s willingness to get involved in Garza suggests that a majority of the Court may be inclined to back the Trump administration.
It is worth noting that the Trump administration also sought sanctions against Doe’s attorneys, claiming that they made “‘material misrepresentations and omissions’ that were ‘designed to thwart this Court’s review.’” The Supreme Court largely punted on this allegation, noting that “not all communication breakdowns constitute misconduct.”
So, while Garza is not good news for abortion patients like Doe, the Court avoided many of the more pointed questions that it could have decided on Monday. The question of whether they can be detained until they are forced to carry their pregnancy to term will remain open.
UPDATE: It’s worth noting that, on March 30, 2018, a federal trial judge issued a new injunction forbidding the government from obstructing “all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government” from obtaining an abortion. This new injunction was not at issue in the Supreme Court’s Garza opinion, and should remain in effect — though it is currently on appeal before the United States Court of Appeals for the District of Columbia Circuit.
Nevertheless, Monday’s Supreme Court opinion vacates a previous DC Circuit decision siding with Doe. That opens up new arguments for the Trump administration in its current appeal, and potentially signals that a majority of the Supreme Court will side with the administration when this case reaches the Court again.