Bar Exams in the Pandemic JURIST Digital Scholars
Federal court blocks HHS policy on pregnant minors, grants class status
Federal court blocks HHS policy on pregnant minors, grants class status

The DC District Court [official website] on Friday blocked [order, PDF] policies implemented by the Department of Health and Human Services (HHS) [official website] limiting the ability of undocumented, minor immigrants in HHS custody to access abortion services.

The preliminary injunction prevents HHS’ Office of Refugee Resettlement (ORR) [official website] from “interfering with or obstructing any class member’s access to … a judicial bypass, … medical appointments related to pregnancy dating, … abortion counseling, … an abortion, or … other pregnancy-related care.” ORR is also prohibited from forcing a pregnant minor to “reveal the fact of their pregnancies and their abortion decisions to anyone,” revealing those decisions itself, retaliating against any pregnant minor based on those decisions, and retaliating against contractors who operate immigrant shelters who may facilitate a pregnant minor’s decision.

Explaining her decision [opinion, PDF] to enjoin implementation of the ORR policy, Judge Tanya Sue Chutkan noted that many of the issues had been litigated in earlier cases [JURIST report] involving some of the plaintiffs, saying that “there is essentially no substantive difference between the class issues currently before this court and the issues underpinning the prior requests for temporary relief on which this court—and in one case, the D.C. Circuit—have already ruled.” Chutkan said that “[w]hile ORR and its Director are certainly entitled to maintain an interest in fetal life, and even to prefer that pregnant UCs in ORR custody choose one course over the other, ORR may not create or implement any policy that strips [undocumented minor immigrants] of their right to make their own reproductive choices.”

Acknowledging that four plaintiffs who are or have been pregnant in ORR custody had already joined the case challenging the policy — Jane Doe, Jane Roe, Jane Poe and Jane Moe — Chutkan granted plaintiffs’ motion for class certification, allowing this suit to serve as a means of adjudicating the rights of ” all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government.”