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Stand, please.

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OEA, OEA, OEA, all persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit, I remind you to draw near and give their attention, for the Court is now sitting.

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God save the United States and its Honorable Court.

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Be seated, please.

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Case number 18-1593, Rochelle Garza as guardian ad litem to unaccompanied minor JD on behalf of herself and others similarly situated at L, versus Alex Michael Azar, second, Secretary of Health and Human Services at L, appellants.

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Mr. Plenty for the appellants, Ms.

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Amari for the accolades.

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May it please the court.

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I'm August Flingy with the Justice Department here representing the United States.

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I'd like to reserve five minutes for rebuttal.

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The district court in this case has required a government agency and government officials that are charged by Congress with providing temporary care of unaccompanied minors to act inconsistent with their profound respect for life and facilitate what they regard as the termination of life through abortion.

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without any option to consider the child's interests or maturity or to explore alternatives like a prompt release to a parent or a sponsor.

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This is an unprecedented expansion of abortion jurisprudence.

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Before addressing that, as well as mootness and problems with the class certification, I'd like to first focus on three ways

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Even if this court finds there was jurisdiction and simply applies the law governing state prohibitions on abortion, guided by this court's en banc decision that's now been vacated, the district court order is still vastly overbroad and cannot be affirmed.

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First, the order entirely eliminates ORR's congressionally mandated role in making care determinations for minors who are temporarily within their custody.

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And it precludes them from evaluating a child's maturity or best interests in making those determinations as Congress demanded in 6 USC section 279.

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That can't be correct, and it's not required by the due process clause.

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Instead, the Supreme Court has recognized that it is well established that there's either a parental or, if the parent is not available, a governmental role in care decisions relating to children, even when the issue is abortion.

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And the court in Baladi made clear that those evaluations must be made on a case-by-case basis.

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ORR does not violate the due process clause when it plays a similar role here, as Congress told it to.

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And any evaluation of ORR's assessment must be made on a case-by-case basis, addressing the maturity and the best interests of each child and making class-wide treatment inappropriate in this case.

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But I wasn't under the impression that you were challenging the notion that as a general matter, ORR retains the authority across the board to

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engage in what you term non-facilitation, which is to say for an unaccompanied minor who's in ORR custody and wishes to terminate her pregnancy, that ORR retains unilateral authority to say no, you won't be released from ORR custody in order to give effect to your desire.

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I'm not sure I fully understand.

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What is it about case-by-case determination that affects ORR's decisions in this regard?

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The district court's order applies to every minor.

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It does not allow ORR to make any sort of assessment of the circumstances of the minor and simply requires that ORR allow the child to leave its legal custody to obtain the abortion.

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The district court's order

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precludes ORR from making an assessment or a decision with respect to a minor and its care on the sort of factors that the Supreme Court has said are important, are substantial interests of the state when dealing with minors seeking medical care, including abortion.

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But wasn't the district court just reacting to what it understood to be the way in which ORR was carrying out its authority?

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Which is to say, ORR was saying that if there's an unaccompanied minor in our custody,

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who wishes to exercise a right to terminate her pregnancy, we are not going to enable her to give effect to that choice.

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Well, the ORR policy is actually that the ORR director make case-by-case determinations.

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That is the only policy that plaintiffs have identified.

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Now, they've said, look, we have several examples where the ORR director said no.

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And, you know, they have one from December where the ORR director said no in very difficult circumstances.

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So they're saying... Did you proffer any examples where the ORR director said yes?

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No, we have not.

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But what I'm trying to say is, you know, I don't know that it's worth fighting over whether what the ORR director's policy is, even if the ORR director's policy is

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I'm never going to say, I'm never going to approve an abortion.

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The district court's order is still vastly over broad.

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The district court's order says, just because you can never say, even if it's wrong to always say no, that doesn't mean the ORR has to always say yes, which is what the district court's order essentially requires here.

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The district court's order does not allow any consideration of the factors that are critical to the care of children.

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in government custody or, you know, in the abortion context, it usually comes up with parental involvement.

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And that is one way that the District Court's order, even applying .

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.

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.

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I don't really understand the argument that you're making now, counsel, because are you saying that Congress gave ORR the authority to veto the child's choice in its parent's patrii role and that that is consistent with the Constitution?

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Yes, I am saying that ORR, excuse me, Congress made ORR in charge of making determinations regarding medical care for kids in its custody, in its temporary custody.

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I want to stress this is temporary custody.

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The mission of ORR is to find a sponsor or a parent as quickly as possible.

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But during that temporary period, Congress in section 279B, 2B I believe, said ORR should look to the best interest of its child, of the child in making care determinations.

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And the Supreme Court

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in the context of abortion and in other medical areas has said the child needs some help.

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And either the parent can have a role or if the parent's not part of the decision making process, the government through sort of a court bypass procedure or some other procedure can have a role in helping

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to make the two critical decisions which are about the best interest of the child and the maturity of the child.

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What is the bypass procedure for a child in ORR custody if ORR makes its determination that the child should not terminate her pregnancy?

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I mean, in our view, that is the procedure.

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I mean, that is the exercise of the authority that Congress has said they should exercise and that the Supreme Court in abortion cases has said is appropriate for a governmental entity.

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It seems to me it would be one thing.

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Let's just assume that

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As a statutory matter, ORR has statutory authority to make determinations about abortions.

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Let's just assume that.

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Well, I'll stress they do not challenge a statutory basis for the decision.

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Okay, so let's just assume that that's the case.

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If that's the case and if ORR had an articulated policy whereby they have a case-specific determination that involves

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an assessment of whether a child is mature enough to, a minor is mature enough to make this determination, even giving the, even assuming that the minor has already satisfied whatever state criteria there may be.

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Let's just suppose that ORR has authority to impose some extra requirement.

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And ORR had done that, and they had a policy that said, this is the way we engage in this inquiry.

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This is a regulation that spells that out.

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Well, then I could understand why the district court would need to decide whether that policy was consistent with the Constitution.

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But there's just not such a thing.

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So what the district court did was it reacted to the situation that confronted it.

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which is the assertion of just an across the board veto authority.

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That's what the court had in front of it and reacted to that and imposed injunctive relief that was commensurate with what it understood to be the policy that ORR was defending.

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And that might be correct if the district court had said an across the board veto policy is unlawful.

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That's not what the district court said.

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The district court said, you can't have any policy.

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You can't interfere or take any part in this process.

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So now the child who's in their care has no parental or governmental entity looking at that issue.

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And if the district court had said, or this court could say, look, there is a problem with a

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an outright veto and I have arguments why that's not a problem and I want to get to that later but as we're talking about simply applying abortion prohibition jurisprudence and applying what the court was looking at in Garza, if this court thinks well there is actually some role for the governmental entity to make these determinations just like the Supreme Court has said is important in many... I don't understand what the court is supposed to do because

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I don't think it's a role of a court to try to invent policies that might survive constitutional scrutiny.

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Well, that's true.

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But if the district court had invalidated the ORR policy, this argument would not be available.

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The district court did more than that.

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It didn't invalidate the ORR policy.

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It told ORR it could have no role in making this determination.

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It said it could not interfere or take or do anything to prevent the abortion when the Supreme Court and it's well established that a governmental entity does have an important.

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So if we can screw the district court as having said what or can't do is obstruct.

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abortion in the way that it's now carrying it out, then problem solved, right?

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Because then if ORR wanted to adopt a policy along the lines that you're suggesting, well, then that would present an issue that a new challenge would bring before a court for resolution.

[00:11:14] Speaker 05:
I think that would fully address this aspect of our argument, yes.

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If the district court had struck down the policy and then said, go back to the drawing board, ORR,

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that would allow ORR to think about how to implement that aspect of the Supreme Court jurisprudence.

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Okay.

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Okay, so there's a second way I want to get to where the district court's order is just overbroad and cannot be sustained.

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The order precludes ORR from spending any amount of time to allow the minor to exit ORR's temporary custody and thereby avoid the need for government officials to be a part of the termination of the pregnancy.

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and exercise the profound interest in preserving life that the government has.

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ORR is a temporary custodian of these children, and they often find sponsors quickly.

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Plain of sight in their brief and talking about mootness, the fact that a child is on average in ORR custody for around 41 days.

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I think that 41-day period has gone up a little as an average, but

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That means that a lot of kids are not in custody for very long.

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Often custody periods can be quite short if there's a parent available.

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Their ORR is charged by Congress to find a sponsor quickly and to get the child to the sponsor.

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It's often the parent.

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Now, Ms.

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Doe, the case that came up here last time, presented a very difficult circumstance.

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The parent was not available.

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It was much harder to find a sponsor.

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The sponsorship process went on for weeks.

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That, I think, was very important to the en banc court in concluding that there just wasn't enough, too much time had already passed.

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But the district court's order does not allow ORR any time to try and find a sponsor and put the child, as Judge Millett said, in a better situation.

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I think Judge Millett and Judge Cavanaugh agree.

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On this question, you don't take issue with the notion that sponsorship at the end of the day is up to the government to approve or disapprove.

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Absolutely.

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I mean, they have to approve sponsors based on an evaluation.

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It's quick, and if it's apparent, it usually moves quite quickly.

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But yes, the government does ultimately sign off on the sponsor.

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That's a really important safety measure for children.

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Have you conceded that?

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you should be obliged to perfectly legitimate that you would be obliged to exercise reasonable time?

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Well, again, I'm presenting some arguments as to why the district court's order is overbroad, even applying some principles that we don't necessarily agree with at the end of the day.

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But under that... Assuming you have a right to seek a sponsor.

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Yes.

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And isn't it quite legitimate for the district court to or this court to say it has to be done within a reasonable period of time before viability?

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I mean, and I think again, guidance comes.

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Did you never say that in your brief though?

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Did you?

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You never conceded that.

[00:14:19] Speaker 05:
Well, we wouldn't concede that because we don't think facilitation is ever required, but even applying this more narrow framework, I think we did cite the cases from the Supreme Court about parental involvement, where the Supreme Court has upheld parental involvement regimes that take up to three weeks.

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But I thought your argument about sponsorship has always been different, as I understood it.

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It's not that sponsorship allows us

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some finite period of time.

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So what you ought to do is from the moment that we are informed of the fact that an unaccompanied minor in custody wishes to exercise her constitutional right to terminate her pregnancy, we ought to be given a period of time to be able to find a sponsor.

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First of all, that's already been happening.

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Sponsors already been, there's always been a search for a sponsor, even before you know that an unaccompanied minor wants to terminate her pregnancy.

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And your argument has not been what we ought to be given is X number of days to continue that search.

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Because I thought your argument is that the availability of sponsorship as a possibility just means as a blanket matter that we are not violating the Constitution by disallowing someone in our custody who wants to exercise a right to terminate her pregnancy to do so.

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And it doesn't even matter in a particular case if a sponsor isn't or can't be found.

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The idea that sponsorship exists as a possibility means that there's no constitutional violation.

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That's been your argument, as I understand it.

[00:15:48] Speaker 05:
Actually, I think our argument on that point has more to do with voluntary departure.

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We agree that it is important that the

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In distinguishing cases from other circuits involving, say, criminal custody in prisons, where there's no ability of the woman in custody to leave custody voluntarily, the courts have said there's got to be some sort of facilitation in the third and I believe the sixth circuit.

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voluntary departure is always available to a child in ORR custody.

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But sponsorship might not always be available.

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So that is not an automatic way to get out of ORR custody.

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Our argument on the sponsorship point, applying kind of the Garza case and prohibition cases, is that look to those guideposts on the due process clause requirements.

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The court has always said you can have a period of time to work on the parental involvement issues.

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The court has approved state regimes, which are prohibitions on abortion, that allow 21 days, up to 21 days.

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I don't know that that, I think, you know, an ORR sponsorship search involves more complicated issues than simply a state prohibition, because... So you don't dispute the notion that if you had a parental consent statute or

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law that didn't have a bypass, that would be unconstitutional.

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In the context of a state prohibition on abortion, I agree.

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Would it be different for you if ORR had a parental consent policy that didn't provide for a vice pass, you think that would be okay?

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I think it would be okay because again, the child, the government is not imposing the burden.

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The child can leave government custody by

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saying, by going back to her country of nationality.

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So there is never a burden imposed by the government.

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The burden is created by the minor crossing illegally into the country and ending up at the doorstep saying, I would like to come in, and the government's, well, you can't come in, it's going to be a long process.

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So that's equally true of BOP custody, right?

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The person engaged in some kind of conduct to bring themselves within the purview of the BOP.

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They didn't have to do that.

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That's not accurate.

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Because the person, when they're serving a criminal sentence as a set sentence, usually lasts longer than the pregnancy, and they will not be able to get it.

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I'm talking about the conduct that they engage in to commit a crime in the first place.

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This has nothing to do with the crime.

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This has to do with the request to come into the United States at the border, where the Supreme Court has said again and again, Congress can put limitations on that, and that is very important to the undue burden analysis.

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When the person is able to choose to go back to their country of nationality, where they were literally weeks before,

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there is no undue burden being imposed by the government.

[00:18:37] Speaker 02:
So that, okay, that's your voluntary departure argument, that you're saying that because a person in ORR custody always, according to your argument, has the ability to leave and go back to the country from which they came.

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And no matter what obstacles we put in the way of somebody exercising their right while they're here,

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It's fine because they can always go back.

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It's very much like what the Supreme Court said in DeMore where we're talking about the liberty interest to not be in custody at all.

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And the Court said you have to wait.

[00:19:05] Speaker 02:
I don't think it's very much like that because you're talking about the exercise of a right against the United States.

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I mean it's the United States government who

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whose conduct is at stake when it's a right to terminate pregnancy.

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It's a right to terminate pregnancy without a substantial obstacle being placed in its way by the United States government.

[00:19:27] Speaker 02:
And it seems like what your argument is saying is, that's OK if we don't allow an unaccompanied minor in our custody to exercise her right to terminate her pregnancy.

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Because you know what?

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She can leave the country.

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And if she leaves the country, what happens?

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Well, then the right is gone.

[00:19:49] Speaker 02:
So it's not apparent to me how it's an answer to say, I don't understand the argument that says an unaccompanied minor has a right to terminate her pregnancy.

[00:20:00] Speaker 02:
We acknowledge that, because I think the government takes the case on this premise that the unaccompanied minors do have their constitutional right.

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And the answer to the right is, you can leave and go somewhere where that right's not in existence.

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The government is not creating the burden.

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The government simply has restrictions on what happens when you cross the border.

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You cannot just go free into the United States to exercise the constitutional rights that you would normally exercise when you're walking around free in the United States.

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there is a limitation and the person who is continuing to seek entry, it's like they're at the door asking to come in and the court, excuse me, the United States can at the end of the day say, we're sorry, we can put, I mean, if you look at Mese, the person was stuck at Ellis Island for months and the Supreme Court said, well, you can say, you know, that's as far as you get and that's what we're saying.

[00:20:55] Speaker 02:
But the government hasn't,

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made the argument in this case, it didn't make it at the stage stage, it hasn't made it at its briefing before us now, that there isn't a right.

[00:21:05] Speaker 02:
You're not making the case, as far as I understand it, that an unaccompanied minor doesn't have the due process right.

[00:21:14] Speaker 02:
Am I right about that?

[00:21:17] Speaker 05:
The undue burden test looks at a burden imposed by the United States.

[00:21:21] Speaker 05:
So we're not saying there's no constitutional right, but there is a close link, because to exercise the constitutional right, you are asking the United States to do something, which is open the door.

[00:21:31] Speaker 05:
And that is something that the United States never has to do, and it doesn't have to do in this context, except as authorized by Congress.

[00:21:38] Speaker 05:
And that's very well established in the law.

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Here, they don't challenge the application of the statute.

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The statute is being applied correctly here, so the United States is not imposing a burden in saying to enter the United States, the United States has to take action, it has to open the door.

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And opening the door is the sort of facilitation that can't be done.

[00:21:58] Speaker 02:
And just to be clear, this argument would apply to adults in ICE custody, too.

[00:22:02] Speaker 02:
It would, in other words, an adult in ice custody.

[00:22:06] Speaker 02:
It has nothing to do with the fact that the individuals in this case are minors or that there are parental consent regimes that could justify some sort of regulatory apparatus in the state environment.

[00:22:16] Speaker 02:
This argument that you're making now would mean that

[00:22:18] Speaker 02:
the government would not have to permit an adult in ICE custody to obtain an abortion.

[00:22:24] Speaker 05:
I think that's right, although, I mean, if you look at the TVPRA, the first provision the TVPRA says there's a strong government interest when a minor comes to the border to return that minor to his or her country of nationality promptly.

[00:22:38] Speaker 05:
with their parents.

[00:22:39] Speaker 05:
I mean, so there is a little bit more there, but I think the departure argument for people who are at the border would apply the same way.

[00:22:49] Speaker 05:
Right.

[00:22:51] Speaker 05:
So in other words, I do want to say ORR sometimes, but not often in this case.

[00:22:57] Speaker 05:
ICE often has custody of people captured in the interior, where there might be different things at issue.

[00:23:03] Speaker 02:
OK, but for adults in ICE custody who are detained in the same manner as the hypothetical minor you're talking about, it's the same argument.

[00:23:12] Speaker 02:
Same essential argument applies there.

[00:23:14] Speaker 02:
No need.

[00:23:14] Speaker 02:
So it's by grace of the government that's allowing adults in ICE custody

[00:23:20] Speaker 02:
to exercise their right to terminate the pregnancy.

[00:23:23] Speaker 05:
That, yeah, because of the availability of voluntary departure, that's not a constitutional requirement.

[00:23:28] Speaker 05:
That doesn't mean, I mean, ICE policy is to allow that, and there are different factors at stake there, keep in mind, because of the decision-making role that needs to be, that ORR needs to take part in.

[00:23:39] Speaker 05:
That, ICE does not have that argument.

[00:23:41] Speaker 05:
ICE does not have the argument that because you have children,

[00:23:44] Speaker 05:
There is a role for ORR in addressing maturity and best interest.

[00:23:48] Speaker 02:
That is not.

[00:23:49] Speaker 02:
Okay, then let's shift to an argument that is unique to minors, as I understand it, which is the sponsorship piece.

[00:23:54] Speaker 02:
So we have voluntary departure, which applies both to adults and minors.

[00:23:58] Speaker 02:
And the government's argument, I guess, is that

[00:24:00] Speaker 02:
that because this is somebody who came into the country, then the government has blanket authority just not to permit an exercise of the right to terminate pregnancy at all as to both minors and adults.

[00:24:12] Speaker 02:
Let's just assume for purposes of argument that that one doesn't get you all the way home, just for purposes of argument.

[00:24:16] Speaker 02:
I know you disagree.

[00:24:18] Speaker 02:
But then we go to sponsorship, which is an argument that applies to minors.

[00:24:21] Speaker 02:
Now, as to minors, in the normal state regime, parental consent can't be imposed as a requirement absent bypass.

[00:24:31] Speaker 02:
parental consent.

[00:24:32] Speaker 05:
Yeah, that's correct.

[00:24:33] Speaker 05:
The Supreme Court has never addressed parental notice, and that's another piece of our argument that we'll get to later.

[00:24:38] Speaker 02:
But in terms of consent, that's right.

[00:24:39] Speaker 02:
And how does consent differ from sponsorship?

[00:24:42] Speaker 02:
Because with sponsorship, it seems like just as with consent, the person plays a role in trying to bring about

[00:24:50] Speaker 02:
the result that the government is pointing to on one hand to obtain consent, on the other hand to find a sponsor.

[00:24:57] Speaker 02:
And we know that that isn't enough to impose a blanket parental consent requirement.

[00:25:02] Speaker 02:
There has to be a bypass.

[00:25:04] Speaker 02:
But with sponsorship,

[00:25:06] Speaker 02:
There's no bypass.

[00:25:07] Speaker 02:
It's just your argument is it's like parental consent but without a bypass because it's something as to which minor plays a role.

[00:25:14] Speaker 02:
But at the end of the day, it's our call.

[00:25:17] Speaker 02:
The government gets to decide whether a sponsor is approved or not.

[00:25:19] Speaker 02:
And the sponsor, by the way, gets to decide whether the sponsor is going to participate, just like a parent gets to decide whether to give consent.

[00:25:26] Speaker 02:
So we know that's unconstitutional with respect to parental consent without a bypass.

[00:25:30] Speaker 02:
But your argument is that it's nonetheless OK for sponsorship without a bypass.

[00:25:33] Speaker 05:
Well, I mean, there's no requirement that the sponsor consent to the abortion.

[00:25:39] Speaker 05:
And that's what you would look at if you were just applying a parental consent regime to the sponsorship.

[00:25:43] Speaker 05:
The sponsorship is about providing a safe home for the child.

[00:25:49] Speaker 06:
Does the sponsor have the capacity to refuse to allow the child to have the abortion?

[00:25:55] Speaker 05:
No.

[00:25:55] Speaker 05:
I mean, a state, once this child is in the sponsor's custody, then the normal state will... Does the sponsor have the capacity to refuse to be a sponsor?

[00:26:03] Speaker 02:
Sure.

[00:26:03] Speaker 02:
Okay, well then it doesn't matter if they have the capacity to refuse to give an abortion because they don't have to agree to be a sponsor anyway.

[00:26:10] Speaker 05:
Yeah, that's right absolutely true and again, I don't think you can just apply kind of the I mean the parental consent Regime from Baladi has has you know four factors it just it's I think it's informative of the time that ORR should have to get the child into the place where Judge Millett said is the best circumstance for this decision just as Kennedy said the whole notion of kind of deciding I make that the beginning of

[00:26:37] Speaker 05:
understanding the implications of this decision arise in the family.

[00:26:41] Speaker 05:
To have the child in that place surrounded by family and friends rather than in custody of a government contractor to make that difficult decision.

[00:26:50] Speaker 05:
That doesn't mean that the child necessarily will tell the sponsor.

[00:26:53] Speaker 05:
That doesn't mean the sponsor will have any decision-making role.

[00:26:56] Speaker 05:
That just means ORR, because the Supreme Court has provided time to have those parental regimes work their way through the courts,

[00:27:06] Speaker 05:
the government should also have time to take itself out of the equation.

[00:27:09] Speaker 02:
Do you know of any other context in which a law has been upheld, a restriction on the exercise of the right to terminate a pregnancy has been upheld on the basis of some eventuality that could come to pass at the discretion of the body that's imposing the restriction to begin with?

[00:27:26] Speaker 02:
Because that's what's happening here.

[00:27:28] Speaker 02:
It's up to the government whether to approve a sponsor.

[00:27:30] Speaker 05:
If a judicial bypass court says the child's not mature or it's not in her best interest, then that is a restriction.

[00:27:37] Speaker 02:
That is a prohibition.

[00:27:40] Speaker 02:
That's not the entity that's imposing the restriction.

[00:27:42] Speaker 05:
Well, I mean, you're asking if the court has ever upheld a regime where a child can't, in the end of the day, get an abortion.

[00:27:50] Speaker 05:
The answer is yes.

[00:27:51] Speaker 05:
In Harris v. McCray, the court said the government doesn't have to fund an abortion, even though indigent women, the reality is they won't be able to get one.

[00:28:01] Speaker 05:
The Supreme Court said that.

[00:28:02] Speaker 05:
So when you're talking about government involvement and facilitation.

[00:28:05] Speaker 02:
But those are situations in which the restriction is not being imposed by the government itself.

[00:28:10] Speaker 02:
Here, in fact, that was the whole rationale of that line of decisions, is that it's a restriction that's not being imposed by the government itself.

[00:28:17] Speaker 02:
Here, the restriction is being imposed by the government itself.

[00:28:20] Speaker 05:
And the question is... Again, that's not our ultimate position.

[00:28:23] Speaker 05:
The restriction's not being imposed by the government.

[00:28:26] Speaker 06:
And I think the facilitation cases don't just rely on that factor, they also... My understanding is that, Keely, that last answer was the government is not imposing the restriction because

[00:28:39] Speaker 06:
There is a, the option of voluntary departure.

[00:28:41] Speaker 06:
Is that correct?

[00:28:43] Speaker 05:
I'm sorry, say, because there are voluntary departures ultimately.

[00:28:47] Speaker 06:
In other words, because of voluntary departure, the government is not imposing restrictions in any case.

[00:28:53] Speaker 05:
That is a piece of it.

[00:28:54] Speaker 05:
And another piece of it is the Supreme Court cases that say the government does not have to commit any.

[00:29:02] Speaker 06:
I'm just trying to understand your point.

[00:29:04] Speaker 06:
I think I understand what you were saying in response to Judge Srinivasan is the government is not ever imposing a restriction because there's always the option of voluntary departure, which is even a bigger option than a judicial bypass.

[00:29:24] Speaker 05:
Yes, there is always departure from the United States.

[00:29:27] Speaker 05:
There is often being released to a sponsor.

[00:29:30] Speaker 05:
Now, think about it this way.

[00:29:31] Speaker 05:
This is ORR's mission is kind of to step in an emergency.

[00:29:35] Speaker 06:
Well, suppose there was no release to a sponsor available.

[00:29:38] Speaker 06:
Would your view is still the government's not imposing any burden?

[00:29:41] Speaker 06:
Absolutely.

[00:29:43] Speaker 06:
Can I answer the question?

[00:29:44] Speaker 06:
Sorry.

[00:29:45] Speaker 06:
Because there is a voluntary departure option?

[00:29:48] Speaker 05:
Yes, that's our position.

[00:29:50] Speaker 06:
And that's a broader option than even a judicial bypass.

[00:29:53] Speaker 05:
It is.

[00:29:54] Speaker 05:
There's no judicial involvement necessary, except to, you know, sign off on the departure, which is a matter of, it doesn't take very long.

[00:30:02] Speaker 02:
It happens as a matter of time.

[00:30:04] Speaker 02:
Of course, when you get a judicial bypass, you get to exercise the right.

[00:30:09] Speaker 05:
The state prohibitions fall away if there's a judicial bypass.

[00:30:14] Speaker 02:
And when you get voluntary departure, the right's gone.

[00:30:19] Speaker 05:
Well, I don't know why.

[00:30:20] Speaker 05:
The government has nothing to do with that.

[00:30:26] Speaker 02:
You're not in a position to exercise the right when you voluntarily depart and go to a different country.

[00:30:31] Speaker 05:
That's not necessarily true.

[00:30:32] Speaker 05:
Why?

[00:30:32] Speaker 05:
I mean, you're making assumptions.

[00:30:33] Speaker 05:
This is a class-wide relief.

[00:30:35] Speaker 05:
And they've said, well, there's three countries that prohibit abortion.

[00:30:38] Speaker 05:
But even putting that to the side.

[00:30:39] Speaker 02:
No, no.

[00:30:41] Speaker 02:
I'm not talking about whether the other country allows abortion.

[00:30:43] Speaker 02:
First of all, there's definitely situations in which the other country won't.

[00:30:46] Speaker 02:
I'm saying the right is against the United States government.

[00:30:49] Speaker 02:
It's an individual right.

[00:30:50] Speaker 02:
And you're just not in a position to assert that right anymore when you've departed and gone to a different country.

[00:30:55] Speaker 05:
I mean, I guess I'm not totally following.

[00:30:57] Speaker 05:
It's a liberty of the individual, so I don't understand it's a right against the United States.

[00:31:03] Speaker 05:
I don't think that's the right way to look at it.

[00:31:05] Speaker 05:
The individual liberty is not being restricted by the United States.

[00:31:09] Speaker 05:
The United States is just not going to take part in it.

[00:31:11] Speaker 06:
It's not going to facilitate it.

[00:31:12] Speaker 06:
May I ask, why are you not starting with

[00:31:15] Speaker 06:
the procedural issues involving whether this is an appropriate class.

[00:31:20] Speaker 05:
Well, I do want to get to that.

[00:31:21] Speaker 05:
I've totally run out of time.

[00:31:23] Speaker 06:
Logically, that's what you start with, isn't it?

[00:31:29] Speaker 05:
Well, Your Honor, I wanted to talk first about how the district court injunction is too broad.

[00:31:36] Speaker 05:
And there's one other thing on the overbreath that I'd really just like to mention is the gag order of the district court, which prohibits any discussion of the pregnancy or the abortion decision with parents, medical professionals, or doctors absent the minor's consent.

[00:31:49] Speaker 05:
There's simply no support for that injunction in the district court's order, and there's no basis for it, and that needs to be reversed.

[00:31:57] Speaker 05:
It is critical.

[00:31:58] Speaker 05:
And again, getting back to the cases from the Supreme Court talking about abortion, the role of the parents is important, and the district court's restricting any communications about it is inappropriate.

[00:32:14] Speaker 04:
Can I just, I want you to get to the class certification issue also, but just so I understand your argument about how we look at the government's role.

[00:32:25] Speaker 04:
So if the US government arrested someone who was in the country legally, but they are an immigrant, and they charged them and they said,

[00:32:44] Speaker 04:
We're charging you with this felony.

[00:32:48] Speaker 04:
You don't get a jury trial.

[00:32:49] Speaker 04:
You don't give a right to a lawyer.

[00:32:52] Speaker 04:
You don't have a right to confront any witnesses.

[00:32:56] Speaker 04:
It's going to be a summary procedure.

[00:33:00] Speaker 04:
But you can voluntarily leave the country.

[00:33:03] Speaker 04:
and you won't be subject to these charges.

[00:33:08] Speaker 04:
So you can, your choices are go forward with this trial where you have no rights or leave the country.

[00:33:17] Speaker 04:
Is that constitutional for the government to do that?

[00:33:21] Speaker 04:
No, that would not be constitutional.

[00:33:23] Speaker 05:
And I think those rights lodge with the criminal process itself.

[00:33:26] Speaker 05:
So you couldn't just have a criminal process that didn't include the protections from the Sixth Amendment and the Fourth Amendment.

[00:33:34] Speaker 04:
But how is that the government not

[00:33:39] Speaker 04:
How in that example was the government not essentially depriving the person of their rights?

[00:33:47] Speaker 04:
They're giving them the choice to leave the country so that they're not subject to prosecution.

[00:33:51] Speaker 05:
Well, again, the voluntary departure piece in this case is very closely linked to the facilitation cases of the Supreme Court, which say the government does not have to

[00:34:01] Speaker 05:
commit any resources to facilitate abortion.

[00:34:06] Speaker 05:
So I think that's where this comes from.

[00:34:08] Speaker 05:
I don't think it's a general principle that goes beyond that.

[00:34:10] Speaker 05:
I think it's because the United States, the Supreme Court has recognized that the United States doesn't have to, it can recognize its profound interest in the life in the mother and it does not have to commit any resources to ending that.

[00:34:25] Speaker 05:
because of that principle, it can say, if you come into our custody and are now in a difficult situation where you want our assistance to terminate a pregnancy, you actually have to choose to leave.

[00:34:38] Speaker 05:
So I think it's very closely linked to that line of precedent.

[00:34:43] Speaker 05:
And so I don't think it would work for the example you provided.

[00:34:48] Speaker 02:
So even in the abortion context, for example, if you had a state that

[00:34:51] Speaker 02:
that you can go to a different state and exercise your right, you would say that that's different.

[00:35:01] Speaker 05:
I think that raises a host of different issues and would be, it would clearly not be permissible.

[00:35:07] Speaker 02:
And that's just not.

[00:35:08] Speaker 05:
And the way you'd characterize the difference is,

[00:35:11] Speaker 05:
There's a huge difference between someone at the border of the United States requesting entry and someone who is residing in a state and being told to leave.

[00:35:21] Speaker 05:
So that is not the same situation at all.

[00:35:24] Speaker 05:
So I don't think that principle would apply at all.

[00:35:26] Speaker 02:
Even though you don't take issue with the notion that the person at the border and the way that the unaccompanied minors in this case are detained, that they have the right.

[00:35:40] Speaker 02:
You're not making the argument that they don't have the right.

[00:35:42] Speaker 02:
You're saying that they have the right in the same way that a person that lives in a state has the right.

[00:35:46] Speaker 02:
So they do have the same right, but it's not the same.

[00:35:49] Speaker 02:
It's not quite the same.

[00:35:50] Speaker 05:
I mean, if the state, if the state said we're, we are not going to fund abortions, you can go to another state.

[00:35:56] Speaker 05:
That would be fine.

[00:35:57] Speaker 05:
So it's also tied into the facilitation point.

[00:35:59] Speaker 05:
The Supreme Court's very clear that a state does not have to expend any resources, and that has to happen here.

[00:36:06] Speaker 05:
You can't get around that.

[00:36:07] Speaker 05:
I don't think you should.

[00:36:09] Speaker 06:
What you're saying, counsel, and as I understand in the dialogue between Judge Shun and Voss, is you don't deny there's a right.

[00:36:17] Speaker 06:
You say the right is, however, not a right that is the same right as someone would have in this country who is not an illegal minor.

[00:36:28] Speaker 06:
because there are conditions on the right.

[00:36:32] Speaker 06:
It's not the same exact right.

[00:36:35] Speaker 05:
I think that's correct.

[00:36:37] Speaker 05:
There are two really important differences.

[00:36:39] Speaker 05:
You're requesting entry into the United States, and there's a requirement that the government take part in ending the life.

[00:36:47] Speaker 02:
I understand the second one.

[00:36:48] Speaker 02:
At least I understand conceptually that you're saying facilitation differentiates this from a context in which a state would say to somebody who's not in state custody,

[00:36:58] Speaker 02:
we're banning abortions, and the reason we're able to do that is because you could go to a different state.

[00:37:02] Speaker 02:
So your non-facilitation argument gives you a basis to distinguish that.

[00:37:07] Speaker 02:
I'm not quite sure I follow how the status at the border gives you a basis to differentiate that situation, given that you're allowing that the money company miners in this case have the right, which is the same right that individuals within a state do.

[00:37:23] Speaker 06:
Is it the same right?

[00:37:26] Speaker 05:
Well, I mean, we agree for the purposes of this preliminary appeal that the undue burden test applies.

[00:37:33] Speaker 05:
So we're not disputing that in this appeal.

[00:37:35] Speaker 05:
But when applying the undue burden test, it's really important to look at the issue of facilitation, where the Supreme Court has gone the opposite way.

[00:37:43] Speaker 02:
Right.

[00:37:43] Speaker 02:
So that's your facilitation argument.

[00:37:45] Speaker 02:
And that, I understand, that is a basis for distinguishing it as.

[00:37:48] Speaker 02:
if the state hypothetical is facilitation, but I'm not, and it sounds like you're not taking the position that the right as against the undue burden constitutional requirement is any different.

[00:38:01] Speaker 02:
It's just that the government, you say, has additional leeway in this context because of the non-facilitation argument.

[00:38:09] Speaker 02:
I think that's right.

[00:38:10] Speaker 05:
I mean, there is a strong governmental interest here that has to be dealt with.

[00:38:15] Speaker 05:
And I'm not sure the Garza decision last time really dealt with that.

[00:38:20] Speaker 05:
I think it's important that that be dealt with.

[00:38:22] Speaker 05:
I think government officials who are a part of this process, who have a profound interest in life, and the government agency itself, a legitimate interest in life,

[00:38:34] Speaker 05:
can be pursued through government policies involving the government's own conduct.

[00:38:42] Speaker 02:
The way that interest has been described in the decisions, I'm sorry, the way that interest has been described in the decisions is that it's an interest that goes to arming the individual who's right at stake with information.

[00:38:58] Speaker 02:
So that they can make the free choice that's guaranteed to them by the Constitution.

[00:39:02] Speaker 02:
That's the way that Casey describes it.

[00:39:05] Speaker 02:
Am I not right about that?

[00:39:06] Speaker 02:
Arming the individual with information?

[00:39:07] Speaker 02:
Correct.

[00:39:08] Speaker 02:
The state, the governmental interest, the governmental interest in promoting potential life is an interest that

[00:39:15] Speaker 02:
goes towards giving the individual whose rights at stake information with which to make the choice.

[00:39:20] Speaker 05:
Well, it's more than that.

[00:39:21] Speaker 05:
It's definitely more than that.

[00:39:22] Speaker 05:
Harris and Webster, Webster said a government doesn't have to allow any abortions in a public hospital.

[00:39:28] Speaker 02:
That's different than arming with information.

[00:39:30] Speaker 02:
But those aren't even undue burden cases because those are cases in which the government isn't required to alleviate an impediment to obtaining an abortion that's not even of the government's own making.

[00:39:41] Speaker 02:
Here, the impediment is of the government's own making.

[00:39:44] Speaker 05:
We don't agree.

[00:39:45] Speaker 05:
We don't agree that it's of the government's own making.

[00:39:47] Speaker 05:
The government can say at the border, we're not opening the door for someone to get an abortion.

[00:39:52] Speaker 05:
And that is not an impediment.

[00:39:55] Speaker 05:
That is a request for action by the government to help get the abortion.

[00:40:00] Speaker 05:
ORR has to put up signs so that the children can get access to abortion, help do background checks for the people taking them to get an abortion.

[00:40:09] Speaker 05:
has to arrange the visits to get an abortion.

[00:40:13] Speaker 05:
Here's how I understand your point.

[00:40:17] Speaker 06:
You're really resisting the dichotomy that Judge Schwinn-Avassin wishes you to focus on.

[00:40:25] Speaker 06:
You're resisting it by saying this is not the same right.

[00:40:28] Speaker 06:
This right is conditioned by a number of other factors.

[00:40:32] Speaker 06:
Isn't that what you're saying?

[00:40:34] Speaker 05:
That's what we're, well, we're not saying it's not the same right.

[00:40:38] Speaker 05:
And for purposes of this appeal.

[00:40:40] Speaker 05:
Which is to acknowledge that it is the same right.

[00:40:45] Speaker 05:
It's the same right, but it's not the government who's creating the burden.

[00:40:49] Speaker 05:
And that is an essential part of the government facilitation jurisprudence.

[00:40:53] Speaker 05:
This is how I think ORR thinks about it.

[00:40:56] Speaker 05:
They are a temporary emergency custodian, just a temporary custodian.

[00:41:01] Speaker 05:
Think about the administrator of a boarding school or a temporary place.

[00:41:09] Speaker 05:
That's how they view their role.

[00:41:11] Speaker 05:
And if someone comes and says, well, you know, I want to, I want to, I need an abortion, the role of ORR would be, and the role of someone who's administering sort of a temporary custodian like a,

[00:41:25] Speaker 05:
a neighbor would be, first, talk to the parents, figure out what to do, see if there are options to get the child into a better place to deal with that issue, and here the district court has said none of that can happen.

[00:41:38] Speaker 05:
And from our perspective, even under the guards of decision, it's important that, given ORR's temporary role,

[00:41:45] Speaker 05:
as plaintiffs say, 41 days, and it's a little longer now, is the average time in custody.

[00:41:50] Speaker 05:
And I guess I'm getting back to the sponsorship point.

[00:41:52] Speaker 05:
Given that temporary role, just like other entities that would have temporary custody of someone else's child, they would want to explore options other than signing the papers to go get the abortion, helping the person get to the abortion doctor, taking part in that decision.

[00:42:11] Speaker 05:
If they had to do that, they would feel responsible.

[00:42:13] Speaker 05:
They would be facilitating the abortion.

[00:42:15] Speaker 02:
And just to make sure that we understand the parameters of your sponsorship argument, the sponsorship argument means that the government can withhold the ability of a person of a minor within its custody to obtain an abortion, even if in a particular case, a sponsor is not found.

[00:42:34] Speaker 05:
Again, because we have the voluntary departure backstop, yes.

[00:42:38] Speaker 05:
But if you reject the voluntary departure backstop, I think you would look to the guideposts of the Supreme Court's cases that provide a period of time, which the district court did not hear, to allow decision making to involve parents.

[00:42:50] Speaker 02:
If appropriate.

[00:42:51] Speaker 02:
The government has never argued for a period of time, as far as I know.

[00:42:55] Speaker 05:
Well, I mean, in our brief, again, our argument is that there never needs to be facilitation.

[00:43:00] Speaker 05:
But if you're going down a different path, that's why I'm here to sort of talk about the issues.

[00:43:04] Speaker 05:
We have cited in our brief the cases that authorize regimes of up to 21 days in the context of a state prohibition.

[00:43:13] Speaker 05:
We think it would work differently here, but we think the court has acknowledged that time is definitely available for this kind of issue to be resolved.

[00:43:21] Speaker 02:
So you're asking the court to construct a time period?

[00:43:24] Speaker 02:
We're not being asked to give an up or down vote on a sponsorship policy that the government has come forward with that says, for example, even though we've been looking for a sponsor, we need an additional period of X number of days to find a sponsor when we come to learn that an individual wants to exercise her right to terminate her pregnancy.

[00:43:47] Speaker 02:
You're not saying that because there is no period of days that I'm aware of.

[00:43:50] Speaker 02:
that you've put forward.

[00:43:51] Speaker 05:
I mean, the district court order prevents any involvement of RRR.

[00:43:55] Speaker 05:
So I'm not sure how such a policy could get addressed.

[00:43:59] Speaker 05:
But I mean, I think guidance from the court on the limits of the due process clause.

[00:44:03] Speaker 02:
But you never proposed to the district court either that there was a particular number of days that was necessary because the government.

[00:44:10] Speaker 02:
We told the district court repeatedly that it would happen quickly.

[00:44:12] Speaker 02:
It could happen quickly.

[00:44:13] Speaker 02:
It could happen quickly.

[00:44:14] Speaker 02:
Yeah.

[00:44:15] Speaker 02:
But not that it always would.

[00:44:16] Speaker 02:
And so because it might, because it could be never.

[00:44:19] Speaker 02:
And so it's one thing to say that sponsorship can happen quickly.

[00:44:24] Speaker 02:
I think nobody disputes that it can happen quickly.

[00:44:26] Speaker 02:
The point, it seems to me, is that sponsorship doesn't ever have to happen.

[00:44:30] Speaker 02:
And unless the government comes forward with a program under which it says, here's what we want an up or down vote on, we'd like to have an extra

[00:44:40] Speaker 02:
number of days, like a state regime that would presumably put in place a number of days to obtain parental consent or whatever type of regime we're talking about.

[00:44:50] Speaker 02:
And the reason we want to do that is because it's in furtherance of these interests.

[00:44:54] Speaker 02:
That would be one thing.

[00:44:55] Speaker 02:
But here, there's just no such program that's being put forward by the government, because the government's argument has been the abstract availability of sponsorship means that we don't have to allow release for purposes of that kind of abortion.

[00:45:07] Speaker 05:
Well, I mean, the standard in Bellotti was the process has to be expeditious.

[00:45:11] Speaker 05:
And if the district court had entered an order saying, find a sponsor expeditiously or facilitate the abortion, then we might have a discussion.

[00:45:17] Speaker 05:
But that's not what the order said.

[00:45:20] Speaker 05:
that the scope of injunctive relief has to comport to the constitutional injury.

[00:45:24] Speaker 06:
Well, why didn't you offer a reasonable period of time?

[00:45:28] Speaker 05:
Again, our basic argument is that there's a voluntary departure backstop, so facilitation never needs to happen.

[00:45:36] Speaker 05:
But we did cite all the cases talking about the period of time allowed by the Supreme Court in parental involvement situations.

[00:45:44] Speaker 04:
But our review is abuse of discretion, right?

[00:45:48] Speaker 04:
It is.

[00:45:49] Speaker 04:
So how is it that you don't offer some sort of a standard

[00:45:59] Speaker 04:
such as saying, you know, give us until at least 20 weeks of pregnancy to find a sponsor, and if at that point we don't, then we will, um, accede to the minor's request, et cetera.

[00:46:13] Speaker 04:
You don't do that, um,

[00:46:17] Speaker 04:
And yet you come here to this court and say that the district court's order is extreme.

[00:46:23] Speaker 04:
But you didn't propose an in-between below.

[00:46:28] Speaker 04:
So why do you get to come here and say that an extreme order was an abuse of discretion?

[00:46:35] Speaker 04:
I mean, we're not in the business of kind of formulating these orders ourselves.

[00:46:41] Speaker 04:
We're in the business of reviewing orders imposed below.

[00:46:46] Speaker 05:
We're asking the court to explain what the law requires here.

[00:46:49] Speaker 05:
An injunction that exceeds the legal requirements is an abuse of discretion.

[00:46:54] Speaker 05:
And the legal requirements are that, at the very least, ORR should have some time to expeditiously find a sponsor.

[00:47:02] Speaker 05:
That's what Bellotti tells us.

[00:47:03] Speaker 05:
That's what the parental involvement cases tell us.

[00:47:05] Speaker 05:
That is not some sort of improper request that the court tell ORR what its policy would be.

[00:47:12] Speaker 05:
Again, it would be a different story if the district court had said,

[00:47:17] Speaker 05:
To the extent your policy is you refuse all abortions, that's invalid.

[00:47:21] Speaker 05:
Go back to the drawing board.

[00:47:23] Speaker 05:
But the district court didn't do that.

[00:47:24] Speaker 05:
The district court issued the opposite policy.

[00:47:27] Speaker 05:
The district court made the policy here.

[00:47:28] Speaker 05:
And now that's where we're stuck in.

[00:47:29] Speaker 05:
The policy is there can be no involvement of ORR.

[00:47:32] Speaker 05:
So we need some guidance from this court.

[00:47:33] Speaker 06:
If the district court had said you have a reasonable period of time to find a sponsor and there's a junction, would you be contesting it?

[00:47:41] Speaker 06:
Would you still have the argument of voluntary departure, but would you be contesting that portion of an order if her order had said you have a reasonable period of time to find a sponsor?

[00:47:55] Speaker 05:
I mean, I don't know what would have happened in those circumstances.

[00:48:00] Speaker 06:
No, no, I'm asking what your position would be if that was the order.

[00:48:02] Speaker 06:
I mean, that's not a far-fetched hypothetical.

[00:48:06] Speaker 05:
Well, I don't authorize appeals, but if that order had issued, it would have been a different issue.

[00:48:12] Speaker 05:
I think our arguments would still be that such an order was invalid because of the voluntary departure backdrop and because of the difference in facilitating the abortion here from a prohibition on abortion.

[00:48:24] Speaker 02:
And just to be clear, so a reasonable period of time to find a sponsor.

[00:48:29] Speaker 02:
The search for a sponsor is always ongoing.

[00:48:33] Speaker 02:
The search for a sponsor has nothing to do with an unaccompanied minor's decision to seek to terminate her pregnancy.

[00:48:40] Speaker 02:
It's not as if we're looking for a sponsor all along

[00:48:45] Speaker 02:
Now we realize that the minor wants to assert her right to terminate her pregnancy.

[00:48:49] Speaker 02:
Now we're really going to look for a sponsor.

[00:48:50] Speaker 02:
This is the Uber search for a sponsor that kicks in.

[00:48:52] Speaker 02:
There's nothing like that, right?

[00:48:54] Speaker 02:
It's the same search for a sponsor that's always happened.

[00:48:56] Speaker 05:
The agency works hard to find a sponsor and I think worked especially hard in the cases below to get the child into a place where that decision could be made in better circumstances.

[00:49:07] Speaker 05:
And it moved very quickly.

[00:49:08] Speaker 05:
In the case of Ms.

[00:49:09] Speaker 05:
Moe, it was about a week.

[00:49:11] Speaker 05:
So it was a very fast process.

[00:49:13] Speaker 05:
In the case of Ms.

[00:49:14] Speaker 05:
Rowe, I think it was going to be a couple weeks until they determined she was over 18 already.

[00:49:18] Speaker 02:
What I'm saying is this idea that let's suppose that the government had actually put forward a sponsorship alternative to the district court that the district court could have reviewed, other than just the blanket argument that the abstract availability of sponsorship means.

[00:49:36] Speaker 02:
that it's never an undue burden to deny the right to terminate a pregnancy in these circumstances.

[00:49:42] Speaker 02:
Because as I understood it, that was the argument that was presented to the district court, and that's the argument that the district court responded to.

[00:49:46] Speaker 02:
But let's suppose that the government put forward an argument that said, you know what, we need a reasonable time to find a sponsor.

[00:49:52] Speaker 02:
You should grant us a reasonable time to find a sponsor.

[00:49:54] Speaker 02:
What that would mean is just some extra time to do the same thing that we've always been doing, looking for a sponsor.

[00:50:02] Speaker 02:
That's what that would be, right?

[00:50:03] Speaker 05:
Yeah, there's nothing wrong with ORR using existing law which instructs it to properly find a sponsor to avoid the need to participate in the emotion.

[00:50:14] Speaker 02:
So then what would be the point of having a reasonable time?

[00:50:16] Speaker 02:
In other words, it's just the same search for a sponsor that's always been happening.

[00:50:21] Speaker 02:
And so would the backstop then be some period of time before viability?

[00:50:25] Speaker 02:
So the argument would be, we get to search for a sponsor until, it would be up to the government to come up with the policy, but something like, it doesn't matter when we find out that somebody wants to assert her right to terminate her pregnancy.

[00:50:42] Speaker 02:
she's going to have to wait to exercise that right until X number of days before viability.

[00:50:47] Speaker 05:
Again, I mean, we're starting to get into our class action arguments.

[00:50:51] Speaker 05:
The claims here just are not common for reasons like this.

[00:50:55] Speaker 05:
Every child in custody will have a different.

[00:50:58] Speaker 02:
Before we get to the class action part, because we do want to hear about that, and we want to give you time to do that for sure.

[00:51:03] Speaker 02:
I'm just trying to understand this notion that there could have been a district court order that said something like a reasonable time to find a sponsor, because I don't understand that.

[00:51:10] Speaker 02:
And the reason I don't understand it is, what is a reasonable time to find a sponsor, given that it's the same search for a sponsor that's always been happening, when the backstop, according to the government's argument, as I perceive it, is viability?

[00:51:22] Speaker 02:
So then the argument would be, we get to look for a sponsor until X number of days before viability.

[00:51:29] Speaker 02:
Would that be the alternative policy?

[00:51:32] Speaker 05:
I mean, that is certainly something that, look,

[00:51:39] Speaker 06:
Let me put it another way.

[00:51:42] Speaker 06:
Would you take the position that you have a right to seek a sponsor when a young woman was only one week away from viability?

[00:51:54] Speaker 05:
All of those factors would be relevant to the... No, no, I answer the question.

[00:51:59] Speaker 06:
Would you have a right to seek a sponsor when the young woman was one week away from viability?

[00:52:05] Speaker 05:
If we're applying the framework of GARZA,

[00:52:08] Speaker 05:
And looking at what the Garza court said about sponsorship, no.

[00:52:13] Speaker 05:
Now, so I think that, and this gets me back to the fact that every claim is different.

[00:52:20] Speaker 02:
What would be the government's argument?

[00:52:21] Speaker 02:
Because you mean Garza being the district court's decision to Garza, or applying?

[00:52:25] Speaker 05:
The court, the vacated ombach ruling, which talked about the length of the search of the sponsorship in that individual case is important.

[00:52:32] Speaker 05:
And it gets me back to, every individual case is different.

[00:52:35] Speaker 05:
If there is a requirement,

[00:52:37] Speaker 05:
that government officials facilitate the abortion, it arises at different times for different individuals in different circumstances.

[00:52:45] Speaker 05:
It might not arise at all if a sponsor can be found quickly.

[00:52:48] Speaker 05:
It might arise quickly if a young woman is close to viability.

[00:52:53] Speaker 05:
It might not arise if their age, if the young woman is very young or their maturity or best interest issues, which are things that all these things are relevant

[00:53:05] Speaker 05:
under the Supreme Court's jurisprudence.

[00:53:07] Speaker 05:
And all these things were disregarded by the district court's orders.

[00:53:11] Speaker 02:
Can I ask this about the facts that could draw distinctions?

[00:53:15] Speaker 02:
Does the government see a distinction between a situation in which an unaccompanied minor asserts her right to terminate her pregnancy at week two, let's say?

[00:53:30] Speaker 02:
that which leaves quite a bit of time until liability for the government's understanding.

[00:53:36] Speaker 02:
Would the government take the position that there's a difference between saying in that circumstance, there's three days to find a sponsor as opposed to all the time necessary before one week before viability?

[00:53:48] Speaker 05:
I'm sorry it's taken me a while to get there.

[00:53:50] Speaker 05:
The court's asked several times, why didn't you propose a time period?

[00:53:52] Speaker 05:
I mean, our position is these are individual cases.

[00:53:56] Speaker 05:
Every case raises its own set of facts.

[00:53:58] Speaker 05:
And there's one.

[00:53:59] Speaker 05:
If it's very early in the pregnancy and there's more time to find a sponsor, the government should have that leeway, given the strong interest in not being part of the abortion.

[00:54:08] Speaker 02:
Should have the leeway to take it out until x number of days before viability, even if the right is asserted very early in the process.

[00:54:19] Speaker 05:
those factors would have to be looked at in individual cases.

[00:54:22] Speaker 05:
And some of them, they'll raise tough issues.

[00:54:25] Speaker 05:
But again, we think their government has a strong, legitimate, and a profound interest in the life of the child in the womb and can pursue that interest

[00:54:40] Speaker 05:
through its actions of its own conduct.

[00:54:46] Speaker 05:
And that is what is in conflict here in this case.

[00:54:49] Speaker 05:
And given that, those types of balancing has to be done in each individual case.

[00:54:55] Speaker 05:
If someone has more time, there might be more time to look for a sponsor.

[00:54:59] Speaker 05:
If someone has less time, there might be less time when those interests come into conflict.

[00:55:05] Speaker 05:
But the district court put the line here.

[00:55:08] Speaker 05:
And even if you think, well, the ORR had the line in the wrong place in its director review policy, there needs to be some guidance.

[00:55:18] Speaker 05:
And that guidance is best determined case by case.

[00:55:22] Speaker 05:
And I bring us back to Baladi, where it said there needs to be a case by case determination of the child's maturity and best interest.

[00:55:29] Speaker 05:
That just is not happening under this district court's injunction.

[00:55:32] Speaker 05:
There's no determination of that.

[00:55:33] Speaker 02:
Yeah, and in Baladi, there was a particular state program that was being reviewed by the court.

[00:55:38] Speaker 05:
Well, I mean, I understand that, and states have policies that are enacted in different ways.

[00:55:44] Speaker 05:
But here, the policy was just the director review.

[00:55:47] Speaker 05:
And that's the only policy.

[00:55:49] Speaker 05:
And if this is like a standard APA case, the district court would say,

[00:55:54] Speaker 05:
That policy is OK.

[00:55:55] Speaker 05:
That policy is invalid.

[00:55:57] Speaker 05:
There are some constraints on the due process clause and poses some constraints on the director's authority.

[00:56:04] Speaker 05:
And that's really normal stuff.

[00:56:06] Speaker 05:
But here, the district court did something very different.

[00:56:08] Speaker 05:
It said, I'm eliminating your policy.

[00:56:10] Speaker 05:
There's no other policy you can act.

[00:56:12] Speaker 05:
You are done.

[00:56:13] Speaker 05:
And that is just not what the Supreme Court tells us to do.

[00:56:16] Speaker 05:
And it's just not the proper approach given ORR's temporary custody.

[00:56:22] Speaker 05:
They're a temporary custodian.

[00:56:24] Speaker 05:
They're parents out there.

[00:56:26] Speaker 05:
They are a temporary custodian.

[00:56:28] Speaker 05:
They're charged with getting the kids to a sponsor or a parent as quickly as possible.

[00:56:32] Speaker 05:
They have a profound interest in the life at issue there, and that has to be recognized and given some weight.

[00:56:42] Speaker 05:
I've taken a lot of time.

[00:56:44] Speaker 02:
That's all right.

[00:56:44] Speaker 02:
So I think we would like to hear about the class.

[00:56:48] Speaker 05:
I can talk briefly about the class action issues.

[00:56:51] Speaker 06:
You can't be brief about this.

[00:56:53] Speaker 06:
I think those issues are the most complicated.

[00:56:55] Speaker 05:
Well, they are.

[00:56:56] Speaker 05:
Again, I'll start with commonality because we've been talking about that.

[00:57:00] Speaker 05:
I might get through it a little quicker.

[00:57:03] Speaker 05:
Every case raises its own set of facts here.

[00:57:07] Speaker 05:
And again, the point at which the due process clause, if it imposes a requirement to take part or to facilitate abortion access, it's different for each individual.

[00:57:19] Speaker 05:
And the cases in this case,

[00:57:21] Speaker 05:
kind of show that out.

[00:57:23] Speaker 05:
The four named plaintiffs in this case all had very different circumstances, different stages of pregnancy, different maturity levels.

[00:57:32] Speaker 05:
There was a case in the Fifth Circuit recently with a very young minor at issue who initially wanted an abortion and then changed her mind.

[00:57:41] Speaker 05:
I mean, every case has a different set of circumstances.

[00:57:44] Speaker 06:
I understood your argument.

[00:57:47] Speaker 06:
Maybe it's my phrasing of your argument.

[00:57:50] Speaker 06:
is the class has to be defined in accordance with an injury, a common injury.

[00:57:57] Speaker 06:
Isn't that correct?

[00:57:59] Speaker 05:
Well, there has to be a single remedy that could work for the entire class, and that is very hard.

[00:58:06] Speaker 06:
That means there has to be a common injury, right?

[00:58:08] Speaker 05:
Sure, sure.

[00:58:10] Speaker 06:
Isn't that crucial to your position?

[00:58:13] Speaker 06:
And the common injury here is individuals who wish an abortion.

[00:58:21] Speaker 06:
It cannot include people who do not wish an abortion.

[00:58:25] Speaker 05:
Well, that's another fundamental problem, both with adequacy and typicality, that the classes, every pregnant minor, the vast majority of those minors do not seek abortion services.

[00:58:38] Speaker 06:
They want to give birth.

[00:58:39] Speaker 06:
Yes, they may even be opposed to abortion.

[00:58:41] Speaker 05:
They may be opposed.

[00:58:43] Speaker 06:
But isn't it correct, when you're talking about class action and the size of the class,

[00:58:49] Speaker 06:
You define it in terms of individuals with the same injury.

[00:58:53] Speaker 05:
Yes, I think that's right.

[00:58:55] Speaker 05:
You cannot have a whole bunch of class members who suffer no injury.

[00:58:58] Speaker 05:
And that comes, that's kind of the over broad class line of cases.

[00:59:02] Speaker 05:
And here, you know, 80, 90, most of them do not suffer this injury, suffer no injury.

[00:59:10] Speaker 05:
And in fact, some of what the plaintiffs are asking for in their complaint, like silencing crisis pregnancy centers, might actually injure them because they might want that support and assistance.

[00:59:19] Speaker 02:
So that's true if you define the right and the injury as abortion.

[00:59:26] Speaker 02:
It's not true if you define the right as the right to make the choice free from government coercion.

[00:59:33] Speaker 06:
That's not the injury.

[00:59:35] Speaker 06:
At every point, that's not the injury.

[00:59:37] Speaker 06:
That's not the injury in this case.

[00:59:41] Speaker 05:
The injury is access to abortion and the court below and I think even Judge Millett said the government can provide its views however it wishes to.

[00:59:50] Speaker 05:
So I don't think that this is a case of, I mean,

[00:59:53] Speaker 05:
The plaintiffs might want it to be a case about that, but the ruling of the court and the way this got resolved is not about what information the government can provide.

[01:00:01] Speaker 02:
I guess it's just I'm not sure I mean to draw a distinction between the right and the injury because it seems like the way one conceives of the injury depends on the way one conceives of the right, which is to say if the right at stake is the right to choose without having the government dictate the choice, the injury is the inability to choose without having the government dictate the choice.

[01:00:23] Speaker 02:
And everybody in the class is injured in that respect because nobody in the class has the right, the personal autonomy right to choose without having the government dictate the choice when the government is dictating the choice, even if they would ultimately make the decision to carry the term.

[01:00:41] Speaker 06:
I see the case differently because if I'm an individual who is passionately opposed to abortion, I think

[01:00:51] Speaker 06:
giving all the people who are with me the choice to have an abortion is an offense to me.

[01:00:58] Speaker 06:
That's imposing an injury on me.

[01:01:03] Speaker 05:
I mean, if you look at the cases involving classes.

[01:01:06] Speaker 06:
I don't see any case where the injury is the option to have the abortion.

[01:01:13] Speaker 05:
I think that's absolutely right.

[01:01:14] Speaker 05:
I mean, the injury is undue burden to getting the abortion.

[01:01:20] Speaker 05:
And the only people who ever suffer that injury are those who seek an abortion.

[01:01:26] Speaker 02:
So Casey says,

[01:01:29] Speaker 02:
What a state can't do is, quote, prohibit any woman from making the ultimate decision to terminate her pregnancy before viability, close quote.

[01:01:38] Speaker 02:
And when a state says there's only one choice here, the woman's not making the ultimate decision.

[01:01:48] Speaker 02:
The state is.

[01:01:50] Speaker 05:
Your Honor, I just don't think that is the correct way to look at the class here.

[01:02:00] Speaker 02:
Can I just ask if you agree with Judge Silverman's proposition that if there are members of the class who are personally opposed to abortion, that it automatically creates an antagonism because they have an interest in preventing someone else from exercising their constitutional entitlement to terminate their pregnancy?

[01:02:24] Speaker 05:
I think it's easier than that for two reasons.

[01:02:27] Speaker 05:
The case laws on an over-broad class don't look to antagonism.

[01:02:31] Speaker 05:
That's adequacy case law.

[01:02:33] Speaker 05:
The case laws on the over-broad class look to, you've got to define the class by the people who need a remedy from the court.

[01:02:39] Speaker 05:
And it's the children who request abortion who need that remedy.

[01:02:45] Speaker 05:
I lost my train of thought.

[01:02:47] Speaker 05:
I'm sorry.

[01:02:47] Speaker 05:
But the second reason is some of plaintiff's claims are actually against the interests of that much larger group of minors.

[01:02:56] Speaker 05:
And that's basically the effort to silence crisis pregnancy centers in this process.

[01:03:01] Speaker 05:
And those minors are actually hurt if those crisis pregnancy centers are silenced.

[01:03:08] Speaker 05:
So our view is that the district court in order to actually in order to deal with the numerosity problem with the case.

[01:03:17] Speaker 05:
certified class that's much too broad.

[01:03:19] Speaker 05:
And it should have limited the class to children seeking abortion who are in OR or custody.

[01:03:25] Speaker 06:
And I'd like to also discuss briefly the movements question.

[01:03:28] Speaker 02:
Yeah.

[01:03:29] Speaker 02:
Before we move this, can I follow up on a line of questioning that you're engaged with both of us?

[01:03:35] Speaker 02:
So even with respect to overbreath of the class,

[01:03:41] Speaker 02:
If we adopt the premise that the class is over-broad because it includes women who want to carry the term, the nature of this right is that

[01:03:56] Speaker 02:
the woman is not frozen in time.

[01:03:57] Speaker 02:
It's not like you have to make a choice at time zero and then you can never change your mind, right?

[01:04:03] Speaker 05:
Well, it's very common for people to come in, exit, or enter a class.

[01:04:06] Speaker 05:
That's standard for in a class action.

[01:04:08] Speaker 02:
I'm just talking about the nature of this right itself.

[01:04:11] Speaker 02:
The right itself, just because somebody says at one particular point in time that they want to carry the term, they can then decide at a later point in time that they want to terminate the pregnancy.

[01:04:21] Speaker 05:
Yes.

[01:04:21] Speaker 05:
And that's happened in a few instances in some of the individual cases.

[01:04:26] Speaker 02:
So in some situation, in some sense, the over-breath of the class, it seems to me in some tension, your argument about the over-breath of the class seems to me in some tension with the understanding of this right, which is that it's not a right that's fixed at time zero and can never be, it's not a choice to fix at time zero and can never be the subject of a change of mind, it's something that

[01:04:52] Speaker 02:
is a choice that's constantly being made.

[01:04:54] Speaker 02:
Even if a woman decides at times zero that she wants to carry the pregnancy to term, she can decide later that she wants to terminate the pregnancy, at least without state obstacle, at least before viability.

[01:05:05] Speaker 02:
So that over-breadth problem seems somewhat in tension with that idea that the decision is a dynamic one.

[01:05:12] Speaker 05:
I just don't think that's correct.

[01:05:13] Speaker 05:
I mean, it's very common for someone to enter or leave a class based on the individual facts of a case.

[01:05:21] Speaker 05:
So I don't quite understand.

[01:05:22] Speaker 05:
I mean, the class...

[01:05:28] Speaker 05:
the courts.

[01:05:29] Speaker 02:
No, I think it just seems to me like you're assuming the answer because you're right that if the proper definition of the class is individuals who have made the decision to seek an abortion, that's the government's position.

[01:05:39] Speaker 02:
I understand that.

[01:05:40] Speaker 02:
Then you're right.

[01:05:40] Speaker 05:
I would say a little more requesting an abortion.

[01:05:42] Speaker 05:
I mean, so if there's a request made, I think that's when you define it and then maybe they would come out of the class if they change their mind or remain in the class.

[01:05:51] Speaker 05:
I think that is the sort of class

[01:05:53] Speaker 05:
that would be defined more appropriately?

[01:05:56] Speaker 06:
Let me try another hypothetical.

[01:05:57] Speaker 06:
Let's suppose you had a First Amendment case, and the question was whether people could criticize the government.

[01:06:09] Speaker 06:
Let's say there are government employees, and there was an effort to stop them from criticizing the government.

[01:06:17] Speaker 06:
And a class was proposed to include everybody

[01:06:23] Speaker 06:
all government employees because they all have a right to criticize the government even though that would include

[01:06:30] Speaker 06:
thousands of people who have no intention of criticizing the government.

[01:06:35] Speaker 06:
Isn't that analogous to the government and the plaintiff's position here?

[01:06:40] Speaker 05:
I think that's exactly right, Judge Silverman.

[01:06:42] Speaker 06:
I think the- In other words, the class has to be defined by the injury, not by the right that is asserted to support the injury.

[01:06:54] Speaker 05:
I think that's right.

[01:06:55] Speaker 05:
And it's really the cases, and they're very, I mean, it's pretty clear.

[01:06:59] Speaker 05:
You try and narrow the class to the one that suffers the injury from the policy.

[01:07:04] Speaker 05:
And here, the injury is not facilitating that abortion access.

[01:07:12] Speaker 06:
Now, what about the moteness question?

[01:07:14] Speaker 06:
I don't understand why.

[01:07:16] Speaker 06:
As I understood the arguments, this goes to the time, the transitory nature,

[01:07:22] Speaker 06:
goes for the time for the judge to certify the class, not the time to provide relief, but to certify the class, right?

[01:07:30] Speaker 03:
That's correct.

[01:07:31] Speaker 06:
And in this case, the judge sat on the certification for months.

[01:07:35] Speaker 03:
That's correct.

[01:07:35] Speaker 06:
It could have been certified in a matter of days.

[01:07:41] Speaker 06:
I don't understand why there's a transitory problem on the certification class.

[01:07:46] Speaker 06:
And therefore, I don't understand why we're talking about two plaintiffs who are no longer

[01:07:52] Speaker 06:
remotely representative of the situation.

[01:07:54] Speaker 06:
One of them has had an abortion, one of them is too old.

[01:07:58] Speaker 06:
So I don't understand this.

[01:08:00] Speaker 05:
I think that's right.

[01:08:01] Speaker 05:
And I think by sort of just acting without actual class members, it leads to the kind of ruling we get from the district court that does not look at any individual circumstances.

[01:08:13] Speaker 06:
In other words, it should be a new case, in your view.

[01:08:17] Speaker 05:
There should be a new case.

[01:08:18] Speaker 05:
I mean, we think all these cases need to be resolved.

[01:08:20] Speaker 06:
There was a new case, for instance.

[01:08:22] Speaker 06:
I don't know if the ACLU was this smart.

[01:08:26] Speaker 06:
It would be a new case.

[01:08:27] Speaker 06:
It wouldn't raise a recusal question for a potential new Supreme Court justice.

[01:08:32] Speaker 05:
Well, I think it's one thing that's noteworthy.

[01:08:35] Speaker 05:
It's very common in class actions where you have a changing membership of the class to add new class members to avoid this kind of an issue, and that didn't happen here.

[01:08:48] Speaker 05:
We really think it is relevant, and it's an important principle that district courts, when they don't have a live case before them, should not be certifying a class.

[01:08:58] Speaker 05:
And that allows the sort of decision making in a vacuum.

[01:09:02] Speaker 05:
There's no facts before the court of any injury when it made its ruling.

[01:09:05] Speaker 05:
When it made its ruling, it was basically creating a policy that really didn't address the individual circumstances.

[01:09:14] Speaker 02:
That's kind of inherently true any time you have the transitory exception that applies, right?

[01:09:18] Speaker 02:
Because that exception comes into play when the class representative's claims are moot.

[01:09:24] Speaker 05:
And that's why it's described as a narrow exception.

[01:09:27] Speaker 05:
And there are hallmarks that are applied, and none of them fit here.

[01:09:31] Speaker 05:
The length of the claim can't be ascertained at the outset.

[01:09:34] Speaker 05:
Well, here we know the length of the claim because of the policy that required district court to get involved to resolve the claim on the merits.

[01:09:43] Speaker 05:
If the court can act on the merits, it can act on the class certification.

[01:09:48] Speaker 05:
I don't understand that.

[01:09:51] Speaker 05:
Well, I mean, the test from Gerstein is the court does not have any opportunity to act on a claim before, act on class certification before the claim expires.

[01:10:04] Speaker 05:
Well, if the claim's not going to expire until the court takes action, then it has time to act on the class certification.

[01:10:10] Speaker 05:
And here, the claims did not, except in one case, the claims did not expire until the court entered TROs.

[01:10:16] Speaker 02:
You're talking about what time period you're talking about, the time that it took to certify the class or the time that it took to grant temporary relief?

[01:10:24] Speaker 05:
Because the court had time to grant temporary relief multiple times.

[01:10:28] Speaker 05:
So why wasn't that equally true in Gerstein?

[01:10:31] Speaker 05:
because Gerstein involved pretrial detention, which ends of its own accord in a very short period of time without any court involved.

[01:10:38] Speaker 02:
But a court could grant temporary relief.

[01:10:39] Speaker 02:
Why couldn't the court grant emergency relief?

[01:10:43] Speaker 05:
The court could have, but that's a different situation.

[01:10:46] Speaker 05:
If you're looking at the time period of how long it was until the court granted temporary relief,

[01:10:54] Speaker 05:
That's not the proper time period, I guess is what we're saying.

[01:10:56] Speaker 05:
You need to look at how long the claim takes to expire.

[01:10:59] Speaker 05:
And in both cases, there was enough time for the district court to act on class certification.

[01:11:04] Speaker 02:
So then you're talking about class certification, not when the court enters temporary relief.

[01:11:08] Speaker 02:
That just seems like a happenstance to me that in any case involving an inherently transitory exception, the trial court can always grant temporary relief right quick.

[01:11:17] Speaker 02:
And it just so happens that this trial court did because it thought that the government was wrong.

[01:11:21] Speaker 02:
It just seems, in its merits arguments, it seems to me odd to say that the inherently transitory exception doesn't apply because this district court acted quickly to grant temporary relief.

[01:11:31] Speaker 05:
I guess I'm trying to say that the

[01:11:33] Speaker 05:
The test that's looked at is whether the claim expires of its own accord, and that's what the courts have said, and that doesn't happen here.

[01:11:40] Speaker 06:
And they're focusing on the claim being the class certification.

[01:11:45] Speaker 05:
No.

[01:11:45] Speaker 05:
If the claim for relief expires of its own accord so that the certification can't be acted on.

[01:11:51] Speaker 05:
And here, the claim did not expire of its own accord.

[01:11:55] Speaker 05:
It expired due to court intervention.

[01:11:58] Speaker 05:
The other thing you would look at is whether the defendant is selectively mooting claims, and that is not an issue here either.

[01:12:06] Speaker 05:
The government was not selectively mooting claims to avoid class certification.

[01:12:09] Speaker 05:
So I think the way to respect Article III and the scope of judicial authority in cases of mootness is to require the class to be addressed when there's an individual claim that is live.

[01:12:24] Speaker 02:
I'm sorry, I feel like I'm still missing the core of your argument because... Well, let me give you the core of our argument, which is the essential... Uninherently transitory.

[01:12:34] Speaker 02:
Yes.

[01:12:34] Speaker 05:
The essential point there is you don't want claims to evade review.

[01:12:39] Speaker 05:
None of the claims have evaded review.

[01:12:40] Speaker 02:
But the reason they have an evaded review is because temporary relief was granted.

[01:12:44] Speaker 02:
That's your position, right?

[01:12:47] Speaker 05:
Yes, they did not.

[01:12:48] Speaker 05:
I mean, the guiding principle is you don't want government to be able to do things over and over again evading review.

[01:12:55] Speaker 05:
The issue is very important.

[01:12:57] Speaker 05:
The claims are substantial, and they don't evade review.

[01:13:00] Speaker 05:
Class certification can be addressed in the context of an actual live claim.

[01:13:04] Speaker 02:
You're saying they don't evade review because the district court granted emergency relief on a short-term basis.

[01:13:09] Speaker 02:
Yeah.

[01:13:10] Speaker 02:
That's right.

[01:13:10] Speaker 02:
I come back to this.

[01:13:12] Speaker 02:
I don't understand why that's not always a possibility in an inherently transitory situation.

[01:13:17] Speaker 05:
But if you look at all the cases, none of them say, well, if the court acted on the merits, and nonetheless, that exception applies.

[01:13:27] Speaker 05:
None of those cases, they're all claims that expired without the court having a chance to act on the merits.

[01:13:31] Speaker 02:
And that's why they evade review.

[01:13:33] Speaker 02:
Here, they don't evade review.

[01:13:35] Speaker 02:
Can I just finish, please?

[01:13:37] Speaker 02:
Can I finish what I'm saying?

[01:13:38] Speaker 02:
I'm sorry.

[01:13:40] Speaker 02:
What those cases talk about is the time until class certification.

[01:13:44] Speaker 02:
They're not talking about the time until emergency relief can be granted.

[01:13:48] Speaker 02:
And it seems to me that has to be the right way to look at it, because emergency relief can always be granted quickly.

[01:13:54] Speaker 02:
That's the nature of emergency relief.

[01:13:56] Speaker 02:
But what they're talking about is the time it would take for class certification.

[01:14:01] Speaker 06:
I think that's right.

[01:14:02] Speaker 06:
But why is there difficulty in time for class certification?

[01:14:08] Speaker 05:
Well, again, the class certification motion was pending while four claims were raised by the plaintiffs on the merits, and the court was able to decide those on the merits.

[01:14:18] Speaker 05:
If the guiding principle is, is the claim going to evade review?

[01:14:23] Speaker 06:
I don't understand why the district judge waited how many months from November to March to certify the class.

[01:14:29] Speaker 05:
It was, the motion was filed on the 18th.

[01:14:33] Speaker 05:
It wasn't fully brief for a while.

[01:14:34] Speaker 06:
That's certainly a lot of time.

[01:14:36] Speaker 05:
Yeah, the court did wait for a while to certify the class and was months after all the representative plaintiffs were out of custody.

[01:14:43] Speaker 02:
And is that how you understand the cases to work, that if it takes longer than days for a district court to certify the class, then the inherently transitory exception doesn't apply?

[01:14:52] Speaker 02:
I don't think I've understood the cases to say that the district court has two weeks

[01:14:58] Speaker 02:
And then if it takes longer than two weeks to certify the class, the inherently transitory exception then cannot apply.

[01:15:05] Speaker 05:
No, I certainly haven't said there's a specific time that applies.

[01:15:08] Speaker 05:
Again, do we not know when the claim's going to end?

[01:15:11] Speaker 05:
Here we do.

[01:15:13] Speaker 05:
Is it uncertain?

[01:15:14] Speaker 05:
No, it's not uncertain.

[01:15:15] Speaker 05:
Is the government or the defendant avoiding certification?

[01:15:19] Speaker 02:
Yeah, it certainly seems to be the key.

[01:15:20] Speaker 02:
Because if you look at Gerstein, which sort of started us down this road,

[01:15:24] Speaker 02:
What the court says in Gerstein in the relevant footnote is the Supreme Court is by no means certain that any given individual named as plaintiff would be in pre-trial custody long enough for a district judge to certify the class.

[01:15:37] Speaker 02:
It's by no means certain.

[01:15:40] Speaker 02:
The question then would be, could you also say it is by no means certain that any given individual named as plaintiff

[01:15:49] Speaker 02:
You wouldn't say would be in pretrial custody long for a district judge to certify the class, but you would say would have a live claim as to exercising the right to terminate a pregnancy long enough for a district judge to certify the class.

[01:16:03] Speaker 02:
That's the way we should look at it.

[01:16:04] Speaker 05:
I think that's the right question, and we disagree, I think, but the answer in our view is

[01:16:09] Speaker 05:
If the court can act on the merits, it can act on the class certification.

[01:16:13] Speaker 02:
And why would it be certain?

[01:16:14] Speaker 02:
Because your own argument is that sponsorship can be done quickly.

[01:16:18] Speaker 02:
If sponsorship is done quickly, then the claim is moot.

[01:16:22] Speaker 02:
Yes.

[01:16:22] Speaker 02:
Right?

[01:16:23] Speaker 02:
So if that's true, then how is it certain that any given individual who might get sponsorship quickly

[01:16:32] Speaker 02:
would have a live claim.

[01:16:33] Speaker 05:
I think that's the sort of thing that the court should have looked at, but it didn't.

[01:16:36] Speaker 05:
The court looked at the sort of very brief period before the abortion when the TRO proceedings were ongoing and the court was able to act on the merits.

[01:16:49] Speaker 05:
So I think those other sorts of issues are probably the ones that should have been looked at.

[01:16:57] Speaker 05:
I feel like I've covered about everything.

[01:16:59] Speaker 05:
And if the court doesn't have further questions, I encourage you.

[01:17:02] Speaker 02:
We've kept you up here for a while.

[01:17:03] Speaker 02:
Thank you.

[01:17:04] Speaker 02:
Thank you.

[01:17:13] Speaker 00:
May it please the court Brigida Murray for plaintiff's appellees.

[01:17:16] Speaker 00:
The legal questions in this case are straightforward and answered by clear Supreme Court precedent.

[01:17:22] Speaker 00:
As the district court properly found, the government has operated a policy of banning abortion for all unaccompanied immigrant minors while in government custody.

[01:17:34] Speaker 00:
While there has been much litigation over the years about different abortion restrictions, it is rare to see such a stark prohibition on access to abortion.

[01:17:43] Speaker 00:
This is a blanket ban on abortion for anyone while they're in government custody.

[01:17:49] Speaker 00:
This is blatantly unconstitutional under Roe v. Wade and its progeny.

[01:17:55] Speaker 00:
A few things about what the government just said.

[01:17:58] Speaker 00:
Plaintiffs do dispute that the government has any sort of statutory authority to veto a minor's abortion decision.

[01:18:05] Speaker 00:
Congress could never have given that power to the government.

[01:18:08] Speaker 00:
The Constitution does not allow that type of veto, and their policy must fall for that reason.

[01:18:15] Speaker 02:
Was that argument made anywhere in the briefing, that there's a lack of statutory authority?

[01:18:19] Speaker 00:
Your Honor, they point to the statutory authority to say that there is this idea that they can supplant the best interest that they have for the minor's decision, and we dispute that.

[01:18:32] Speaker 00:
What the statute says is that the government must consider that the best interest of a minor in a particular decision, but it does not say that the government can use that authority to veto a minor's abortion decision, and we have said that.

[01:18:47] Speaker 00:
in our briefs.

[01:18:49] Speaker 00:
This idea though that the government is considering different variables such as the minors maturity or sponsorship process is really belied by the facts in this case.

[01:19:01] Speaker 00:
And the district court found that the decision making process by the ORR director Scott Lloyd was based almost entirely on his ideological opposition to abortion.

[01:19:11] Speaker 00:
So any notion that what the government is doing is making some sort of individual case by case determination is just not supported by the record and the district court's findings of fact.

[01:19:23] Speaker 00:
The district court made a finding of fact that this is a policy of not just obstruction of abortion, but also attempted coercion, which is something that we haven't yet spoken about.

[01:19:34] Speaker 00:
Before a minor is even blocked from accessing abortion, the government makes her go through a number of hoops to try to push her into carrying her pregnancy to term by forcing her to go to a crisis pregnancy center against her will.

[01:19:48] Speaker 00:
All of those crisis pregnancy centers on the government's list of pre-approved counselors are religiously affiliated.

[01:19:56] Speaker 00:
The government makes the minor call her parents in her home country and tell her sponsor about her abortion decision and if she refuses, the government either does so or instructs the shelter to do so.

[01:20:06] Speaker 00:
Scott Lloyd himself has gone to speak with minors who are considering abortion to try to convince them to carry to term.

[01:20:14] Speaker 00:
These coercion attempts, if they fail, what the government just does is prohibits the shelter from allowing the minor to leave for the abortion altogether.

[01:20:25] Speaker 00:
This is a,

[01:20:27] Speaker 00:
blanket ban on abortion for any minor in government custody and it is blatantly unconstitutional.

[01:20:31] Speaker 06:
What do you say about the government's argument that the minor always has the option to return to her country and presumably get the abortion there?

[01:20:42] Speaker 00:
Your Honor, three points in response.

[01:20:44] Speaker 00:
One, that

[01:20:46] Speaker 00:
as the District Court recognized, this would mean that a minor has to give up her right to stay in this country to be penalized for requesting access to abortion.

[01:20:56] Speaker 00:
A minor- Why would she have a right to stay in this country?

[01:21:00] Speaker 00:
Well, Your Honor, I'm saying with respect to, she might have asylum claims.

[01:21:03] Speaker 06:
She may or may not have a right to stay in this country.

[01:21:06] Speaker 00:
She may or may not, but that is one aspect that the District Court considered in terms of giving up her ability to stay in this country merely for requesting abortion.

[01:21:15] Speaker 06:
Which may not be a right.

[01:21:17] Speaker 00:
Well, certainly the right to abortion is a right.

[01:21:19] Speaker 00:
And so the penalty that we're talking about is on the penalty on the right to abortion.

[01:21:24] Speaker 00:
And this is from something that the courts have recognized, for example, in Harris.

[01:21:29] Speaker 00:
Taking away Medicaid benefits for someone, you might not have the right to the Medicaid benefit, but you have a right to abortion.

[01:21:35] Speaker 00:
And penalizing someone by taking away Medicaid benefits

[01:21:39] Speaker 00:
by the sheer fact that someone has had an abortion would be an unconstitutional penalization.

[01:21:45] Speaker 06:
Your theory is allowing people to go back to their home country is a penalty?

[01:21:50] Speaker 00:
It's a penalty on the constitutional right to abortion to force someone to give up their asylum claims, special immigration, juvenile status, et cetera.

[01:22:00] Speaker 00:
But that's just one aspect.

[01:22:02] Speaker 00:
The other aspect is the voluntary departure process takes a long time.

[01:22:06] Speaker 00:
And that is something that the government

[01:22:08] Speaker 00:
claims says it doesn't take a long time, but there is no support for that.

[01:22:14] Speaker 00:
As a matter of law, a minor must be in removal proceedings before voluntary departure is granted.

[01:22:20] Speaker 00:
It takes a long time for those removal proceedings to even begin.

[01:22:26] Speaker 02:
I thought there was a voluntary departure

[01:22:28] Speaker 00:
There is, seems to be a discretionary voluntary departure at the behest of the attorney general.

[01:22:40] Speaker 00:
But it is unclear exactly how that works.

[01:22:44] Speaker 00:
The law says though that

[01:22:47] Speaker 00:
There has to be some sort of order issued by a judge or by the attorney general.

[01:22:53] Speaker 00:
It's out of the control of the minor when the voluntary departure can happen.

[01:22:58] Speaker 00:
And just like we saw with Jane Doe, the government was considering voluntary departure for her when she was here in September.

[01:23:04] Speaker 00:
But by the time we were here in the Court of Appeals in October, there had been no further steps for voluntary departure for her.

[01:23:11] Speaker 02:
So your understanding of the way voluntary departure works, and we can ask the government this on rebuttal,

[01:23:15] Speaker 02:
Your understanding of the way voluntary departure works is that it's not in fact a unilaterally obtainable self-help remedy on the part of someone in government custody, that it's actually at the discretion of the government?

[01:23:29] Speaker 00:
Correct.

[01:23:30] Speaker 00:
It's out of the minors' hands in terms of how quickly it can happen.

[01:23:34] Speaker 06:
not just with respect to- The government never turns it down.

[01:23:37] Speaker 06:
Does the government ever turn down a voluntary departure?

[01:23:41] Speaker 06:
Your Honor, I don't know the answer to the question to that, but I do know that- When you said it was out of our hands, that implied that there was a discretionary judgment being made by the government not to allow a voluntary departure, which struck me as pretty far-fetched.

[01:23:57] Speaker 00:
Well, there's certainly discretionary authority whether to allow it at all.

[01:24:01] Speaker 00:
And the other option is that a minor has to go before an immigration judge, and there has to be an order.

[01:24:06] Speaker 00:
And as we know, the immigration courts are backlogged.

[01:24:09] Speaker 00:
But in any event, assuming a magic wand could be waived, and there could be a voluntary departure order issued immediately, there's still the question of repatriation of the minor to her home country.

[01:24:21] Speaker 00:
And this is talked about in the immigrants rights amicus brief.

[01:24:25] Speaker 00:
time that takes the cooperation with the consulate in the minor's home country.

[01:24:30] Speaker 00:
The minor has to have certain documentation, like a passport.

[01:24:33] Speaker 00:
She has to have a flight home.

[01:24:35] Speaker 00:
And the estimate is that it would take one to two months for the minor to even return to her home country.

[01:24:42] Speaker 00:
All the while, the minor is being pushed further into her pregnancy against her will.

[01:24:46] Speaker 00:
And as the district court found, this causes irreparable harm.

[01:24:49] Speaker 06:
Suppose this could happen in one week, just hypothetically.

[01:24:55] Speaker 06:
Then what is your position?

[01:24:57] Speaker 00:
Your honor, every week of delay causes risks to the woman in terms of potential harm.

[01:25:02] Speaker 00:
As the district court found, every week of delay increases... In other words, even if this could happen in one week, your position would be the same.

[01:25:11] Speaker 00:
Yes, your honor not just with respect to the irreparable harm, but also with respect to the state interest here The government has no valid state interest in banning abortion Roe versus Wade makes that clear Planned Parenthood versus Casey makes that clear there may be some sort of

[01:25:28] Speaker 00:
waiting period, for example, that the states can impose that is attendant to the government interest of informing the woman of her free choice.

[01:25:37] Speaker 00:
But Planned Parenthood versus Casey makes clear that the government can't just hinder abortion for the sake of hindering abortion.

[01:25:43] Speaker 00:
And that's exactly what has happened here in this case.

[01:25:46] Speaker 00:
So neither voluntary departure nor the sponsorship option are viable options to get the government out of their constitutional obligation to not ban abortion.

[01:25:57] Speaker 04:
So we're gonna give you plenty of time to talk, but I wanna just, we're kinda doing this argument backwards.

[01:26:05] Speaker 04:
That's the way that the government did their argument, but I would suggest that may not be in your interest to do the argument that way.

[01:26:13] Speaker 04:
So I have some serious concerns about mootness, and I also have some serious concerns about whether the class is properly certified

[01:26:23] Speaker 04:
as all pregnant minors versus those who express a desire to terminate their pregnancy.

[01:26:32] Speaker 04:
And so rather than have those be kind of glossed over as afterthoughts, you may want to consider spending some considerable time addressing those concerns of mine.

[01:26:48] Speaker 00:
Yes, Your Honor, I'm happy to turn to both of those and I'm happy to turn back to the preliminary injunction and why the policy is unconstitutional at any point.

[01:26:58] Speaker 00:
In terms of the mootness argument, the inherently transitory exception to mootness was built for this case.

[01:27:06] Speaker 00:
This is a situation where the time when live claims are

[01:27:12] Speaker 00:
alive are unknowable.

[01:27:14] Speaker 00:
It's not just with respect to whether pregnancy is of short duration, but also the custody.

[01:27:20] Speaker 00:
One of the things that wasn't discussed was the way that Jane Rose's claim became moot is that she was released from custody

[01:27:28] Speaker 00:
by the government.

[01:27:30] Speaker 00:
And that was unknowable.

[01:27:31] Speaker 00:
It's unknowable how long a minor will stay in custody.

[01:27:34] Speaker 00:
It's unknowable how long she will be pregnant either because she will get relief from a court or she will be past the point of being able to have an abortion altogether.

[01:27:46] Speaker 00:
So the inherently transitory test is established by the Supreme Court says that when a live claim, it's not knowable when it's going to moot out.

[01:27:56] Speaker 00:
and it's not knowable, then the district court may not have time to certify a class, and that's exactly what happened here.

[01:28:08] Speaker 04:
But what about, I mean the government sees us upon language that was on page 18 of the memorandum of opinion and order that said that the proposed class likely includes a number of pregnant unaccompanied children who will remain in custody long enough for the court to rule on class certification.

[01:28:33] Speaker 04:
So the government seizes on that concession by the district court to say that this case doesn't really fall within the Supreme Court's inherently transitory line of cases.

[01:28:51] Speaker 04:
How are we to deal with that?

[01:28:52] Speaker 00:
Your Honor, that's just the first clause of that sentence in the district court's opinion.

[01:28:56] Speaker 00:
The second clause of that sentence makes it very clear that the plaintiffs have no way of knowing which of those minors may have the right to abortion that lasts longer, such that the district court would have time to certify.

[01:29:09] Speaker 00:
It's this unknowability that is the crux of the inherently transitory exception.

[01:29:14] Speaker 00:
And that's precisely what the district court recognized in the second clause of that sentence.

[01:29:19] Speaker 02:
So unknowability of which plaintiff or unknowability of the time?

[01:29:23] Speaker 00:
Unknowability of the time that any plaintiff could have a live claim long enough for the district court to rule on class certification.

[01:29:30] Speaker 02:
And what's the relevant time?

[01:29:32] Speaker 02:
Because I take it it's not just unknowability in the abstract without regard to how long a district court can reasonably be thought to have the case before it decides class certification.

[01:29:49] Speaker 00:
Well, with respect to this case, it's about how long a minor may be in custody, ORR custody.

[01:29:55] Speaker 00:
The government has admitted that the average time that a minor spends in custody is approximately 41 days, give or take.

[01:30:03] Speaker 00:
Also with respect to the unknowability of how long a minor will remain pregnant, either because she will be allowed to have an abortion because of relief granted by the district court, or she will be pushed so far into her pregnancy that she will then give birth and will no longer be pregnant.

[01:30:17] Speaker 00:
So those are the two unknowability aspects of this particular case, just like the case in the Supreme Court with Gerstein and Garrity.

[01:30:27] Speaker 00:
There was unknowability as to how long any sort of inmate or detainee would have a live claim while he or she was in prison.

[01:30:36] Speaker 00:
And that is the same exact type of situation.

[01:30:40] Speaker 06:
I think my colleague is pointing out, I think implicitly, that it can't be just unknowability.

[01:30:45] Speaker 06:
if unknowability was between one year and two years, it certainly wouldn't qualify, would it?

[01:30:52] Speaker 00:
Your Honor, it may or may not, but the Supreme Court has just talked about unknowability.

[01:30:59] Speaker 00:
They have not necessarily talked about fleeting claims.

[01:31:01] Speaker 00:
Other courts have.

[01:31:02] Speaker 00:
Other courts of appeals have talked about the short duration of time.

[01:31:05] Speaker 00:
And that is also applicable here.

[01:31:09] Speaker 00:
So if this court would prefer to focus on the short time that the claims remain live, that is certainly an issue here.

[01:31:16] Speaker 02:
It just seems like you apparently would need both, because unknowability without regard to time

[01:31:21] Speaker 02:
would mean that unknowability and perpetuity would still be fine and that seems a tough pill to swallow because there has to be some period of time within which one would expect a district court to resolve a class certification issue.

[01:31:34] Speaker 00:
That may be, although the Supreme Court in Gerstein and Guaritee only talked about unknowability, we meet both tests here if there is a subsequent test about any sort of fleeting claims.

[01:31:45] Speaker 00:
given the short period of ORR duration and also the short period of time that a minor can be pregnant.

[01:31:52] Speaker 00:
So other courts of appeals, for example, have applied the inherently transitory exception in the context of claims that were live for only three to six months, for example.

[01:32:01] Speaker 02:
What do you think about the government's argument that, as I understood it, part of their submission at least is that here there's not really an issue because the district court has been granting emergency relief on a short-term basis.

[01:32:15] Speaker 00:
Your Honor, that is well and good for the emergency relief for those individual plaintiffs, but it does nothing to prevent the government from enforcing this policy before a minor is harmed.

[01:32:25] Speaker 00:
Each of those individual plaintiffs was delayed in accessing abortion by weeks because of the government's policy.

[01:32:32] Speaker 00:
No minor should have to suffer that harm, whether it's because of the ban, but also so that the district court can have time to certify a class.

[01:32:42] Speaker 00:
then that's exactly what the district court recognized, that no one should have to risk her health and also give up her constitutional right merely to give the district court time to certify a class.

[01:32:56] Speaker 00:
That is not what is anticipated in any of the inherently transitory exception cases either.

[01:33:01] Speaker 00:
We would never say that someone should be

[01:33:03] Speaker 00:
forced to remain in government custody in prison, for example, just to give the district court enough time to certify a class.

[01:33:10] Speaker 00:
And the same is true here.

[01:33:12] Speaker 06:
What confuses me is suppose you had a class of 100 people.

[01:33:20] Speaker 06:
And is our focus to be on the representatives of the class, whether they're going to be fleeting or whether

[01:33:29] Speaker 06:
The possibility that the hundred will, some will get relief and others will come in and some will get relief and others will, but you'll always have the hundred.

[01:33:41] Speaker 00:
I think your honor.

[01:33:42] Speaker 06:
Under that hypothetical, wouldn't it be easy for the court to certify the class?

[01:33:48] Speaker 06:
What's the transit?

[01:33:50] Speaker 06:
Are we talking about the flow problem as a transitory problem?

[01:33:54] Speaker 06:
That doesn't seem to be a transitory problem to me.

[01:33:57] Speaker 00:
Well, the transitory nature of the claim is what's at issue.

[01:34:01] Speaker 00:
The fleeting nature of how long the claim is live.

[01:34:04] Speaker 06:
The individual claim.

[01:34:06] Speaker 00:
The individual claim, your honor.

[01:34:08] Speaker 00:
But also, as other courts of appeals have held, the other thing to look at.

[01:34:12] Speaker 06:
I suppose we conclude that there will always be 100 people with the claim.

[01:34:20] Speaker 06:
There will be a different 100.

[01:34:23] Speaker 06:
Would that qualify for transitory then?

[01:34:27] Speaker 00:
Yes, and in fact, all the more reason to apply the inherent transitory exception because you have a constant class of people suffering the injury.

[01:34:34] Speaker 00:
And that is exactly what is happening here.

[01:34:36] Speaker 00:
We know of, just anecdotally, we don't have any formal reporting mechanisms.

[01:34:41] Speaker 00:
At least 12 unaccompanied minors who've requested access to abortion, abortion information, or judicial bypass, or abortion itself,

[01:34:50] Speaker 00:
since the injunction was issued on March 30th.

[01:34:54] Speaker 00:
So we have a constant class of people who would be harmed absent the preliminary injunction.

[01:35:00] Speaker 02:
I thought under the cases, the existence of a constant class of people that would be harmed is usually an argument in favor of applying the inherently transitory.

[01:35:06] Speaker 00:
Yes, Your Honor.

[01:35:07] Speaker 00:
That argument against it.

[01:35:08] Speaker 00:
Correct.

[01:35:08] Speaker 00:
And then that is why I'm offering that number to show that there are constantly

[01:35:14] Speaker 00:
people in custody right now who would be harmed if the injunction was lifted and all the more reason to apply the inherently transitory exception in this case.

[01:35:23] Speaker 02:
Even though it's true that the existence of a class of individuals who are going to constantly be in place also means that in some sense you elongate

[01:35:32] Speaker 02:
If it's the right plaintiffs, you could constantly elongate the time frame to give the district court additional time within which to rule on class certification.

[01:35:42] Speaker 00:
Yes, your honor, but the cases that have applied the inherently transitory exception, that would be true for all of them.

[01:35:47] Speaker 00:
And there is no reason to do that.

[01:35:50] Speaker 00:
And in fact, this court in DL versus DC applied an exception to mootness.

[01:35:55] Speaker 00:
It wasn't the inherently transitory exception to mootness.

[01:35:58] Speaker 00:
But said that when there is a relation back of certification to the complaint as there was in the exception in that case the district court made an error in class certification Same with inherently transitory there is it's a relation back to the complaint and the court this court said in DL that there is no obligation of plaintiffs to find new class representatives when

[01:36:22] Speaker 00:
an exception to mootis applies where there is a relation back of the certification to the complaint and that is that is the same that's true here.

[01:36:30] Speaker 06:
What about the representative character of the plaintiffs in this case the lead plaintiffs.

[01:36:38] Speaker 00:
Yes your honor they're adequate representatives they had they were forced to.

[01:36:42] Speaker 06:
They no longer have an injury.

[01:36:46] Speaker 00:
They no longer have an injury.

[01:36:47] Speaker 00:
You're right, Your Honor.

[01:36:48] Speaker 00:
The mootness question is a separate question from adequacy, as this court also found in DL versus DC.

[01:36:54] Speaker 00:
Atequacy and mootness are two separate inquiries.

[01:36:58] Speaker 00:
Jane Doe and Jane Rowe are adequate class representatives.

[01:37:01] Speaker 00:
They suffered injury under the policy.

[01:37:02] Speaker 00:
They have agreed to be class representatives.

[01:37:05] Speaker 00:
And even though they're no longer in government custody, they will vigorously prosecute this case.

[01:37:13] Speaker 02:
I mean, I take it in any inherently transitory case, the representatives are no longer suffering the injury because it's moot as to them.

[01:37:22] Speaker 02:
True.

[01:37:23] Speaker 00:
Yes.

[01:37:24] Speaker 00:
Yes, absolutely.

[01:37:24] Speaker 00:
You're right, Your Honor.

[01:37:26] Speaker 00:
With respect to the other class issues that Judge Wilkins suggested, in terms of the breadth of the class, I think, Your Honor, is one of the questions.

[01:37:40] Speaker 04:
My question is,

[01:37:43] Speaker 04:
There was a finding made by the district court that ORR's policies deprive pregnant unaccompanied minors of the ability to make their own choices regarding whether to seek an abortion or to disclose pregnancy-related information.

[01:38:05] Speaker 04:
And I'm struggling to find in the record

[01:38:14] Speaker 04:
a policy that is causing injury to a pregnant minor who wishes to carry her child to turn.

[01:38:29] Speaker 00:
So your honor, a couple of things.

[01:38:32] Speaker 00:
The right to abortion is the right to decide to have an abortion and the policy does impact the ability of minors to be able to decide whether to have an abortion because one of the aspects of the policy is to withhold any neutral information about abortion.

[01:38:46] Speaker 00:
It's not as if

[01:38:49] Speaker 00:
Most minors, I think, have obtained the pregnancy test and have automatically made a determination about what they want to do with that pregnancy.

[01:38:57] Speaker 00:
If there's any sort of interest that we should recognize is that any person should have the ability to access neutral information about pregnancy options, and that is prohibited under this policy.

[01:39:10] Speaker 04:
And the other thing that is in- How is it- I need you to be very specific to tell me what policy and how it does it.

[01:39:17] Speaker 00:
So with respect to the coercion aspects that I mentioned before that had not previously been discussed.

[01:39:22] Speaker 00:
So if a minor says that she is uncertain about her pregnancy decision, is interested in discussing abortion, the government then springs into action and tries to coerce her to carry her pregnancy to term by forcing her to go to a crisis pregnancy center where she's not going to be given neutral options counseling.

[01:39:40] Speaker 04:
OK, but that's a minor who has expressed a desire or interest in abortion.

[01:39:45] Speaker 00:
not necessarily a desire, but an interest in receiving information.

[01:39:50] Speaker 00:
So it doesn't even have to be a minor who has said, I would like to have an abortion.

[01:39:54] Speaker 04:
Okay, so then why shouldn't the class be defined as limited to those who desire or express interest in information?

[01:40:04] Speaker 00:
I think because of the difficulty of the remedy here, your honor, and to put it in the context of the population that is involved in this case and who is harmed by this policy, this is the most marginalized group that we can imagine.

[01:40:19] Speaker 00:
These are young people who don't speak English, might not even aware that abortion is legal in this country, may not understand what their options are, and for them to have the affirmative

[01:40:33] Speaker 00:
obligation to have to request something that they might not know about that the government will otherwise withhold from them is not an effective remedy of this constitutional violation.

[01:40:44] Speaker 02:
I didn't think the district court granted any relief in this regard with respect to information.

[01:40:51] Speaker 00:
Well, Your Honor, they do talk about access to abortion and abortion information.

[01:40:57] Speaker 00:
I believe it's the government can obstruct or interfere with access to abortion, abortion information, judicial bypass, et cetera.

[01:41:06] Speaker 00:
So it is not the affirmative obligation on the government to provide the information, but not to prohibit them from accessing information.

[01:41:15] Speaker 00:
And the other thing I will say about the class is that the injunction also prohibits the government from telling anyone without the minor's consent about her pregnancy or her abortion decision.

[01:41:26] Speaker 00:
And that also applies class-wide.

[01:41:29] Speaker 02:
So before you go to the disclosure part of it, just in terms of abortion access,

[01:41:34] Speaker 02:
Because there is a part of the injunction that seems to be sort of the core of it, which is that the government is barred from obstructing access to abortion.

[01:41:43] Speaker 02:
With respect to that, why isn't the class over broad in that it covers individuals who have expressed no interest in exercising the right to terminate pregnancy?

[01:41:55] Speaker 00:
Your Honor, because again, if it has to be that a minor has to say a magic word in order to get relief under the policy, she may never say that magic word.

[01:42:06] Speaker 00:
And instead, if she doesn't, the government will force her, will push her into one direction.

[01:42:11] Speaker 00:
And so for an order for there to be real relief for this group of individuals,

[01:42:16] Speaker 00:
It must be that the government cannot obstruct or interfere with access to abortion or abortion information for the entire class.

[01:42:24] Speaker 04:
How does the government push her in one direction if she says nothing?

[01:42:29] Speaker 04:
What policy that you are challenging here does that?

[01:42:34] Speaker 00:
Well, Your Honor, with respect to any sort of interest in receiving neutral information, the government will withhold that, will prevent access to it.

[01:42:44] Speaker 00:
Just like we saw in the case of Jane Doe, the government blocked her from even going to the abortion clinic to even receive the state-mandated counseling.

[01:42:53] Speaker 00:
And so we see it not just with respect to abortion access, but about information about abortion that people must have in order to make informed decisions about their pregnancies.

[01:43:03] Speaker 04:
But you just said a moment ago that the government doesn't have an obligation to provide information, right?

[01:43:11] Speaker 00:
Right, your honor.

[01:43:13] Speaker 04:
And so there, the example you gave in response to my question was when the government blocked her access to go to an abortion clinic, but that was because she requested to go to an abortion clinic.

[01:43:26] Speaker 00:
Yes.

[01:43:26] Speaker 00:
Yes, Your Honor.

[01:43:27] Speaker 00:
That is correct.

[01:43:28] Speaker 00:
That is true.

[01:43:28] Speaker 04:
So get down the brass tacks.

[01:43:32] Speaker 04:
This isn't poker.

[01:43:33] Speaker 04:
I don't need to hide my hand.

[01:43:37] Speaker 04:
I have some serious problems identifying

[01:43:43] Speaker 04:
a policy that you are challenging in this lawsuit that inflicts an injury upon a minor who neither expresses an interest in or desire to terminate her pregnancy.

[01:44:02] Speaker 04:
And so I need you to help me with that because otherwise

[01:44:08] Speaker 04:
The conclusion is that there's a commonality problem and the class is too broad and we need to vacate and send it back.

[01:44:16] Speaker 00:
Your Honor, a couple things.

[01:44:17] Speaker 00:
First of all, I don't think that the district court abused its discretion by looking at numerosity in terms of all pregnant unaccompanied immigrant minors.

[01:44:27] Speaker 00:
This isn't so simple and clear in terms of a minor's decision to have an abortion in terms of at any point that she may

[01:44:37] Speaker 00:
she may change her mind, she may seek information, and the class must protect the ability of all pregnant minors to make their own decisions free from government obstruction and interference.

[01:44:50] Speaker 04:
And that should be... As an abstract matter, I understand that, but we're not suing based on abstract matters.

[01:44:57] Speaker 04:
We're suing to challenge policies that violate a statute or the Constitution.

[01:45:05] Speaker 04:
So, you know, until I understand what policy

[01:45:12] Speaker 04:
interferes with that, that's my problem, is the disconnect there.

[01:45:21] Speaker 00:
Without that broader class of all pregnant unaccompanied minors and without a preliminary injunction that covers all of them, what the government could do is that as soon as there was a valid pregnancy test, before the minor could even say anything about her pregnancy desires,

[01:45:35] Speaker 00:
They could leap into action and they could coerce the minor just like they did in these other circumstances.

[01:45:40] Speaker 00:
There needs to be protection at the outset from the moment that a minor gets a positive pregnancy test that she be allowed to make the decisions for herself.

[01:45:48] Speaker 04:
But we don't decide cases about what the government could do.

[01:45:51] Speaker 04:
We decide cases based on there is a policy, an identified policy in place that does that.

[01:46:00] Speaker 04:
And I'm asking you what that is.

[01:46:02] Speaker 00:
Well, Your Honor, the policy that we have challenged does involve these elements of coercion, both in terms of being forced to go to a crisis pregnancy center against the minor's will, have unnecessary ultrasounds against the minor's will.

[01:46:15] Speaker 06:
You say I'm against the minor's will.

[01:46:17] Speaker 06:
So by saying that, you're saying the members of the class who have an injury are those who are acting against their will.

[01:46:32] Speaker 06:
But anybody who is not acting against your will doesn't have an injury, right?

[01:46:38] Speaker 00:
Well, yes, Your Honor.

[01:46:39] Speaker 00:
In terms of this issue that the government keeps mentioning about how we are trying to silence crisis pregnancy centers, I don't understand.

[01:46:46] Speaker 06:
No, I'm just going to question.

[01:46:48] Speaker 06:
I do not understand how the class can include people who don't have an injury.

[01:46:54] Speaker 00:
Well, Your Honor, with respect to... That's the problem.

[01:46:58] Speaker 00:
With respect to the policy, we believe it does injure all pregnant unaccompanied immigrant minors to the extent that it influences their ability to decide on their own whether to carry their pregnancies to term.

[01:47:10] Speaker 02:
And assuming... In answering that, because I think we all have the same core of questions about this,

[01:47:16] Speaker 02:
It seems to me it would be beneficial to put to one side the argument that minors are being forced to go to crisis pregnancy centers.

[01:47:24] Speaker 02:
I understand that's part of your case, but that's not an aspect of the case as to which the district court ruled in your favor, right?

[01:47:30] Speaker 00:
Oh, no, Your Honor.

[01:47:31] Speaker 00:
I do believe it is.

[01:47:33] Speaker 00:
It's part of the interfering with

[01:47:35] Speaker 00:
the right to make the decision.

[01:47:39] Speaker 02:
So you understand the district court's order to borrow the government from exposing unaccompanied minors in its custody to crisis pregnancy centers?

[01:47:50] Speaker 00:
Without their consent.

[01:47:51] Speaker 00:
A minor can certainly decide that she wants to go to a crisis pregnancy center if that's where she wants to go.

[01:47:56] Speaker 00:
But with respect to the preliminary injunction, it is our understanding and our belief that that's what's happening in practice is that the government is no longer making, as a matter of course, pregnant unaccompanied immigrant minors go to a pre-approved crisis pregnancy center on the list against their will.

[01:48:13] Speaker 02:
But does your argument apply just on, if you go past that, just for purposes of argument, and you talk about access to abortion, and the government's policy under your argument is that the government doesn't allow an individual to give effect to her decision to terminate her pregnancy.

[01:48:36] Speaker 02:
If you have an individual who from the outset has said, I don't have any interest in doing that,

[01:48:41] Speaker 02:
I want to carry the pregnancy to term.

[01:48:46] Speaker 02:
And then apart from the crisis pregnancy center dimension of it, and I understand that that's part of your argument, but apart from that, with respect to that individual, how is that individual injured by the challenge policy?

[01:49:00] Speaker 00:
Well, Your Honor, the other aspect of it is forced parental notification and forced notification to the sponsor of the pregnancy and or abortion decision.

[01:49:08] Speaker 00:
So we saw not just forced notification of the abortion decision, but about the pregnancy itself.

[01:49:15] Speaker 00:
So there's also the aspect of keeping these intimate details of someone's life confidential as well.

[01:49:21] Speaker 02:
So that's another piece of it as well.

[01:49:23] Speaker 02:
That's the other piece of it.

[01:49:24] Speaker 02:
So parental notification, we can come to that in a second.

[01:49:26] Speaker 02:
But if we put to one side the information gathering part of it at the outset,

[01:49:30] Speaker 02:
and parental notification, you're not making the argument then that an individual who has expressed that she wants to carry her pregnancy to term is still injured by the lack of an option to terminate.

[01:49:44] Speaker 00:
She would not be injured, but the problem is defining the class.

[01:49:50] Speaker 00:
How then, as a practical matter, if she decides that she wants abortion information or is then from that moment that she has said that, restricted in terms of access to information that she may need to make a different decision, how is she then going to then come into the class?

[01:50:09] Speaker 00:
There are problems, I think, inherent with the relief, though, if we try to create some classes.

[01:50:16] Speaker 06:
That's a good point.

[01:50:17] Speaker 06:
Suppose we concluded the classes over abroad.

[01:50:21] Speaker 06:
we would have to remand, would we not?

[01:50:24] Speaker 00:
Yes, Your Honor.

[01:50:25] Speaker 00:
A remand to the district court for further briefing and information about how to possibly do this.

[01:50:31] Speaker 00:
And I submit that I think it would be incredibly difficult.

[01:50:33] Speaker 00:
And what you would end up doing is doing harm to these minors because I think that you would lose some of these minors.

[01:50:43] Speaker 00:
They would fall through the cracks in terms of whether they can have access to the information to make decisions about their pregnancies.

[01:50:50] Speaker 04:
Just so that we're clear, you said that there was a parental notification of pregnancy.

[01:50:59] Speaker 04:
What policy mandates that and under what circumstances?

[01:51:04] Speaker 00:
Your Honor, it was part of the policy that we challenged and the district court made a factual finding about parental notification of the abortion decision or the pregnancy.

[01:51:15] Speaker 04:
Well, again,

[01:51:19] Speaker 04:
I looked carefully at the district court's order and I thought that the parental notification of pregnancy

[01:51:35] Speaker 04:
And the finding was that that happened for those minors that expressed an interest or desire to have an abortion because the whole government rationale of this is that basically if that desire is expressed, then they need to get the parents involved.

[01:51:59] Speaker 04:
So I thought that that was my understanding of what the policy was and what the finding of the district court was.

[01:52:07] Speaker 04:
Am I mistaken?

[01:52:09] Speaker 00:
Your Honor, you're not mistaken with respect to the individual

[01:52:15] Speaker 00:
circumstances that were before the court, although I will point out, and I'm not sure if it's in the district court's decision, that with respect to Jane Doe, the forced notification was about the minor's pregnancy.

[01:52:25] Speaker 00:
And that is slightly different than the abortion itself.

[01:52:29] Speaker 00:
And the reason why the government is notifying parents in the home country and sponsors about pregnancy

[01:52:35] Speaker 00:
is so that the parents then can also exert pressure on the minor to carry their pregnancies to term, as we saw with Jane Poe, whose parents threatened to beat her if she had had the abortion.

[01:52:48] Speaker 04:
But what I'm trying to drill down on, counsel,

[01:52:52] Speaker 04:
is did you present evidence and did the district court make a finding that there was parental notification of pregnancy regardless of whether the minor expressed an interest or desire to have an abortion?

[01:53:09] Speaker 00:
Your Honor, we did not have evidence in that regard.

[01:53:11] Speaker 00:
We have not had real discovery in this case either.

[01:53:14] Speaker 04:
So we don't know that there is such a policy.

[01:53:16] Speaker 00:
with respect to a minor has not expressed any interest in abortion or abortion information or even uncertainty about her pregnancy, we don't have that in the record, Your Honor.

[01:53:27] Speaker 02:
It seemed like the district court's decision as to parental notification was somewhat underdeveloped, because as far as I could tell, there was one, really one statement about parental notification, and that's in the appendix of 249.

[01:53:40] Speaker 02:
And this district court says, as part of the restrictions, i.e.

[01:53:43] Speaker 02:
the restrictions that apply to all pregnant UCs in its custody,

[01:53:46] Speaker 02:
ORR maintains a parental notification requirement that cannot be bypassed in a veto power over the choice to terminate.

[01:53:52] Speaker 02:
Beyond that, I'm not sure there was much about the parameters of the parental notification requirement, as the district court phrased it.

[01:54:04] Speaker 02:
And in particular, the government submitted an affidavit, I think it was submitted after the district court's decision, but the government submitted an affidavit that sought to add some additional detail about the way in which it

[01:54:16] Speaker 02:
That could not have affected the district court's decision, I think, because it came into the case afterwards.

[01:54:22] Speaker 02:
But still, it exhibits, I think, the reality that it's unclear what the parameters of parental notification are against which the district court issues its decision.

[01:54:35] Speaker 00:
Aspects that are unclear given that we are here on a preliminary injunction.

[01:54:39] Speaker 00:
We haven't had full discovery But the district court did make another finding and it's a government appendix 240 citing citing evidence that Scott Lloyd's policy includes that the unaccompanied minor must obtain Consent which will necessitate options counseling with her parents plus signed notarized declaration of consent

[01:55:03] Speaker 00:
So that's also in the government's appendix at 240.

[01:55:07] Speaker 04:
That's all triggered, though, by the expression of interest or desire of terminating the pregnancy.

[01:55:15] Speaker 00:
That finding was in the context, Your Honor, of someone requesting access to abortion.

[01:55:20] Speaker 04:
Right.

[01:55:20] Speaker 04:
So my other question is with respect to crisis pregnancy centers, which was the other example that you gave.

[01:55:29] Speaker 04:
What evidence did you introduce or what finding was made by the district court that the minors were sent to crisis pregnancy centers for counseling?

[01:55:47] Speaker 04:
All pregnant minors are or as opposed to those who express an interest or desire to terminate their pregnancy.

[01:55:57] Speaker 00:
Your Honor, we do not know whether all minors who have a positive pregnancy test must go to a crisis pregnancy center under the policy that was enjoined.

[01:56:05] Speaker 00:
My reflection on that was simply about the need for a broader injunction to prevent that from happening.

[01:56:14] Speaker 04:
But, I mean, my problem is that we don't

[01:56:24] Speaker 04:
impose injunctions to keep something that might happen from happening, we impose injunctions to prevent specific government policies or practices that are unconstitutional or violate statutes.

[01:56:47] Speaker 04:
You see my problem here?

[01:56:49] Speaker 00:
I understand your honor, but the policy that we have challenged here is extreme and extraordinary.

[01:56:57] Speaker 00:
The defendants in this case basically stopped at nothing.

[01:57:02] Speaker 00:
to prevent unaccompanied minors from accessing abortion.

[01:57:05] Speaker 04:
But I could agree with you about all of that.

[01:57:10] Speaker 04:
My only point then is that it seems that those policies only affect minors who express an interest or desire to interminating their pregnancy.

[01:57:23] Speaker 04:
And if that's the case, then why shouldn't that be the class?

[01:57:28] Speaker 00:
Your Honor, for the reasons that I had stated before in terms of the need to define the class in a way that doesn't steer minors' decision one way or the other, that every decision, it's the right to decide abortion is protected, and that information that is needed to make that decision isn't restricted.

[01:57:48] Speaker 00:
It shouldn't be that the onus is on the minor to affirmatively say something.

[01:57:52] Speaker 04:
But what policy that is at issue in this case?

[01:57:55] Speaker 04:
Is steering the decision of a pregnant minor who has never said anything one way or the other about what her intentions are with respect to her pregnancy?

[01:58:09] Speaker 00:
Well, Your Honor, with respect to withholding information, withholding access to information, that would affect any minor, even if she has said nothing about her pregnancy intention.

[01:58:18] Speaker 00:
If the government is going to prohibit access to neutral information for all pregnant minors, regardless of whether she says nothing at all, then that would injure that minor for the ability to have that information to make a decision.

[01:58:33] Speaker 04:
So there is a policy that prohibits access to neutral information?

[01:58:39] Speaker 00:
Yes, Your Honor.

[01:58:41] Speaker 04:
And what policy is that?

[01:58:43] Speaker 00:
That's the policy that we have challenged here.

[01:58:46] Speaker 00:
With respect to access to abortion information, the government has prohibited that.

[01:58:52] Speaker 00:
That is part of the policy.

[01:58:54] Speaker 00:
It's exactly what the government has done.

[01:58:58] Speaker 04:
And so what is your best case for that being unconstitutional?

[01:59:06] Speaker 00:
to limit access to information, Your Honor, being able to decide without government interference whether to continue a pregnancy is the hallmark of Planned Parenthood versus Casey and Roe versus Wade.

[01:59:21] Speaker 00:
This is the government saying that someone is prohibited from obtaining information to make this decision that they are constitutionally entitled to make and the government is prohibiting that information and therefore influencing that decision.

[01:59:36] Speaker 04:
And what specific information are they prohibiting?

[01:59:39] Speaker 04:
Because you conceded earlier that they don't have an obligation to provide information.

[01:59:48] Speaker 04:
Right?

[01:59:50] Speaker 00:
Yes, Your Honor.

[01:59:51] Speaker 00:
It's with respect to access to information, neutral options counseling by a qualified provider that the government has prohibited access to, in this case under the policy.

[02:00:03] Speaker 06:
Do I understand you to say that Roe v. Wade and Casey prohibit the government from even trying to influence the decision?

[02:00:13] Speaker 00:
That's what you said.

[02:00:15] Speaker 00:
Your Honor, I said that the government

[02:00:18] Speaker 00:
One of the hallmarks of Planned Parenthood versus Casey is the ability to make a decision without government obstruction.

[02:00:25] Speaker 06:
Without a burden.

[02:00:26] Speaker 00:
Yes.

[02:00:26] Speaker 06:
But that's not the same thing as saying the government can't try to influence the decision.

[02:00:31] Speaker 00:
Your Honor, the government, for example, in the context of the waiting period cases, the waiting period that Planned Parenthood versus Casey upheld,

[02:00:39] Speaker 00:
The court said in that case that the government can inform the woman of her free choice, but cannot hinder it.

[02:00:46] Speaker 00:
So it's almost the converse.

[02:00:47] Speaker 06:
Hinder and influence are not the same thing.

[02:00:51] Speaker 00:
Well, Your Honor, in this circumstance, I would say that it is in terms of hindering the decision to make.

[02:00:58] Speaker 06:
That would be quite an expansion of the constitutional right at stake.

[02:01:05] Speaker 00:
Your Honor, I don't think it would be an expansion if the government had a policy, just a restriction that existed to people in the free world that said that they would be prohibited from accessing neutral information.

[02:01:18] Speaker 00:
That would be blatantly about abortion.

[02:01:20] Speaker 00:
That would be blatantly unconstitutional.

[02:01:22] Speaker 06:
Your point was broader.

[02:01:23] Speaker 06:
You said even government efforts to influence a decision would be unconstitutional.

[02:01:29] Speaker 06:
if it was a government effort to influence a decision to carry the term.

[02:01:34] Speaker 00:
Well, the government can certainly inform the woman of her free choice.

[02:01:37] Speaker 00:
They can inform.

[02:01:39] Speaker 00:
What they cannot do is what they've done here, which is... They cannot impose a burden.

[02:01:44] Speaker 06:
They cannot impose a burden... But you're not really saying the government can't try to influence at all, are you?

[02:01:50] Speaker 00:
I don't think that they can influence with improper means as they have done here.

[02:01:58] Speaker 00:
Well, with respect to what has been upheld in the past, if the court considers

[02:02:04] Speaker 00:
the information that is imparted by Pennsylvania in the context of the 24-hour waiting period influence, that's either influence or informed depending on how you look at it, that has been upheld as constitutional.

[02:02:16] Speaker 00:
But what the government cannot do is what they have tried to do here, which is these various coercion attempts to try to force a minor to carry her pregnancy to term.

[02:02:26] Speaker 00:
That is impermissible.

[02:02:27] Speaker 00:
That is crossing the line into forcing a minor to

[02:02:33] Speaker 00:
give up her right to an abortion, and that is impermissible.

[02:02:40] Speaker 00:
Forcing her to go to Crisis Pregnancy Center, forcing her to have religiously affiliated counseling there.

[02:02:45] Speaker 00:
The district court didn't reach this question, but we also have an Establishment Clause claim there with respect to the government's policy that forces someone to go to religious counseling before she's allowed to obtain an abortion.

[02:02:57] Speaker 00:
There are other claims that the district court did not reach with respect to the coercion, but all of it is about the government's obstruction and interference.

[02:03:05] Speaker 04:
All of those things, again, my reading of the district court's opinion and the record, the evidence that was introduced by the emails and the policies, said all of those things were triggered once the minor expressed an interest or a desire to terminate her pregnancy.

[02:03:26] Speaker 00:
That is the evidence that we have now in the record your honor, but looking at the Real life situation of these young people the moment they get a pregnancy test They may not know What decision to make and if the government is going to withhold?

[02:03:43] Speaker 00:
Information that will affect their decision about whether to carry their pregnancy to term or have an abortion so so

[02:03:54] Speaker 04:
The government withholding information is a violation of the due process clause.

[02:04:02] Speaker 00:
The government's blocking of access to information that would affect a minor's ability to make the decision, the right that she has, the right to decide whether to carry a pregnancy to term, that would be a substantive due process violation.

[02:04:20] Speaker 00:
That is the argument that we have made.

[02:04:23] Speaker 00:
And so when the district court.

[02:04:25] Speaker 04:
And your best authority for that proposition is what case or cases?

[02:04:34] Speaker 00:
Your Honor, I would say Planned Parenthood versus Casey is the primary case with respect to the right being defined as the right to be able to choose or decide whether to have an abortion without government obstruction

[02:04:47] Speaker 00:
It is the right to decide.

[02:04:50] Speaker 00:
It is not necessarily always the right to, it is the right to decide that's being influenced here.

[02:04:55] Speaker 00:
So that is the crux of the question and the case.

[02:05:03] Speaker 04:
All right.

[02:05:03] Speaker 04:
I don't wanna dominate this, so folks wanna move on to other issues.

[02:05:08] Speaker 00:
Happy to turn back to the merits or any other questions?

[02:05:11] Speaker 00:
No, no further questions?

[02:05:14] Speaker 00:
Thank you.

[02:05:20] Speaker 05:
I appreciate the short time for rebuttal.

[02:05:22] Speaker 05:
I don't want to repeat anything, but I'll just raise a few quick points on some of the other side's argument.

[02:05:27] Speaker 05:
On mootness, I think it's important to understand when the plaintiffs are talking about the exception to the mootness doctrine, they're actually speaking to the narrower class.

[02:05:38] Speaker 05:
They're talking about the children who want an abortion and where things move quickly.

[02:05:43] Speaker 05:
But they actually ask for certification of a class of all pregnant minors.

[02:05:47] Speaker 05:
And as, you know, we talked about the issues with that, we've tried to address mootness with respect to the smaller class, but I think this underscores the over breadth of the class that when they talk about mootness, they're talking about the narrower group who are pregnant and seeking abortion and where things move much more quickly than where the, with all pregnant minors where the district court said itself that it could decide class certification on that timeframe.

[02:06:10] Speaker 06:
I see that point, but where are you on the mootness?

[02:06:12] Speaker 05:
Where are we?

[02:06:16] Speaker 06:
Forget the size of the classroom.

[02:06:18] Speaker 06:
What about the movement?

[02:06:20] Speaker 05:
Well, I mean, we think the court should have waited for a live claim to address class certification, given that the claims have been... Why is this not transitory?

[02:06:29] Speaker 05:
Well, with the broader class, the district court itself said it was a transitory.

[02:06:34] Speaker 05:
If we assume the class is over broad and should have looked at a narrower class of pregnant minors seeking abortion services, I don't want to go over the points again we discussed before, but we think the essential points are

[02:06:46] Speaker 05:
that there was time for the district court to act on the merits.

[02:06:51] Speaker 05:
The claim was going to be live until the district court acted on the merits and the district court could act.

[02:06:55] Speaker 06:
I thought the question was time to act on the certification.

[02:06:58] Speaker 06:
That was the problem.

[02:07:01] Speaker 06:
Am I misunderstanding this?

[02:07:03] Speaker 05:
No, that's right.

[02:07:04] Speaker 05:
You're right, Your Honor.

[02:07:06] Speaker 05:
There's time to act on the certification because the district court had time to act on the merits.

[02:07:11] Speaker 05:
And the basic inquiry is, is this going to evade review?

[02:07:14] Speaker 05:
These claims are not going to evade review.

[02:07:16] Speaker 05:
These are important individual claims.

[02:07:18] Speaker 05:
Another factor courts have looked at is, well, are the claims small?

[02:07:22] Speaker 05:
One of the cases plaintiffs cite have 60,000 small claims that are going to be cycling through.

[02:07:26] Speaker 05:
Here, these are important individual claims, and they will not evade review.

[02:07:31] Speaker 05:
And I want to point out, they cite the DL decision of this court.

[02:07:35] Speaker 05:
That case, the class was certified before the claims became moot.

[02:07:39] Speaker 05:
And then there was a lot of fight over the scope of the class.

[02:07:41] Speaker 05:
That's just not on point.

[02:07:44] Speaker 04:
I want to talk briefly about- On that issue, my understanding is that the class certification motion wasn't even fully briefed until November 27th.

[02:07:55] Speaker 04:
I think that's right.

[02:07:55] Speaker 04:
It was filed October- So if that's the case,

[02:07:58] Speaker 04:
Didn't, like, all of these individual cases of these four individual plaintiffs, didn't the last of them become moot by about mid-January?

[02:08:13] Speaker 04:
Weren't they all moot by then?

[02:08:14] Speaker 04:
Yes.

[02:08:14] Speaker 05:
I mean, it depends on where you think about the case becoming moot, but the last representative plaintiff was out of OR custody entirely in January.

[02:08:26] Speaker 05:
I think that's important.

[02:08:27] Speaker 04:
So the district court then had basically, you know, six weeks or so from the time that the motion was fully briefed till the last class representative's claim became moot, right?

[02:08:43] Speaker 05:
I think we'd say the last

[02:08:45] Speaker 05:
claim became moot in mid, in late December when Ms.

[02:08:50] Speaker 05:
Rowe left ORR custody because she wasn't actually a minor.

[02:08:55] Speaker 04:
So the district court should have decided that motion within a month, you know, not taken any time off for holidays or Thanksgiving or dealt with any of the other pressing matters that the district court has.

[02:09:09] Speaker 04:
And because it didn't, that was unreasonable and we shouldn't find this to be inherently transitory.

[02:09:17] Speaker 04:
That's the way we should look at this.

[02:09:19] Speaker 05:
I'm not casting any blame on the district court in the time frame.

[02:09:22] Speaker 05:
I'm just saying for Article 3 purposes, when it's possible and you're not going to lose the chance to address the actual claims, that's not going to .

[02:09:32] Speaker 05:
.

[02:09:32] Speaker 05:
.

[02:09:32] Speaker 05:
and that's the case here, the court should act on the class certification when there's a live claim.

[02:09:38] Speaker 04:
I'm not saying that you're casting any blame, but I mean we have to put some sort of a reasonableness test on this, right?

[02:09:45] Speaker 04:
So if the district court doesn't act on the motion within four weeks, then that's too much time and we should find it's not transitory.

[02:10:02] Speaker 05:
Yes, we think for a variety of reasons that are particular to this case, including the significance of the claims, the fact that they're not going to avoid review, and the fact that these are really fact-based.

[02:10:15] Speaker 05:
Acting on class certification in a vacuum, that's why we have an over-broad class.

[02:10:19] Speaker 05:
That's why all of these factors that we think are really critical didn't really get engaged on by the courts.

[02:10:27] Speaker 05:
When you look at the cases individually and you have a live claim, these are the sort of things the court is faced with.

[02:10:32] Speaker 05:
When just faced with this sort of abstract dispute, can ORR have anything to do with abortion decisions, then we get an order that sort of looks more like a legislative act than like an order addressing an actual dispute before the court.

[02:10:48] Speaker 05:
I want to just mention the crisis pregnancy center issue briefly.

[02:10:54] Speaker 05:
Plaintiffs asked for an order barring access to crisis pregnancy centers, and the district court rejected that, and we don't view that as on appeal.

[02:11:04] Speaker 02:
And we want to note that as for access to neutral or information from other, there's... On crisis credit system, but what about your colleague's point that the injunction of its own force prevents requiring

[02:11:20] Speaker 02:
somebody to go to a crisis pregnancy center over their lack of consent to do that.

[02:11:26] Speaker 05:
We don't agree with that interpretation of the order.

[02:11:28] Speaker 05:
And again, it's important to know they actually asked for an injunction to directly address that, and the district court didn't give it to them.

[02:11:36] Speaker 02:
I thought the representation that was made was that under the district court's injunction, the government, in fact, is not doing that anymore.

[02:11:40] Speaker 02:
Is that not true?

[02:11:42] Speaker 05:
You know, I'd have to check on that, because I don't know for sure, because I didn't really think this was even an issue in this appeal.

[02:11:47] Speaker 05:
But we have a footnote in our reply brief, I think, that addresses the crisis pregnancy center issue.

[02:11:52] Speaker 05:
And then I want to talk about their discussion about the ORR as preventing access to neutral information.

[02:11:59] Speaker 05:
evidence of that in the district court, and the district court really didn't touch on that issue, so I'm not sure that it's fair to be kind of talking about that here, and one thing that's very clear is every minor in ORR custody has access to pro-bar or pro-bono counsel, like there's a hotline in many facilities, but they are freely able to reach out to counsel, so it's not like there's not an avenue to communicate there.

[02:12:23] Speaker 05:
The last thing I wanted to address very briefly, they talked about that ORR would be providing notice to parents even when the children's best interest doesn't call for it, and they cite an email at Government Appendix 240.

[02:12:41] Speaker 05:
The government's policy, which was in the Swallow declaration, it's in the record, was that if it would endanger the child's interests or well-being, they will not notify the parents.

[02:12:50] Speaker 05:
And that's frankly, you know, something I think fits comfortably within the Supreme Court's jurisprudence about notice.

[02:12:56] Speaker 02:
With what happened with Poe, is that in derogation of the policy that's outlined in that declaration, or was that an example of its being consistent with it?

[02:13:08] Speaker 05:
The facts in Poe were very poorly developed.

[02:13:11] Speaker 05:
Poe's declaration does not assert that she was forced to notify parents or that there was a notification against her best interest.

[02:13:19] Speaker 05:
That actually comes from statements in briefs, so I just don't think the facts in Poe's case are well enough developed to make a judgment on that, and the district court

[02:13:26] Speaker 05:
I don't believe made findings on that.

[02:13:28] Speaker 02:
The district court didn't have the small log declaration when it made its decision, right?

[02:13:32] Speaker 02:
That was post decision?

[02:13:34] Speaker 05:
That's definitely possible.

[02:13:35] Speaker 05:
I don't remember when that got filed.

[02:13:38] Speaker 05:
I also want to note they cite this email at GAX 240 about getting written consent from the parents.

[02:13:43] Speaker 05:
That actually reflects the Ms.

[02:13:46] Speaker 05:
Doe's case in a state with a judicial bypass regime and just reflects the 2008 policy regarding judicial bypass regime.

[02:13:56] Speaker 05:
So I don't think that email is evidence of a policy that there would be notice or consent required.

[02:14:03] Speaker 02:
Before you sit down, can I ask you one last question, which is on the merits.

[02:14:07] Speaker 02:
So with voluntary departure,

[02:14:09] Speaker 02:
Is it true that with voluntary departure, not the voluntary departure that comes up in the context of removal proceeding, but the voluntary departure that, as I understand it, is an option that's available beforehand, that that's at the government's discretion?

[02:14:22] Speaker 02:
Yes.

[02:14:23] Speaker 02:
So it's not the case that an unaccompanied minor can just

[02:14:28] Speaker 02:
unilaterally decide, I'm ready to go back to the country from which I came, let me go back.

[02:14:33] Speaker 05:
I mean, there is no reason for that discretion not to be exercised.

[02:14:36] Speaker 05:
So I think they would have to show some sort of problem with that process.

[02:14:41] Speaker 05:
And there's just no problem.

[02:14:43] Speaker 05:
Keep in mind, DHS is not a party here.

[02:14:45] Speaker 05:
But their mission is, if someone's a removable alien, to remove them.

[02:14:49] Speaker 05:
Their mission doesn't go beyond that.

[02:14:50] Speaker 05:
And except in some criminal cases, but I don't think we're talking about.

[02:14:56] Speaker 02:
So that's the answer in terms of authority, that the government does have the authority not to grant it, but your position is hard to imagine scenarios in which the government would exercise that authority.

[02:15:07] Speaker 02:
In terms of timing, is it also true that it takes some time?

[02:15:10] Speaker 05:
I think there's three types of voluntary departure, and two of them take very little time.

[02:15:15] Speaker 05:
The first is before proceedings have been formally started in the immigration courts there.

[02:15:20] Speaker 05:
It's just that DHS can just agree to not pursue the proceedings.

[02:15:25] Speaker 05:
The alien agrees to remove, it can move very quickly.

[02:15:27] Speaker 05:
I don't know how long the consular processing takes.

[02:15:31] Speaker 05:
My understanding is in all these processes, when there's an emergent situation, it moves very fast.

[02:15:38] Speaker 05:
So, you know, looking at kind of the run of the mill case to decide how long it takes is not very indicative.

[02:15:43] Speaker 05:
And certainly if there were some, if voluntary departure were a key part of

[02:15:49] Speaker 05:
of this issue legally, then it could move very fast.

[02:15:53] Speaker 05:
The second type is if an immigration proceeding has been commenced but has not been a removal order, there you can have a stipulated departure.

[02:16:01] Speaker 05:
Again, that should move very quickly.

[02:16:03] Speaker 05:
I don't know that the immigration judge needs to take any action.

[02:16:06] Speaker 05:
It's just the party stipulating.

[02:16:08] Speaker 05:
The final kind is after a removal order, that's the one that's slow.

[02:16:11] Speaker 05:
But that's really not an issue in these cases.

[02:16:15] Speaker 02:
If there are no further questions, thank you very much.