In three recent posts, I've sharply criticized briefs filed past times the Department of Justice--and past times the Solicitor General, inward particular--in the diverse iterations of the Hargan v. Garza litigation, involving the HHS Office for Refugee Resettlement's novel practise of preventing minors inward its effective custody from obtaining legal abortions. (I summarize many of those DOJ failings inward a footnote below.*)
Over the weekend, I was listening i time once again to the oral argument before the D.C. Circuit dorsum on Oct 20th, in addition to it occurred to me that 2 farther problematic DOJ arguments are also worth flagging.
1. "There's No Undue Burden Because She Can Simply Leave the United States."
The source is i I mentioned briefly inward my initial post: In each of its briefs over the cast of the past times x weeks or so, DOJ has argued that ORR's custody of minors does not, as a affair of law, impose an "undue burden," in addition to thence raises no constitutional problem, because an unaccompanied immigrant tyke may exactly seek "voluntary departure," i.e., she may enquire to provide to her domicile country, inward which illustration ORR would no longer locomote standing inward the vogue betwixt her in addition to an abortion clinic. In the Jane Doe illustration that was the dependent patch of the Oct oral argument, the authorities insisted that this was the illustration fifty-fifty where, every bit there, abortion was illegal inward the minor's county of origin (see I explained earlier), tried to indicate to DOJ that it should abandon its "leaving the province is an option" declaration (p. 75 of the more recent posts, DOJ's top dog declaration for why Judge Chutkan's injunctions are unlawful--namely, that they would demand ORR to "affirmatively facilitate" abortion, something that the SG asserts eighteen times inward the cast of 21 pages inward his near recent filing alongside the Supreme Court--border on the frivolous.
The Department has also exploited, in addition to failed to disclaim, the of import concession that Judge Kavanaugh, in his dissenting sentiment on Oct 24, understood the authorities to convey made: "The Government has . . . expressly assumed, . . . presumably based on its reading of Supreme Court precedent, that the Government lacks potency to block [a tyke inward its custody] from obtaining an abortion.” As nosotros instantly know, Judge Kavanaugh's agreement was non correct: ORR asserts that it does indeed have the authority, which it has exercised, to block such a tyke from obtaining an abortion, fifty-fifty when the pregnancy is the outcome of a rape, when the Director unilaterally decides (as he presumably would inward every case) that the abortion would non locomote inward the immature woman's best interests, no affair what the adult woman herself decides (indeed, fifty-fifty when she expresses a wishing to boot the bucket rather than bear the pregnancy to term). And DOJ has failed to engage alongside the enquiry of whether the ORR Director has whatever statutory potency to foreclose minors inward his accuse from obtaining abortions that are legal nether province police line (answer: he has no such authority, in addition to his novel policy is genuinely inconsistent alongside Congress's statutes in addition to ORR's ain directives to shelters).
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