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ACLU's legal fight to make Uncle Sam help with abortions

011218 Cleveland Blog Post photo
The ACLU on Thursday added a fourth plaintiff to the Garza v. Hargan lawsuit, which challenges the constitutionality of the Office of Refugee Resettlement's refusal to facilitate abortions for the girls in their care. Here is what is going on. (AP Photo/J. Scott Applewhite)

On Thursday, the American Civil Liberties Union filed an emergency motion demanding that the government facilitate a late-term abortion for “Jane Moe.”

Moe, who is purportedly 17, is now the fourth plaintiff the ACLU has added to the Garza v. Hargan lawsuit, which challenges the constitutionality of the Office of Refugee Resettlement’s refusal to facilitate abortions for the girls in their care. The presiding judge in the Garza case, Obama-appointee Judge Tanya S. Chutkan, previously held that minors illegally present in the U.S., and detained by the ORR, have a constitutional right to an abortion. The government appealed Chutkan’s original ruling to the D.C. Circuit, and in a split-decision with a three-judge dissent, the federal appellate court upheld Chutkan’s preliminary ruling in favor of the Jane Doe plaintiff.

The government intended to appeal that ruling to the Supreme Court, but before it had the chance to do so, the ACLU rushed Doe to the abortionist — even though the ACLU had told the government Doe would not be able to obtain an abortion for another day and had agreed to keep the government informed of the timing of the procedure. The government later filed a petition with the Supreme Court, asking the justices to vacate the D.C. Circuit decision because of the ACLU’s duplicity. The Supreme Court meets today to discuss that petition in conference.

Until the Supreme Court rules, though, the D.C. Circuit precedent controls. Thus, even though the district court gave the government until 5:00 p.m. today to respond to ACLU’s motion for an emergency temporary restraining order, Judge Chutkan’s decision seems a foregone conclusion — a directive to facilitate the abortion of Moe’s unborn baby. (Judge Chutkan previously entered similar orders in the case of the other two plaintiffs, Jane Roe and Jane Poe.)

What is unclear, however — and potentially more significant — is how Judge Chutkan will handle the ACLU’s request for class certification. When the ACLU originally filed the Garza case on behalf of Jane Doe, it sought to make the case a class-action lawsuit. However, following Doe’s abortion, the ACLU lacked a plaintiff to represent the class. Roe and Poe were then added, but before the district court ruled on the certification request, they too both aborted their unborn babies. With the addition of Jane Moe, the ACLU is now seeking “provisional class certification,” to allow Moe to serve as a class representative before she terminates her pregnancy. Once a class is certified, it will become irrelevant if circumstances change such that the class representative no longer has a live claim. Thus, the ACLU is pushing for a quick decision on its motion to certify the class.

In seeking to certify a class action, the ACLU makes a significant — and appalling — request: The ACLU petitions the federal court to define the class “as all pregnant unaccompanied immigrant minors who are or will be in the legal custody of the federal government.” Let that sink in: The ACLU, which represents individual girls who want abortions, including two seeking abortion at or near viability, aspires to create an attorney-client relationship with all alien minors who are pregnant, even though most of the girls do not want an abortion.

The government’s statistics illustrate the absurdity of the ACLU’s request: In fiscal year 2017, there were 420 pregnant minors in ORR custody and only 18 requested an abortion. Of those 18, 11 obtained abortions without court intervention, 5 changed their minds, and 2 were released from custody to sponsors. Yet, if the ACLU has its way, the court would declare it the lawyer for all 420 girls.

So, what’s the ACLU up to? One of two things — neither are good. Either the ACLU wants to troll among the pregnant girls for additional unborn babies to abort, or the ACLU wants to create a class-action lawsuit where one is not appropriate. Under federal rules of civil procedure, a class action lawsuit is only appropriate if the plaintiffs satisfy the “numerosity rule.” And “while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.”

With only 18 girls (or 11, if you subtract those whose abortion cases became moot), a class action lawsuit is not appropriate.

That said, given Judge Chutkan’s record to date, I fully expect her to certify the class, as requested by the ACLU, with a ruling coming down the same day she grants Moe’s motion for a temporary restraining order, likely Sunday evening or Monday morning. That will tee-up a two-part appeal for the D.C. Circuit — and eventually the U.S. Supreme Court.

Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.

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