## Facts

- Unaccompanied alien children (UACs) are minors in the United States without lawful status and without a parent or guardian in the country able to care for them.
- The Office of Refugee Resettlement (ORR), within the Department of Health and Human Services (HHS), is responsible for UAC care and placement, typically through federally funded shelters.
- In 2017, ORR adopted directives requiring shelters to obtain ORR Director approval before taking any action to facilitate an abortion.
- The ORR Director categorically denied abortion requests presented to him, including requests involving pregnancies resulting from rape.
- J.D., a pregnant UAC in ORR custody whose pregnancy resulted from rape, sought a pre-viability abortion, secured private funding, arranged transportation, and complied with applicable state-law requirements.
- ORR refused to authorize J.D.’s release from the shelter for the procedure; J.D. obtained an abortion only after court intervention.
- Plaintiffs pursued a class-wide challenge to ORR’s abortion policy on behalf of pregnant UACs in ORR custody.

## Issues

1. Whether the controversy was moot because named plaintiffs obtained abortions or left ORR custody.
2. Whether the district court abused its discretion by certifying a class of pregnant UACs in federal custody.
3. Whether ORR’s policy effectively barring access to pre-viability abortions likely violated class members’ constitutional rights.
4. Whether the preliminary injunction’s restriction on disclosure of a minor’s pregnancy or abortion decision to parents, guardians, or others (without the minor’s consent) was proper.

## Decision

- The court held the case was not moot.
- The court affirmed the class certification as within the district court’s discretion.
- The court affirmed the preliminary injunction to the extent it barred the government’s blanket denial of access to pre-viability abortion for class members.
- The court vacated and remanded the portion of the injunction prohibiting disclosure of minors’ pregnancy or abortion decisions, requiring further explanation for appellate review.

## Legal Principles

- Under binding Supreme Court precedent, a person has a constitutional right to terminate a pregnancy before viability, and government action may not impose an undue burden on that decision.
- Government custody does not extinguish constitutional rights; when the government affirmatively blocks access to a pre-viability abortion through a categorical policy, it likely imposes an unconstitutional obstacle.
- Class-wide injunctive relief may be appropriate where a uniform federal policy presents common legal questions affecting all class members.
- Appellate review of injunctive provisions requires an adequate explanation and record; when the basis for a confidentiality/non-disclosure restriction is insufficiently developed, remand for clarification is appropriate.

## Conclusion

The D.C. Circuit permitted the class action to proceed, upheld an injunction stopping ORR from enforcing a categorical policy that prevented pregnant UACs in federal custody from obtaining pre-viability abortions, and sent back for further explanation the injunction’s separate limits on disclosure of pregnancy and abortion decisions to parents or others.


J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019)