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Thursday, September 27, 2018

Arguing about the right issue

Bloomberg reports on oral argument in Hargan v. Garza, the challenge to HHS policy surrounding pregnant unaccompanied immigrant teens seeking abortions. (Marty Lederman analyzes the arguments). The district court certified a class of all pregnant immigrant teens in HHS detention, then issued a class-wide injunction. According to the report, the plaintiffs' attorney received some pushback on the scope of that class, because it includes pregnant teens who are not seeking abortions (counsel responded that the issue also was access to abortion counseling).

The point is that the plaintiffs in this action followed the right procedures--define and redefine the class, then have the injunction match the class. Universal injunctions in individual cases allow plaintiffs to skip that step--no one would take on the difficult work of defining and certifying a class if the court is willing to leap to an injunction that protects the universe based on a complaint by one person.

Posted by Howard Wasserman on September 27, 2018 at 08:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Just clarification to my first argument down there :

If they can and should leave the US , then , not only contradicts the notion of best interest of the child , but : that it is causing undue burden they admit . That much, that according to them , they should or can leave .

Posted by: El roam | Sep 27, 2018 1:04:44 PM

Interesting and important . The respectable author of the related post , poses good counter arguments concerning the issue of " undue burden". But he has missed the main one :

And it is , that one can't claim that he seeks the best child interest on one hand , on the other , urging or suggesting that they can leave the US.

For, if they can leave the US , that is to say , that they admit both :

That avoiding abortion, is not the best interest of child , and , they are enough mature , to take such critical decision . So , one can't finally , " capture both shots , on both spots " .

And , the respectable author of the related article , is wrong to argue that :

" Nor has Congress enacted any statute that purports to displace or supplement the requirements of the governing state laws in the various states in which the ORR minors are held: Congress has, unsurprisingly, left questions of parental and other custodial consent to be determining according to the laws of the various states, which has always been the default."

And that is why according to him , there is a lacuna or void here , which leaves an unclear legal situation here . For , that is why a constitution exists . Filling the void with constitutional principles , and that is how a case can be cut even That is why courts exist. Absent of clearly established law , to also fill the void , and typically with constitutional principles.

And indeed , in the district court ( Rochelle Garza V. Eric D. Hargan ) I qoute :

it is beyond dispute that the Constitution responds to “the urgent claims of the woman to retain the ultimate control over her destiny and her body” with at least one unequivocal constitutional command: that the government “may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 869, 879. This basic proscription remains the law of the land and controls the outcome in this case.

And :

The record before the court uniformly supports the conclusion that ORR policies and practices violate the standard and principles announced in Casey and reaffirmed in Whole Woman’s Health. The record reveals that ORR effectively retains an absolute veto over the reproductive decision of any young woman in its custody .....

As such :

Plaintiffs’ have made a strong showing of likelihood of success on the merits.

End of quotation :

So , even if it is preliminary injunction , what's on merits , even later , counts . As hell counts .It must be claimed , that it is guiding ( even if not totally binding ) down the road all parties concerned .


P.S : The injunction , doesn't bar women seeking pro life so called , but those similiraly situated , seeking abortion , and denied . So , it wouldn't matter , whether we deal with one party or individual , or class action actually .

Posted by: El roam | Sep 27, 2018 10:56:20 AM

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