Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 1 of 19

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROCHELLE GARZA, as guardian ad litem to
unaccompanied minor J.D., on behalf of
herself and others similarly situated; JANE
ROE and JANE MOE on behalf of
themselves and others similarly situated, and
JANE POE,
c/o ACLU
125 Broad Street, 18th Fl.
New York, NY 10004,
Plaintiffs,
v.
ERIC HARGAN, Acting Secretary of Health
and Human Services
U.S. Department of Health & Human
Services
200 Independence Avenue, S.W.
Washington, D.C. 20201;
STEPHEN WAGNER, Acting Assistant
Secretary for Administration for Children and
Families, in his official capacity
330 C Street, S.W.
Washington, D.C. 20201; and
SCOTT LLOYD, Director of Office of
Refugee Resettlement, in his official capacity
330 C Street, S.W.
Washington, D.C. 20201,

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No. 17-cv-02122-TSC

Defendants.

SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF
(Interference with minors’ constitutional right to obtain an abortion)
Plaintiff Rochelle Garza, court-appointed guardian ad litem to minor J.D., Plaintiffs Jane
Roe and Jane Moe, on behalf a class of similarly situated pregnant unaccompanied immigrant

 Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 2 of 19

minors in the legal custody of the federal government, and Plaintiff Jane Poe, for their complaint
in the above-captioned matter, allege as follows:
PRELIMINARY STATEMENT
1.

There are currently thousands of unaccompanied immigrant minors (also known

as unaccompanied children, or “UCs”) in the legal custody of the federal government. These
young people are extremely vulnerable: Many have come to the United States fleeing abuse and
torture in their home countries; many have been sexually abused or assaulted either in their home
countries, during their long journey to the United States, or after their arrival; some have also
been trafficked for labor or prostitution in the United States or some other country; and many
have been separated from their families.
2.

The federal government is legally required to provide these young people with

basic necessities, such as housing, food, and access to emergency and routine medical care,
including family planning services, post-sexual assault care, and abortion. And as is true with
everyone in the United States, the Constitution prohibits the government from imposing an
“undue burden” on their right to obtain an abortion.
3.

Defendants have recently revised nationwide policies that allow them to wield an

unconstitutional veto power over unaccompanied immigrant minors’ access to abortion in
violation of their Fifth Amendment rights. Under these nationwide policies, Defendants also
force unaccompanied minors who request abortion to visit a pre-approved anti-abortion crisis
pregnancy center, which requires the minor to divulge the most intimate details of her life to an
entity hostile to her abortion decision, in violation of her First and Fifth Amendment rights.
Defendants also force minors to notify parents or other family members of their request for
abortion and/or the termination of their pregnancy, or notify family members themselves, in
violation of the First and Fifth Amendments.
4.

Plaintiff “Jane Moe,” an unaccompanied minor in the legal custody of the federal

government (a motion to allow her to proceed by a pseudonym will be filed herewith), is
pregnant and seeking an abortion. Ms. Moe first requested access to abortion approximately two

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weeks ago but, to date, Defendants have not allowed her to access abortion. Defendants have
pushed Ms. Moe further into her pregnancy. Without this Court’s immediate intervention,
Defendants will continue to deny Ms. Moe the ability to access abortion, and ultimately will
force her to carry to term against her will.
5.

Previously, two unaccompanied minors in the legal custody of the federal

government, “Jane Roe” and “Jane Poe” (a motion to allow them to proceed by pseudonyms was
granted), were pregnant and sought an abortion. Ms. Roe first requested an abortion on
November 21, 2017, but Defendants did not allow her to access abortion. Defendants pushed
Jane Roe further into her pregnancy, forcing her to forgo a medication abortion. Ms. Poe also
sought an abortion, and she was quickly approaching the limit for abortion in the state where she
was being detained. Ms. Poe urgently needed access to an abortion provider, but Defendants did
not allow her to see one. Absent this Court’s immediate intervention, Defendants would have
continued to block Ms. Roe’s and Ms. Poe’s ability to access abortion, and ultimately would
have forced them to carry their pregnancies to term against their will.
6.

Previously, an unaccompanied immigrant minor in the legal custody of the federal

government, J.D. (for “Jane Doe”; an unopposed motion to allow her to proceed by those
pseudonymous initials is pending), learned she was pregnant and told the shelter in Texas where
she lives that she would like to have an abortion. Because Texas requires parental consent or a
judicial waiver of that requirement, J.D. went to court and, with the assistance of an attorney ad
litem and a guardian ad litem, received judicial permission to consent to the abortion on her own.
Defendants took the position that J.D. was prohibited from accessing an abortion: Defendants
would not transport her for the abortion, nor would they allow anyone else to do so. Defendants
essentially held J.D. hostage to prevent her from getting an abortion in blatant violation of J.D.’s
constitutional rights.
7.

Defendants also forced J.D. to visit a religious, anti-abortion crisis pregnancy

center, and, over J.D.’s objections, told J.D.’s mother that J.D. was pregnant. To vindicate her
constitutional rights to terminate her pregnancy and to avoid compelled speech, her court-

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appointed guardian ad litem, Rochelle Garza, sought an immediate TRO to grant J.D. access to
judicially approved abortion, and, on behalf of the class of similarly situated unaccompanied
immigrant minors, a preliminary injunction to prevent Defendants from obstructing, interfering
with, or blocking other individuals’ access to abortion.
8.

Although J.D., Jane Roe, and Jane Poe were able to obtain abortions after this

Court’s intervention, Defendants are now preventing Jane Moe from accessing abortion.
9.

While abortion is a very safe procedure, each week of delay increases the risk

associated with it.
10.

Absent emergency injunctive relief, Defendants’ actions will have the effect of

forcing Jane Moe to continue her pregnancy against her will.
JURISDICTION AND VENUE
11.

This action arises under the First and Fifth Amendments to the United States

Constitution and presents a federal question within this Court’s jurisdiction under Article III of
the Constitution and 28 U.S.C. § 1331.
12.

Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C.

§§ 2201 and 2202, by Federal Rules of Civil Procedure 57 and 65, and by the inherent equitable
powers of this Court.
13.

The Court has authority to award costs and attorneys’ fees under 28 U.S.C. §

14.

Venue is proper in this district under 28 U.S.C. § 1391(e).

2412.

PARTIES
15.

Plaintiff Rochelle Garza is the court-appointed guardian ad litem for J.D., a minor

who came to the United States without her parents from her home country. J.D. was detained by
the federal government and placed in a federally funded shelter in Texas. J.D. is 17 years old.
She was pregnant and told the staff at the shelter where she is currently housed that she wanted
an abortion. J.D. faced extreme resistance from Defendants. After Plaintiffs’ counsel contacted
Defendants’ counsel, J.D. was allowed to pursue a judicial bypass in lieu of securing parental

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consent for the abortion, as required by Texas law. With the assistance of attorney and guardian
ad litems, J.D. secured a court order permitting her to have an abortion without parental consent.
Nevertheless, Defendants took the position that they would not allow J.D. to access abortion.
16.

J.D. was forced to cancel multiple appointments for state-mandated counseling

and the abortion due to Defendants’ obstruction, which pushed J.D. later into pregnancy;
although abortion is very safe, each week of delay increases the risks. Abortion is approximately
14 times safer than childbirth in terms of morbidity. J.D. remains in Defendants’ custody, and
absent a TRO from this Court, J.D. would have been forced to carry to term against her will.
17.

Defendants also forced J.D. to visit an anti-abortion crisis pregnancy center, and

over J.D.’s objection, Defendants told J.D.’s mother about her pregnancy.
18.

J.D. moved this Court to be referred to in this litigation by the initials “J.D.” for

“Jane Doe” to protect her privacy. She fears retaliation because of her abortion decision, and she
does not want her family to know she sought and obtained abortion.
19.

J.D. sues on her own behalf and as the class representative of other similarly

situated young women.
20.

Plaintiff Jane Roe came to the United States without her parents, was detained by

the federal government, and was residing in a private, federally funded shelter. On November 21,
2017, she discovered she was pregnant during a medical examination after she was in federal
custody. The physician discussed her pregnancy options, and she decided to have an abortion.
She asked her doctor and her shelter for an abortion, but Defendants did not allow her to have
one. Jane Roe requested to terminate her pregnancy by taking medications (known as a
medication abortion) that end the pregnancy and essentially cause a miscarriage. However,
because of Defendants’ obstruction, a medication abortion was no longer an option. Jane Roe
nonetheless still wanted an abortion.
21.

Jane Roe was granted leave from this Court to proceed in this litigation as “Jane

Roe” to protect her privacy. She fears retaliation because she requested and obtained an abortion,
and she does not want her family or others to know she sought or obtained an abortion.

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22.

Upon information and belief, based on Defendants’ policy, Jane Roe has or will

be forced to disclose, or Defendants will disclose, highly personal and confidential information
about her pregnancy against her will, including to family members and/or to an anti-abortion
counseling center.
23.

Jane Roe sues on her own behalf and as class representative of other similarly

situated young women.
24.

Plaintiff Jane Poe came to the United States without her parents, was detained by

the federal government, and is residing in a private, federally funded shelter. She discussed her
pregnancy options with a physician, and decided to have an abortion. She asked the shelter for
access to abortion but was not permitted to access abortion.
25.

Upon information and belief, based on Defendants’ policy, Jane Poe has or will

be forced to disclose highly personal and confidential information about her pregnancy against
her will, including to family members and to an anti-abortion counseling center. In fact, when
Ms. Poe was required to tell her mother and potential sponsor about her pregnancy, they
threatened to physically abuse her if she had an abortion.
26.

Jane Poe was granted leave by this Court to proceed in this litigation as “Jane

Poe” to protect her privacy. She fears retaliation because she requested and obtained an abortion,
and she does not want her family or others to know she sought and obtained an abortion.
27.

Jane Moe came to the United States without her parents, was detained by the

federal government, and is residing in a private, federally funded shelter. She has decided to have
an abortion. She asked the shelter for access to abortion but, to date, has not been permitted to
access abortion.
28.

Pursuant to Defendants’ policy, Jane Moe was required to visit an anti-abortion

crisis pregnancy center to discuss her pregnancy.
29.

Upon information and belief, based on Defendants’ policy, Defendants are

seeking to require Ms. Moe to disclose her pregnancy and abortion decision to her parents,
despite her desire that this information be kept private. Ms. Moe does not want to be forced to

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disclose, or have Defendants disclose, highly personal and confidential information about her
pregnancy against her will to family members and/or potential sponsors.
30.

Jane Moe requests leave from this Court to proceed in this litigation as “Jane

Moe” to protect her privacy. She fears retaliation because she has requested an abortion, and she
does not want her family or others to know she is seeking an abortion.
31.

Jane Moe sues on her own behalf and as class representative of other similarly

situated young women.
32.

Defendant Eric Hargan is the Acting Secretary of the United States Department of

Health and Human Services (“HHS”) and is responsible for the administration and oversight of
the Department. Defendant Hargan has authority over the Administration for Children and
Families, a subdivision of HHS. By interfering with, prohibiting and/or obstructing
unaccompanied immigrant minors’ access to abortion, Defendant Hargan is violating the First
and Fifth Amendment rights of those unaccompanied immigrant minors. Defendant Hargan is
sued in his official capacity.
33.

Defendant Steven Wagner is the Acting Assistant Secretary for Administration for

Children and Families. Defendant Wagner has authority over the Office of Refugee Resettlement
(“ORR”), a subdivision of Administration for Children and Families. By interfering with,
prohibiting and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant
Wagner is violating the First and Fifth Amendment rights of those unaccompanied immigrant
minors. Defendant Wagner is sued in his official capacity.
34.

Defendant Scott Lloyd is the Director of ORR. By interfering with, prohibiting

and/or obstructing unaccompanied immigrant minors’ access to abortion, Defendant Lloyd is
violating the First and Fifth Amendment rights of those unaccompanied immigrant minors.
Defendant Lloyd is sued in his official capacity.
FACTS GIVING RISE TO THIS ACTION
The Unaccompanied Children (“UC”) Program

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35.

ORR has responsibility for the “care and custody of all unaccompanied []

children, including responsibility for their detention, where appropriate.” 8 U.S.C. § 1232(b)(1).
Unaccompanied immigrant minors are under 18 years old, have no legal immigration status, and
either have no parent or legal guardian in the United States, or there is no parent or legal
guardian in the United States able to provide care and physical custody. 6 U.S.C. § 279(g)(2).
36.

By statute, any federal department or agency that determines that it has an

unaccompanied immigrant minor in its custody must transfer the minor to ORR within 72 hours
of making that determination. Id. § 1232(b)(3). The federal government reports that in Fiscal
Year 2016, 59,692 unaccompanied immigrant minors were referred to ORR.
37.

The federal government and all of its programs are required to ensure that the best

interests of the unaccompanied immigrant minor are protected. Section 462 of the Homeland
Security Act requires ORR to “ensur[e] that the interests of the child are considered in decisions
and actions relating to the care and custody of an unaccompanied child.” 6 U.S.C. §
279(b)(1)(B).
38.

In addition, Section 235 of the Trafficking Victims Protection Act directs HHS to

ensure that unaccompanied immigrant minors are “promptly placed in the least restrictive setting
that is in the best interest of the child.” 8 U.S.C. § 1232(c)(2)(A).
39.

Most unaccompanied immigrant minors who are referred to ORR are eventually

released from custody to parents or sponsors who live in the United States. Such minors are often
held in short-term facilities or shelters while they await release to their parents or sponsors. A
significant number of unaccompanied immigrant minors are not released to parents or sponsors,
and spend longer periods of time in custody. For some minors, ORR cannot identify an
individual who can serve as a viable sponsor. Young people who are expected to be in the
government’s custody for an extended period or those who have special needs are sometimes
transferred to group homes or a foster family. For others, ORR may determine that the minor
should be placed in a more restrictive custodial setting. Young people who are flight risks, for
example, are held in jail-like facilities with limited, if any, freedom.

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Unaccompanied Immigrant Minors Are Legally Entitled to Receive Access to Reproductive
Health Care
40.

Unaccompanied immigrant minors have an acute need for reproductive health

care, which is both time-sensitive and is necessary over the course of their time in federal
custody. For example, a high number of these young women are victims of sexual assault. Some
of these women will need access to emergency contraception, and some will need access to
abortion. Any female aged 10 or older must undergo a pregnancy test within 48 hours of
admission to an ORR-funded facility. This is the point at which many young women first learn
they are pregnant. Many unaccompanied minors need pregnancy prevention services and/or
access to abortion during their short or long periods in ORR custody.
41.

The federal government is legally obligated to ensure that all programs that

provide care to these young people comply with the minimum requirements detailed in the
Flores v. Reno Settlement Agreement, CV-85-4544-RJK (C.D. Cal. Jan. 17, 1997) (“Flores
agreement”). The Flores agreement is a nationwide consent decree that requires the government
to provide or arrange for, among other things, “appropriate routine medical . . . care,” including
specifically “family planning services[] and emergency health care services.”
42.

Additionally, in response to its obligations under the Prison Rape Elimination Act

and the Violence Against Women Reauthorization Act of 2013, ORR issued a regulation
requiring all ORR-funded care provider facilities to, among other things, provide unaccompanied
immigrant minors who are victims of sexual assault with access to reproductive healthcare. The
regulation states, in relevant part, that grantees providing care to unaccompanied immigrant
minors who have experienced sexual abuse while in federal custody must ensure “unimpeded
access to emergency medical treatment, crisis intervention services, emergency contraception,
and sexually transmitted infections prophylaxis.” 45 C.F.R. § 411.92(a). The regulation further
provides that grantees must ensure that a young person subject to sexual abuse is offered a
pregnancy test, and “[i]f pregnancy results from an instance of sexual abuse, [the] care provider
facility must ensure that the victim receives timely and comprehensive information about all

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lawful pregnancy-related medical services.” Id. § 411.93(d). Grantees were required to comply
with this regulation by June 24, 2015.
43.

Upon information and belief, unaccompanied immigrant minors face significant

barriers to obtaining services not provided by the government and/or its grantees. For example,
even if a teen can leave the shelter, she still may not be able to obtain access to abortion or
contraceptives without assistance because she likely speaks little or no English; she may have no
support system, other than that provided by the federal program; she may have no means of
transportation to the doctor’s office; and she may have little or no financial resources. If she is
not informed that contraceptives and abortions are available in the United States, she may not
even know that these options exist, given that many of these young people come from countries
where abortion is illegal.
Defendants’ Interference With, Obstruction, or Prohibition On
Unaccompanied Immigrant Minors’ Access to Abortion
44.

Defendants are wielding an unconstitutional veto power over unaccompanied

immigrant minors’ access to abortion. In March 2017, ORR revised its policies to prohibit all
federally funded shelters from taking “any action that facilitates” abortion access for
unaccompanied minors in their care without “direction and approval from the Director of ORR.”
This includes scheduling appointments with medical providers, ensuring access to non-directive
options counseling, ensuring access to court to seek a judicial bypass in lieu of parental consent,
and providing access to the abortion itself.
45.

In an email to all ORR staff, then-Acting Director of ORR Ken Tota summarized

the policy: “Grantees are prohibited from taking any actions in [requests for abortion] without
. . . signed authorization from the Director of ORR.”
46.

As part of the revised policy, the minor is forced to tell her parents that she is

seeking an abortion; if she refuses, ORR instructs the shelter to tell her parents against her

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wishes. Moreover, ORR requires minors considering an abortion to visit an anti-abortion – often
religiously affiliated – crisis pregnancy center. If these attempts to coerce the minor into carrying
to term fail, ORR prevents the minor from obtaining an abortion while in its custody unless the
pregnancy would pose risk of death or serious injury to the minor.
47.

Defendants have exercised their unconstitutional veto power to deny J.D., Jane

Roe, Jane Poe, and Jane Moe access to abortion. After Plaintiffs’ counsel’s intervention,
Defendants permitted J.D. to seek a judicial bypass in lieu of parental consent required by Texas
law. J.D. secured that court order with the assistance of an attorney ad litem and a guardian ad
litem, Plaintiff Garza. J.D. had an appointment scheduled with a health center for options
counseling (the first step in the process of obtaining an abortion under Texas law), but
Defendants told the ad litems, Plaintiffs’ counsel, and the shelter that Defendants prohibited J.D.
to be transported by her ad litems to the health center. Defendants also made clear that J.D.
would be prohibited from obtaining the abortion itself.
48.

The judicial bypass order obtained for J.D. remained valid. Plaintiff Garza stood

ready and able to transport J.D. to all appointments necessary for the abortion, including the
state-mandated options counseling sessions and the medical procedure itself.
49.

Upon information and belief, Defendants instructed the shelter in which J.D.

resides to prohibit J.D. from leaving the facility to access abortion, and told the shelter that if
they allowed her access, Defendants would revoke the shelter’s government grant. But for that
instruction, the shelter was willing to allow Plaintiff Garza to transport J.D. to the abortion
facility.
50.

Defendants also withheld permission that would have allowed Jane Roe’s and

Jane Poe’s respective shelters to transport them to an abortion clinic. This means that they were

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prohibited from accessing abortion. The shelters were ready and willing to transport them, or to
allow them to be transported, to an abortion facility, but lacked Defendants’ permission.
51.

Defendants are currently withholding permission that would allow Jane Moe’s

shelter to transport her to an abortion clinic. This means that Ms. Moe is prohibited from
accessing abortion. If the shelter was to obtain Defendants’ permission, it is ready and willing to
transport her, or allow her to be transported, to an abortion facility.
52.

Defendants have also interfered with abortion access for other minors. In fact, the

Director of ORR, Scott Lloyd, has taken the position that “[g]rantees should not be supporting
abortion services pre or post-release; only pregnancy services and life-affirming options
counseling.”
53.

Defendants’ actions toward J.D., Jane Roe, Jane Poe, and Jane Moe are consistent

with their policy, which has been enforced against other young women as well.
54.

For example, in March 2017, another unaccompanied minor at a federally funded

shelter in Texas decided to have an abortion. After obtaining a judicial bypass and receiving
counseling, she started the medical abortion regimen for terminating a pregnancy. This regimen
begins with a dose of mifepristone, followed by a dose of misoprostol within 48 hours later.
After the minor took the mifepristone, ORR intervened, and forced her to go to an “emergency
room of a local hospital in order to determine the health status of [her] and her unborn child.”
The Acting Director of ORR, Ken Tota, directed ORR as follows: “[i]f steps can be taken to
preserve the life of . . . her unborn child, those steps should be taken.” Eventually, after the
intervention of other advocates, ORR allowed the minor to complete the medication abortion and
take the second dose of pills.

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55.

Furthermore, Defendant ORR Director, Scott Lloyd, has personally contacted one

or more unaccompanied immigrant minors who was pregnant and seeking abortion, and
discussed with them their decision to have an abortion. Upon information and belief, Defendant
Lloyd is trying to use his position of power to coerce minors to carry their pregnancies to term.
56.

ORR has also created a nationwide list of “Trusted Providers in HHS Cities,”

which is predominately comprised of anti-abortion crisis pregnancy centers.
57.

Crisis pregnancy centers (“CPCs”) are categorically opposed to abortion, and

generally do not provide information about pregnancy options in a neutral way. Many are also
religiously affiliated, and proselytize to women.
58.

Defendants forced J.D. to visit one of these centers for “counseling,” forcing her

to share her most private personal and medical information to an entity that is hostile to her
decisions to have an abortion.
59.

Defendants have also required other minors to be counseled by crisis pregnancy

centers, including Jane Moe, both before and after the abortion, including at the explicit direction
of Defendant ORR Director Scott Lloyd.
60.

Defendants have also unconstitutionally forced unaccompanied immigrant minors

to tell their parents and/or immigration sponsors about their abortion decision, or Defendants
themselves have told minors’ family members or sponsors about the minors’ pregnancy and/or
abortion decision, against the express wishes of the minor, both before and after the abortion.
61.

Defendants told J.D.’s mother about J.D.’s pregnancy – over J.D.’s objections –

and tried to force J.D. to also tell her mother she was pregnant and seeking an abortion. In at
least one other minor’s case, Defendant Lloyd explicitly required “the grantee or the federal field

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staff [to] notify her parents of the termination,” even after she had obtained a judicial bypass to
be allowed to access abortion without her parents’ involvement or knowledge.
CLASS ALLEGATIONS
62.

Pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), Plaintiff Rochelle

Garza, on behalf of J.D., brings this action as a class action on behalf of all other pregnant
unaccompanied immigrant minors in ORR custody nationwide, including those who will become
pregnant during the pendency of this lawsuit. Plaintiffs Jane Roe and Jane Moe also bring this
action as a class action on behalf of the same class.
63.

The class is so numerous that joinder is impracticable. In any given year, there are

hundreds of pregnant unaccompanied minors in Defendants’ custody. Joinder is inherently
impractical because the number of unnamed, future class members who will be pregnant while in
ORR custody is unknown and unknowable, especially given the transient nature of the
unaccompanied minors population and the temporal limitations of pregnancy. The young people
affected by ORR’s abortion restriction policy are geographically dispersed across the country.
Proposed class members are highly unlikely to file individual suits on their own behalf given the
practical, legal, linguistic, monetary, and fear-based barriers that prevent their ability to access
independent counsel to challenge ORR’s abortion restrictions.
64.

The claims of the Plaintiff Class members share common issues of law, including

but not limited to: (i) whether ORR’s policy of exercising a veto power over a UC’s abortion
access violates class members’ constitutional rights; (ii) whether HHS’s policy of requiring a
forced visit to an anti-abortion crisis pregnancy center violates class members’ constitutional
rights; and (iii) whether disclosing – or forcing the class members to disclose – to parents or
immigration sponsors their abortion decisions violate class members’ constitutional rights.

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65.

The claims of the Plaintiff Class members share common issues of fact, including

but not limited to the implementation of Defendants’ policy and practice of obstructing or
preventing of access to abortion in the various ways detailed above.
66.

The claims of J.D., Jane Roe, and Jane Moe are typical of the claims of members

of the Plaintiff Class.
67.

The named Plaintiffs will fairly and adequately protect the interests of the

Plaintiff Class. The named Plaintiffs have no interest that is now or may potentially be
antagonistic to the interests of the Plaintiff Class. The attorneys representing the named Plaintiffs
are experienced civil rights attorneys and are considered able practitioners in federal
constitutional litigation. These attorneys should be appointed as class counsel.
68.

Defendants have acted, have threatened to act, and will act on grounds generally

applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief
appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under
Fed. R. Civ. P. 23(b)(2).
69.

Prosecution of separate actions by individual members of the Plaintiff Class

would create the risk of inconsistent or varying adjudications and would establish incompatible
standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may
therefore be properly certified under Fed. R. Civ. P. 23(b)(1).
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
FIFTH AMENDMENT RIGHT TO PRIVACY AND LIBERTY
(PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS)
70.

Defendants violate unaccompanied immigrant minors’ right to privacy guaranteed

by the Fifth Amendment by wielding a veto power over their abortion decisions, and obstructing,

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interfering with, or blocking access to abortion, including by forcing minors to visit crisis
pregnancy centers and preventing them from going to medical facilities where they can obtain
legal abortions.
71.

Defendants violate the Fifth Amendment rights of unaccompanied minors by

revealing, or forcing the minors to reveal, information about their pregnancy and abortions to
their parents or other family members, including immigration sponsors, both before and after the
abortion.
SECOND CLAIM FOR RELIEF
FIRST AMENDMENT - COMPELLED SPEECH
(PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS)
72.
By compelling unaccompanied immigrant minors to discuss their decisions to
have abortions and the circumstances surrounding those decisions with crisis pregnancy centers,
and with their parents or immigration sponsors, Defendants violate the unaccompanied
immigrant minors’ rights against compelled speech guaranteed by the First Amendment.
THIRD CLAIM FOR RELIEF
INFORMATIONAL PRIVACY
(PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS)
73.

By requiring unaccompanied immigrant minors to disclose their identities, their

pregnancies, and their decisions to seek or have an abortion, to a crisis pregnancy center, parents,
and/or immigration sponsors, Defendants violate the minors’ rights to informational privacy
guaranteed by the Fifth Amendment.
FOURTH CLAIM FOR RELIEF
FIRST AMENDMENT – ESTABLISHMENT CLAUSE
(PLAINTIFFS J.D., JANE ROE, JANE POE, JANE MOE, AND CLASS AGAINST
DEFENDANTS)

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 Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 17 of 19

74.

Defendants violate the Establishment Clause by requiring unaccompanied

immigrant minors to obtain counseling at crisis pregnancy centers that are often religiously
affiliated, and that proselytize to the unaccompanied immigrant minors who are forced to go
there.
75.

Defendants’ actions alleged herein endorse and impose upon the class members a

particular set of religious beliefs.
76.

Defendants’ actions alleged herein have the predominant purpose of advancing a

particular set of religious beliefs.
77.

Defendants’ actions alleged herein have the predominant effect of advancing a

particular set of religious beliefs.
78.

Defendants’ actions alleged herein are religiously coercive.
RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor
and:
1.

Certify this action as a class action under Federal Rule of Civil Procedure 23.

2.

Declare, pursuant to 28 U.S.C. § 2201, that Defendants’ actions, as set forth

above, violate the Establishment and Free Speech Clauses of the First Amendment to the United
States Constitution, and the Fifth Amendment right to privacy, liberty, and informational
privacy;
3.

Enter a Temporary Restraining Order preventing Defendants from obstructing

Jane Moe’s access to abortion;
4.

Enter a preliminary injunction as to the Plaintiff Class;

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 Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 18 of 19

5.

Enter a permanent injunction preventing Defendants from wielding a veto power

over an unaccompanied minors’ abortion decision, including interfering, obstructing, or blocking
her abortion;
6.

Enter a permanent injunction preventing Defendants from forcing unaccompanied

immigrant minors to visit crisis pregnancy centers as a condition of having an abortion or after
an abortion;
7.

Enter a permanent injunction preventing Defendants from revealing, or forcing

unaccompanied immigrant minors to reveal, to the minors’ parents or immigration sponsors
information about the minors’ pregnancies and/or abortion decisions, either prior to or after the
abortion decisions;
8.

Enter a permanent injunction preventing Defendants from retaliating against

unaccompanied immigrant minors for seeking or obtaining abortions;
9.

Award costs and fees for this action, including attorneys’ fees;

10.

Award such further relief as this Court deems appropriate.

January 11, 2017
Respectfully Submitted,
Arthur B. Spitzer (D.C. Bar No. 235960)
Scott Michelman (D.C. Bar No. 1006945)
American Civil Liberties Union Foundation
of the District of Columbia
4301 Connecticut Avenue NW, Suite 434
Washington, D.C. 20008
Tel. 202-457-0800
Fax 202-457-0805
aspitzer@acludc.org
smichelman@acludc.org
/s/Brigitte Amiri
Brigitte Amiri*

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 Case 1:17-cv-02122-TSC Document 104 Filed 01/11/18 Page 19 of 19

Meagan Burrows
Jennifer Dalven
Lindsey Kaley
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel. (212) 549-2633
Fax (212) 549-2652
bamiri@aclu.org
mburrows@aclu.org
jdalven@aclu.org
lkaley@aclu.org
Daniel Mach (D.C. Bar No. 461652)
American Civil Liberties Union Foundation
915 15th Street NW
Washington, DC 20005
Telephone: (202) 675-2330
dmach@aclu.org
Elizabeth Gill
Mishan R. Wroe
American Civil Liberties Union Foundation of
Northern California, Inc.
39 Drumm Street
San Francisco, CA 94111
Tel. (415) 621-2493
Fax (415) 255-8437
egill@aclunc.org
mwroe@aclunc.org
Melissa Goodman
American Civil Liberties Union Foundation of
Southern California
1313 West 8th Street
Los Angeles, California 90017
Tel. (213) 977-9500
Fax (213) 977-5299
mgoodman@aclusocal.org
*Motion for admission pro hac vice granted
Attorneys for Plaintiffs

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