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The relation-back date depends on the case. For instance, where a certification motion is denied and a named plaintiff's claim subsequently becomes moot, an appellate reversal of the certification decision may relate back to the time of the denial. Where a named plaintiff's claim is inherently transitory, and becomes moot prior to certification, a motion for certification may relate back to the filing of the complaint.
In 2017, the government instituted a policy effectively barring any unaccompanied alien child in its custody from obtaining a pre-viability abortion. This case concerns the constitutionality of that new policy. The policy functions as an across-the-board ban on access to abortion. It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held—including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion. And the government's newfound ban applies only to pregnant minors: anyone aged 18 (or older) in immigration custody is allowed to terminate her pregnancy. Minors alone, that is, must carry their pregnancies to term against their wishes. The claim of one minor in this case brings the policy's breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term. She was one of the named plaintiffs who brought this challenge to the government's policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government then appealed.
Did the inherently transitory exception to mootness apply to the unaccompanied alien minors' challenge of the government policy?
The court held that the inherently transitory exception to mootness applied to the unaccompanied alien minors' challenge of the government policy that effectively barred them from obtaining a pre-viability abortion where the length of time that pregnant minors remained in federal custody was uncertain and unpredictable, and there was no dispute that some class members would have live claims at every stage of litigation. The class was properly certified where, inter alia, beyond noting the mootness of the named minors' claims, the government identified no reason to doubt their ability to vigorously press the action. The court affirmed the injunctive provision barring interference with a class member's access to a pre-viability abortion where the challenged policy was not simply a mere withholding of funding, and thus, the minors had shown a likelihood of success on the merits.