Justice Department asks Supreme Court to vacate D.C. Circuit ruling in “Jane Doe’s” abortion, asks for disciplinary action against her lawyers

By Dave Andrusko

When we wrote about the case of “Jane Doe,” the undocumented teenager from Central America who wanted to abort, second only to the life of that individual child in importance was that the ACLU was seeking to set a precedent so that hundreds, and eventually thousands, of undocumented teenagers could abort. As NRL News Today readers recall, the 17-year-old girl, approximately 16 weeks pregnant, aborted her child October 25, the day after the full D.C. Court of Appeals ruled in her favor, 6-3.

That is why the 29-page petition for review, filed with the Supreme Court on Friday, is so important. As Amy Howe wrote, accurately summarized the petition (signed by Solicitor General Noel Francisco and Deputy Solicitor General Jeffrey Wall) and the background,

Today the federal government went to the Supreme Court, where it asked the justices to vacate the D.C. Circuit’s ruling, which would mean that the decision would no longer serve as legal precedent. And in a highly unusual move, the government also suggested that the justices should sanction Doe’s attorneys for misconduct that, the government argued, thwarted it from seeking Supreme Court review of the decision in the first place.

To summarize in two-sentences, the petition argues “the ACLU misled the United States as to the timing of Jane Doe’s abortion,” according to Justice Department spokesman Devin O’Malley. “After informing Justice Department attorney the procedure would occur on October 26th, Jane Doe’s attorneys scheduled the abortion for the early morning hours of October 25th, thereby thwarting Supreme Court review.”

The petition itself goes into great detail:

The government planned to seek an emergency stay from this Court before Ms. Doe could obtain an abortion. In light of counsel’s representations that no abortion would take place until October 26, the government informed this Court and respondent’s counsel that it would file an emergency application for a stay on the morning of October 25. Sometime later that evening, Ms. Doe’s appointment was changed so that instead of obtaining counseling at 7:30 a.m. on October 25, she would undergo an abortion at 4:15 a.m. that morning, just hours before the government planned to file its stay application. Respondent’s representatives did not notify the government or the shelter of the changed nature of the appointment. …

The petition argues that “By their own acknowledgement, respondent’s counsel shared that understanding”–that is, “that the appointment rescheduled for the morning of October 25 would be for counseling, with an abortion to follow no earlier than the morning of October 26. ”

The ACLU’s response to the media combined complaints about the Trump administration’s actions in the case–“This administration has gone to astounding lengths to block this young woman from getting an abortion,” in the words of ACLU legal director David Cole—and the insistence that it was the government lawyers’ fault because they “failed to seek judicial review quickly enough.”

The Justice Department was having none of that. Near the end of the petition in the case of Hargan v. Garza, they wrote

Finally, in light of the extraordinary circumstances of this case, the government respectfully submits that this Court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel—either directly by this Court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.

The battle to ensure that Jane Doe at least had the benefit of being transferred to an immigration sponsor before this minor had an abortion went on for a month.

The girl entered the U.S. unaccompanied in September. “After she crossed the border into Texas, she landed in a government-funded shelter for children who have entered the country illegally,” according to CNN’s Joan Biskupic. “When she learned she was pregnant, a guardian was appointed.”

On September 25 the district court issued a temporary restraining order that required the government to allow the girl to be transported to an abortionist. Federal officials appealed, saying they would not “facilitate” the abortion.

U.S. District Judge Tanya S. Chutkan agreed with the ACLU–that Jane Doe’s legal status was “irrelevant” and that “despite the fact that she’s in this country illegally, she still has constitutional rights.” The Trump administration appealed. The HHS’s Administration for Children and Families issued a statement which read, “For however much time we are given, the Office of Refugee Resettlement and HHS will protect the well being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care.”

Initially a three judge appeals court panel, on a 2-1 vote, gave the government until October 31 to find a sponsor. Two days later, on October 24, the ACLU appealed to the full court of appeals which sided with the ACLU.

The effect of the D.C. Circuit’s decision, which closely tracked the dissent of Judge Patricia Millett, was to send the case back to Judge Chutkan. Within hours, Judge Chutkan ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.

The following day Jane Doe aborted her baby.