The Justice Department on Friday asked the US Supreme Court to take up the case of an undocumented teen who sought — and ultimately got — an abortion, arguing that court decisions over the past month that made the teen's abortion possible should not apply to similar cases in the future.
The Justice Department is also accusing lawyers at the American Civil Liberties Union of providing misleading information about the timing of the teen's abortion, thwarting the government's ability to ask the Supreme Court to stop the procedure from taking place. DOJ is asking the justices to consider whether the ACLU lawyers should face disciplinary action.
"The ACLU misled the United States as to the timing of Jane Doe’s abortion," DOJ spokesman Devin O'Malley said in a statement. "After informing Justice Department attorneys that 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. In light of that, the Justice Department believes the judgment under review should be vacated, and discipline may be warranted against Jane Doe’s attorneys."
ACLU legal director David Cole said in a statement that Jane Doe's lawyers had no obligation to delay the abortion to give the government time to again challenge the procedure.
"This administration has gone to astounding lengths to block this young woman from getting an abortion. Now, because they were unable to stop her, they are raising baseless questions about our conduct," Cole said. "Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours."
The teen, referred to in court papers as Jane Doe, received the abortion on Oct. 25. She's been in custody at a federally funded shelter in Texas since crossing the US–Mexico border in September. She was at the heart of a legal fight over how much control Trump administration officials could have over pregnant, undocumented teens in custody who wished to have an abortion.
In the unusual petition filed with the Supreme Court on Friday, the government is arguing that because it wasn't able to ask the Supreme Court to weigh in on Jane Doe's case prior to the abortion, the justices should vacate an Oct. 24 order from the US Court of Appeals for the DC Circuit that cleared the way for the teen to have the procedure. Jane Doe's lawyers originally filed the lawsuit as a potential class action on behalf of other young women facing similar circumstances, but the trial judge handling the case had yet to rule on whether it could go forward as a class action.
The government wrote that Jane Doe's case is now moot because of actions taken by her and her lawyers, and as a result it should not "spawn any legal consequences," quoting from an earlier case.
"The en banc court’s decision should not be left on the books for use by these and other plaintiffs," the government argued.
According to the Justice Department, after the DC Circuit ruled on Oct. 24 Jane Doe's lawyers indicated that she wouldn't be able to receive the pre-abortion counseling required by Texas law until Oct. 25. Normally under Texas law, that would mean that Jane Doe couldn't get the abortion until Oct. 26. Based on that understanding, DOJ said it told the Supreme Court clerk's office and Jane Doe's lawyers that it planned to petition the high court to reconsider the DC Circuit's order on Oct. 25.
DOJ said it learned the evening of Oct. 24 that the timing for Jane Doe's Oct. 25 appointment had changed from 7:30 a.m. to 4:15 a.m. But the government said it was not told that the nature of the appointment also changed, from a counseling session to the abortion procedure. DOJ said it later learned that a doctor who had done a previous, pre-abortion counseling session with Jane Doe was able to come back to do the procedure.
The ACLU "at least arguably had an obligation to notify the government of this incredibly significant development," the Justice Department lawyers wrote.
"The government recognizes that respondent’s counsel have a duty to zealously advocate on behalf of their client, but they also have duties to this Court and to the Bar," the government argued. "It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted."