In the wake of an alarming series of events in Texas involving a 17-year-old illegal immigrant who argued she had a right to an abortion paid for by U.S. taxpayers, the Department of Justice is asking the Supreme Court to step in and punish ACLU lawyers for giving them the slip and taking the girl for an abortion in the dead of night before the Supreme Court could review the case. It’s also asking the court to dismiss all such cases in the future involving pregnant unaccompanied minors who are in the care of the U.S. government.
“The ACLU misled the United States as to the timing of Jane Doe’s abortion,” Department of Justice spokesman Devin O’Malley said in a statement to the media on Friday. “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.”
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Jane Doe is the name used in court documents for the 17-year-old from Central America who had crossed the U.S.-Mexico border illegally in September and was living in a U.S. government-funded detention center in Brownsville, Texas, when she learned she was pregnant and requested to have an abortion.
The Department of Health and Human Services Office of Refugee Resettlement said it would not take her to get an abortion, or pay for it, but that the teen could return to her own country to get an abortion, or could identify a sponsor in the U.S. who could take over her care, and take her to get one.
According to court documents, Jane Doe identified two potential sponsors in the U.S., but neither claimed her. And she said she wanted to return to her country of origin, but did not follow through on filling out the necessary paperwork, according to the Department of Justice.
The federal appeals court for the District of Columbia ruled on October 24 that the government had to facilitate pre-abortion counseling for the teen, as required by Texas law before an abortion could be performed, and then facilitate the abortion itself 24 hours later.
But after the Department of Justice attorneys told the ACLU-funded attorneys that it was filing a stay the next morning to prevent the abortion from taking place before the Supreme Court had a chance to review the case, the ACLU played a trick.
“When Ms. Doe could not receive counseling from a physician on the evening of October 24, her representatives informed the government that her appointment would be moved to the morning of October 25, pushing the abortion procedure to October 26,” the Department of Justice wrote to the Supreme Court. “The government asked to be kept informed of the timing of Ms. Doe’s abortion procedure, and one of respondent’s counsel agreed to do so. Based on those representations, the government informed this court’s clerk’s office and respondent’s counsel that it would file a stay application the following morning, October 25.”
“At that point,” the DOJ’s letter continued, “by their own account, Ms. Doe’s representatives did three things: They secured the services of Ms. Doe’s original physician (who had provided counseling the previous week), moved her appointment from 7:30 to 4:15 a.m. on the morning of October 25, and changed the appointment from counseling to an abortion. Although Ms. Doe’s representatives informed the government of the change in timing, they did not inform the government of the other two developments — which kept the government in the dark about when Ms. Doe was scheduled to have an abortion.
“The government did not learn that critical fact until shelter personnel arrived with Ms. Doe at the clinic for her early-morning appointment on October 25. The government’s efforts to reach respondent’s counsel were met with silence, until approximately 10 a.m. Eastern Time, when one of respondent’s counsel notified the government that Ms. Doe had undergone an abortion.”
Pro-abortion groups were gleeful on the announcement of the news that the teen had had the abortion.
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NARAL wrote that it was “thrilled” on hearing the news, while the ACLU shared its triumph in a press release, with senior staff attorney Brigitte Amiri saying justice had “prevailed.”
But justice had in fact been pre-empted, it seems, and now may have the last say.
The solicitor general of the United States, Noel Francisco, told the Supreme Court that “…the judgment of the court of appeals should be vacated, and the case should be remanded to the court of appeals with instructions to remand to the district court for dismissal of all claims for prospective relief regarding pregnant unaccompanied minors.”
He went on to write: “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. It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted. At the least, this court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”
In response, the ACLU shot off a press release titled “Govt. Attacks ACLU in Effort to Mask Its Own Litigation Failures.” In it, the organization said the Trump administration had failed “to file a timely appeal.”
“The government could have immediately sought a stay of the order, but did not do so,” the ACLU wrote.
Texas and several other states had filed an amicus brief on the side of the federal government, warning that if the teen were found to have a right to an abortion after crossing illegally into the U.S. and while in the custody of the Department of Health and Human Services, the U.S. risked becoming an abortion sanctuary.
“No federal court has ever declared that unlawfully present aliens with no substantial ties to this country have a constitutional right to abortion on demand,” Texas Attorney General Ken Paxton said in a news release. “If ‘Doe’ prevails in this case, the ruling will create a right to abortion for anyone on earth who enters the U.S. illegally. And with that right, countless others undoubtedly would follow. Texas must not become a sanctuary state for abortions.”