On Friday, the U.S. Department of Justice filed an unusual petition with the U.S. Supreme Court, accusing the lawyers of misleading the government over the “timing” of an abortion granted to an undocumented teenager held in federal custody. The department is also arguing that because of the lawyers’ actions, the decision to grant an abortion in this particular case should not serve as precedent for future cases.
In its petition for a writ of certiorari, the Justice Department claimed the lawyers for 17-year-old Jane Doe — an undocumented teenager who crossed the southern U.S. border in September, found out she was pregnant, and was initially denied an abortion after she asked for it — misrepresented the date of Doe’s abortion. The American Civil Liberties Union (ACLU) represented Doe in her case.
The government claimed Doe’s abortion was set to have taken place on the morning of October 26. This was the date the government “relied on” to “file its application for a stay on the morning of October 25 and informed respondent’s counsel of its intent to so file.” The government also claimed Doe was supposed to receive counseling on October 25 at 7:30 a.m., to fulfill a Texas law that requires a 24-hour lapse between counseling and the abortion procedure. Instead, Doe switched physicians to someone who had provided her counseling a week earlier and underwent an abortion at 4:15 a.m. on October 25, hours before the government sought relief from the U.S. Supreme Court.
“After informing Department of Justice 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,” Justice Department spokesman Devin O’Malley said Friday. The department said that disciplinary action is “warranted” against Doe’s lawyers.
“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,” the petition read in part. “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.”
ACLU legal director David Cole pushed back on the government’s argument. “The Trump administration blocked Jane Doe from getting constitutionally protected care for a month and subjected her to illegal obstruction, coercion, and shaming as she waited,” he said in a statement. “After the courts cleared the way for her to get her abortion, it was the A.C.L.U.’s job as her lawyers to see that she wasn’t delayed any further — not to give the government another chance to stand in her way.
The Justice Department has also argued to “vacate” a ruling by the U.S. Court of Appeals for the District of Columbia on October 24 that granted the abortion due to the actions of Doe’s lawyers — meaning that the decision to grant Doe an abortion shouldn’t become a precedent for other young undocumented immigrants in a similar situation.
“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,” the petition argued.
Since September, the Trump administration has detained and denied an abortion to the 17-year-old Jane Doe who was placed in custody of the U.S. Department of Health and Human Services (HHS) at a shelter in Texas. She received a judicial waiver for her abortion to fulfill a Texas law that requires parental consent for minors. Despite that, she was sent to a crisis pregnancy center to deter her from getting an abortion. Her case also went through several legal obstacles before a federal appeals court ultimately granted her the abortion.
“People I don’t even know are trying to make me change my mind,” Doe said in a statement from the ACLU after she received her abortion. “I made my decision and that is between me and God. Through all of this, I have never changed my mind.”
Previously, the HHS said undocumented pregnant minors did not have the “constitutional right” to “get an elective abortion while in federal custody.”
Last week, Attorney General Jeff Sessions criticized Doe’s abortion, saying the Justice Department would pursue “in any way possible” to take the issue to use federal funds for abortions to the Supreme Court, The Hill reported.
“We’ll look at that and pursue it in any way possible,” Sessions said. “I don’t believe that we should be using taxpayers’ dollars to fund abortions and I think, in this case, it certainly was not justified. We’ve resisted it steadfastly and I am very disappointed that these lawyers were able to take the client around the law to avoid a court hearing at least to see that we were filing.”
In the case of Doe, her abortion procedure and trip to the clinic were paid for through private funds.
Clarification: This story has been updated to clarify that Jane Doe received her abortion through private funds.