DOJ Suggests SCOTUS Should Punish ACLU Lawyers In Jane Doe Abortion Case

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Kevin Daley Supreme Court correspondent
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In an extraordinary filing, the Department of Justice (DOJ) asked the U.S. Supreme Court Friday to sanction the ACLU attorneys who helped an illegal teenage immigrant obtain an abortion after a lengthy legal fight with the Trump administration.

The teen, identified only as Jane Doe in court filings, obtained an abortion in the early hours of Oct. 25, after the U.S. Court of Appeals for the D.C. Circuit ordered the Department of Health and Human Services (HHS) to provide the logistical support necessary for her abortion. HHS officials initially refused to transport Doe from a federally-funded shelter to a women’s health clinic, arguing the government had no affirmative duty to facilitate abortions.

DOJ attorneys say Doe’s lawyers deliberately misled them as to the timing of her abortion, so as to prevent DOJ from asking the Supreme Court to review the case.

“The ACLU misled the United States as to the timing of Jane Doe’s abortion,” a Department spokesman said in a statement. “After informing Justice Department attorneys that the procedure would occur on Oct. 26, Jane Doe’s attorney scheduled the abortion for the early morning hours of Oct. 25, thereby thwarting Supreme Court review.”

“In light of that, the Justice Department believes the judgement under review should be vacated, and discipline may be warranted against Jane Doe’s attorneys,” the spokesman added.

ACLU attorneys responded on Twitter moments after the filing, accusing the Justice Department of politically-motivated spite.

By the government’s telling, Doe’s lawyers told DOJ that she would receive pre-procedure counseling required by Texas law on Oct. 25, and terminate her pregnancy the following day on Oct. 26. The ACLU also agreed to keep the Department abreast of all developments. On the basis of these representations, the government informed the Supreme Court they would formally ask the justices to review the case on Oct. 25 — but the request never came, because Doe had her abortion one day early, on the morning of the 25th.

Doe was 15 weeks pregnant when she had the abortion. Texas law prohibits abortion after 20 weeks.

“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 DOJ filing reads. “It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted.”

Lawyers rarely ask the high court to discipline opposing counsel.

The ACLU counters that DOJ is seeking to deflect blame after it failed to move quickly enough to appeal to the Supreme Court.

“Our lawyers acted in the best interests of our client and in full compliance with the court orders and federal and Texas law,” the ACLU said. “That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”

Texas Attorney General Ken Paxton appeared to criticize the Justice Department for not moving quickly enough in the hours after Doe’s abortion. Paxton’s office released a statement noting that the “Department of Justice failed to appeal to the United States Supreme Court,” and released a draft copy of an amicus (or “friend-of-the-court”) brief it prepared in support of the government’s position.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled earlier this month that HHS can deprive Doe of abortion access until Oct. 31, while the government searches for an adult sponsor to procure the procedure on her behalf. The full D.C. Circuit overturned that decision, concluding that the government’s actions imposed an undue burden on what the courts have called a woman’s right to abortion, in violation to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey.

The Department also asked the justices to vacate the lower court rulings which allowed Doe to obtain the abortion. A legal rule called the Munsingwear doctrine allows the Court to wipe out lower court rulings if a case is mooted while awaiting Supreme Court review.

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