For more than a month this fall, a teenager known as Jane Doe fought the federal government for the right to get an abortion while living in an immigration shelter. She succeeded in getting the procedure last week — but the government is still fighting.
The Department of Justice now argues that the American Civil Liberties Union, which represented Doe in court, misled the government about the timing of Doe’s abortion. The department is petitioning the Supreme Court to vacate a lower court’s ruling in the case, which could have consequences for other pregnant minors in Doe’s position. It is also asking the Supreme Court to consider disciplinary action against Doe’s legal team.
Doe, who is 17 and arrived to the US undocumented and without her parents, lives in a Texas shelter under the jurisdiction of the Office of Refugee Resettlement. A new ORR policy, instituted under the Trump administration, bars unaccompanied, undocumented minors from getting abortions without permission from the director of ORR. Doe and her lawyers were battling this policy, and on October 24, a court ruled that the government could not block her from getting an abortion. (You can read more about the case here.) On the morning of October 25, Doe was able to get an abortion.
The government now says the ACLU had agreed to inform them when Doe’s abortion was scheduled, and did not do so. The government knew that Doe had an appointment scheduled for October 25, but believed it was for preabortion counseling, not abortion. Under Texas law, anyone seeking an abortion must get counseling at least 24 hours prior to the procedure, from the doctor who will perform the abortion. Doe had received counseling from a doctor the week of October 16, and since that doctor was able to perform her abortion, she did not need counseling again.
According to its petition, the Justice Department had planned to file an application for a stay on the morning of October 25 that would have delayed the abortion further, but Doe got the procedure before the department was able to do so.
The petition asks the Supreme Court to vacate the October 24 decision that allowed Doe to get an abortion. Obviously, this would not affect Doe directly; she has already gotten the procedure. But the ACLU has filed a motion for class certification, which could help other unaccompanied minors get abortions without government interference. If the court decision in Doe’s favor is vacated, lawyers would no longer be able to cite that precedent in arguing on behalf of all unaccompanied minors.
The Justice Department’s petition also suggests that the Supreme Court explore taking disciplinary action against Doe’s lawyers, either directly or through state bar associations, “for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.”
“Friday’s appeal is a flagrant effort to crucify the individual attorneys who represented Doe, and to terrify likeminded lawyers into acquiescence,” Dahlia Lithwick and Mark Joseph Stern write at Slate. “The DOJ is using the full weight of a government agency to threaten professional ruin upon the lawyers who defended Jane Doe’s constitutional right to abortion access.”
The ACLU argues that Doe’s lawyers were under no legal obligation to tell the government when her abortion was scheduled. “The medical details of her appointment are something for her and her doctor,” said David Cole, the legal director of the ACLU. To the extent that the ACLU notified the government of Doe’s schedule at all, he said, it was for logistical reasons, to set up Doe’s release from the shelter and transfer to the clinic.
The government could have appealed the October 24 decision immediately, Cole said, and did not do so. “Now after being criticized for that by the anti-choice movement, they’re seeking to deflect the blame onto us,” he said.
In an October 27 interview on Fox News, anchor Bret Baier asked Attorney General Jeff Sessions to respond to “pro-life critics out there saying your department dropped the ball on this” by not appealing sooner. Sessions said that the timing of the abortion “was a total surprise” and represented “a breach of the kind of confidence that lawyers should be able to have with one another.”
"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," he added. "I'm very disappointed that these lawyers were able to take the client around the law to avoid a court hearing."
Jane Doe did not seek federal funding for her abortion, and private funds, not federal dollars, paid for the procedure, according to the ACLU.
The ACLU has 60 days to respond to the Justice Department’s petition, and then the Supreme Court will decide whether to hear the case. “We will be urging the court to deny the petition,” Cole said.