The Trump administration told the Supreme Court Friday it should consider disciplining lawyers for an undocumented teenage immigrant seeking an abortion, alleging they misrepresented her situation in a way that kept the government from asking the high court to intervene.
In a highly unusual filing reflecting the stakes of abortion politics, Solicitor General Noel J. Francisco called out ACLU lawyers representing the girl, identified in court papers as Jane Doe. The document said the girl’s lawyers knew the Justice Department planned to ask the Supreme Court on Oct. 25 to review a lower court decision saying the 17-year-old had a right to an abortion while in government custody.
The ACLU lawyers initially told government lawyers that under abortion laws in Texas, where the girl was detained, it was unlikely the abortion could be performed until Oct. 26. But, the girl’s lawyers say they discovered in the early hours of Oct. 25, that the girl was able to receive the procedure that morning, before the Justice Department could file a stay request with the Supreme Court. The lawyers did not inform the government until the procedure was over.
The government is asking the court to vacate the decision of the U.S. Court of Appeals for the D.C. Circuit that said she was entitled to an abortion. The filing said the precedent should not apply to a remaining broader legal challenge to the federal government's policy of dissuading, and even blocking, undocumented teens in its custody from having abortions.
That challenge is still pending in district court and has implications for the hundreds of young pregnant immigrants who have been in federal custody in recent years.
“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 filing says. “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.”
ACLU Legal Director David Cole said in a statement the government’s charges were “baseless.”
“This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. 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 Justice Department has been criticized by some for failing to take the issue to the Supreme Court quickly enough to prevent the abortion, and Attorney General Jeff Sessions in a media interview last week blamed the girl’s lawyers.
“This was a total surprise and really a breach of the kind of confidence that lawyers should be able have with one another, and we were very upset about it,” Sessions said in an interview with Fox’s Bret Baier.
Lawyers who practice at the Supreme Court said they could not remember a similar request to the court, and some theorized that the solicitor general’s office was feeling political heat for failing to approach the high court before it was too late.
A news release from Texas Attorney General Ken Paxton (R) after the girl obtained the procedure mentioned that “the Department of Justice failed to appeal to the United States Supreme Court a ruling allowing the abortion.”
Other lawyers, however, said it was important for lawyers in high-profile cases to be able to depend on each other’s representations in making decisions about the timing of appeals.
Kathleen Clark, who teaches legal ethics at Washington University Law School in St. Louis, said it was obvious the government was frustrated, but she found the filing curious.
“Frankly, I’m surprised the government was so vague in its allegations about what standards were violated,” she said. She noted the strongest statement in the filing was that ACLU lawyers “at least arguably had an obligation to notify the government” of any change.
The Central American teenager, identified only as Jane Doe in court papers, is being held in a government-funded shelter and had been seeking an abortion since late September. She learned she was pregnant shortly after crossing the border where she was detained, her lawyers said.
She convinced a Texas judge she was mature enough to make the decision to end the pregnancy without the notification of her parents, whom she said she feared, according to her lawyers.
But the Trump administration’s Department of Health and Human Services has changed its policies and says it will not “facilitate” abortions for undocumented minors in federal custody.
Scott Lloyd, director of the Office of Refugee Resettlement, the HHS agency that oversees the minors, said in a March email that government-funded shelters caring for the minors “should not be supporting abortion services pre or post-release; only pregnancy services and life-affirming options counseling.”
A federal district judge ordered the abortion to proceed, but a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit stopped the process, and said it was preferable that the government find a sponsor for the girl, which would take the government out of helping her receive an abortion.
The full circuit court reversed that decision in a 6-to-3 ruling, followed a few hours later by a new order from the district judge. That started the race that Tuesday night. For the solicitor general’s office, it was to get the issue before the Supreme Court. For lawyers for the girl, it was to get her the abortion. She was 15 weeks pregnant at the time.
Texas law requires medical counseling at least 24 hours in advance of an abortion by the same physician who performs the procedure. The 17-year-old underwent counseling on Oct. 19, allowing her to have the abortion any time after lower courts issued the order in her favor, depending on the doctor’s availability.