Nine days after the Central American immigrant known as Jane Doe received her court-granted abortion in Texas, U.S. Justice Department lawyers asked the Supreme Court to intervene, arguing that they hadn’t filed an appeal on time because they had been misled by the teen’s lawyers.
Government lawyers also suggested Friday that Doe’s attorneys with the American Civil Liberties Union should be disciplined for lying and withholding information about the timing of Doe’s abortion in an attempt “to thwart this court’s review.”
The 17-year-old, in federal custody after crossing the border illegally, got an abortion Oct. 25 — one day after the Trump administration lost a federal appeals court ruling after blocking her access to the procedure for a month.
In their appeal to the Supreme Court, administration attorneys argued that Doe’s lawyers provided information indicating that the abortion would be scheduled for Oct. 26 after a counseling session on Oct. 25.
Instead, Doe’s appointment on Oct. 25 was moved from 7:30 a.m. to 4:15 a.m. with her original abortion doctor, with whom she had already had the state-mandated counseling session, allowing Doe to have the procedure a day earlier than expected, the government lawyers said.
The misdirection thwarted plans to try to block Doe’s abortion with an appeal to the Supreme Court, Justice Department spokesman Devin O’Malley said.
“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,” O’Malley said.
The ACLU scoffed at the claim, saying the Trump administration was trying to deflect criticism from abortion opponents — including Texas Attorney General Ken Paxton — after failing to act in a timely manner after a federal appeals court had cleared Doe’s path to an abortion one day earlier.
“Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law,” ACLU Legal Director David Cole said. “That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”
ACLU lawyers informed the Trump administration that Doe had an Oct. 25 appointment at an abortion clinic and were under no obligation to delay her abortion so the government could have time to appeal, Cole said.
“It was the ACLU’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,” he said.
In Friday’s petition to the Supreme Court, administration lawyers acknowledged that the legal controversy was moot because there is no longer a fight over Doe’s access to abortion. Even so, they argued, the appeals court decision “should not be left on the books,” where it could help in legal battles by teens in a similar situation.
The ACLU has vowed to continue related litigation challenging Trump administration policies that block unaccompanied immigrants from having an abortion while in U.S. custody.
“We will not stop fighting until we have justice for every young woman like Jane,” Cole said.
The government’s petition to the Supreme Court argued that Doe was allowed to have an abortion based on a misguided ruling by the U.S. Circuit Court of Appeals for the District of Columbia. That ruling should be overturned, they argued, because the government should not be forced to facilitate an abortion for unaccompanied minors in custody after unlawfully entering the United States.
But in a statement accompanying last week’s ruling, Justice Patricia Millett, who was part of the appeals court majority, said it was “unclear why undocumented status should change everything” in Doe’s case.
“Surely the mere act of entry into the United States without documentation does not mean that an immigrant’s body is no longer her or his own. Nor can the sanction for unlawful entry be forcing a child to have a baby,” Millett wrote.
Doe’s case was closely watched for its potential impact on two contentious issues — access to abortion and immigration policy — and Paxton had greeted news of Doe’s abortion by saying he was profoundly disappointed that the Trump administration allowed the procedure to take place without a Supreme Court challenge.
On Friday, Paxton said he supported the appeal, saying it was clear that “ACLU lawyers misled the Department of Justice in order to carry out this heinous act against an innocent unborn life.”