New York Times

Justice Department Accuses A.C.L.U. of Misconduct in Immigrant’s Abortion Case

November 5. 2017

by Adam Liptak

WASHINGTON — In an extraordinary Supreme Court filing on Friday, the Justice Department accused the American Civil Liberties Union of misconduct in the case of an undocumented teenager in government custody known as Jane Doe. The teenager obtained an abortion last month over the government’s objection after an appeals court allowed it.

“The A.C.L.U. misled the United States as to the timing of Jane Doe’s abortion,” said Devin M. O’Malley, a Justice Department spokesman. “After informing Justice Department 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. 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.”

David Cole, the A.C.L.U.’s legal director, said the accusations were baseless.

“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. “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.”

“This administration has gone to astounding lengths to block this young woman from getting an abortion,” Mr. 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 appeals court, the United States Court of Appeals for the District of Columbia Circuit, ruled in favor of the teenager on Oct. 24. According to the Justice Department’s brief, lawyers for the A.C.L.U. initially indicated that the abortion would take place on Oct. 26. On that understanding, the department’s brief said, it had planned to file an emergency application for a stay in the Supreme Court on Oct. 25.

Under Texas law, women must attend a counseling session at least 24 hours before having an abortion with the doctor who will perform the procedure. The teenager had attended such a session on Oct. 19, but the doctor she consulted was initially thought to be unavailable to perform the procedure.

Had a new doctor been required, the teenager would presumably have received counseling on Oct. 25 and obtained the abortion on Oct. 26. It turned out that the original doctor was available after all, and the teenager received the abortion early in the morning on Oct. 25.

In its brief, the Justice Department asked the Supreme Court to vacate the appeals court’s ruling, wiping it out as a precedent. It also asked the justices to consider punishing the A.C.L.U.’s lawyers.

“In light of the extraordinary circumstances of this case,” the brief said, “the government respectfully submits that this court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel — either directly by this court or through referral to the state bars to which counsel belong — for what appear to be material misrepresentations and omissions to government counsel designed to thwart this court’s review.”

Ken Paxton, Texas’s attorney general, issued a statement supporting the Justice Department. “It seems very clear to me,” he said, “that A.C.L.U. lawyers misled the Department of Justice to carry out this heinous act against an unborn innocent life. I hope the court will hold the responsible A.C.L.U. lawyers accountable for their conduct.”

Mr. Cole, the A.C.L.U. lawyer, said the Justice Department’s filing represented a skirmish in a larger battle. “We won’t let this distract us from the real issue here,” he said, “which is that there are many more young women like Jane Doe out there who are still unable to get the care they need because of the Trump administration’s unconstitutional policies.”