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Government seeks to vacate D.C. Circuit abortion ruling, asks for disciplinary action against lawyers

“Jane Doe,” the 17-year-old pregnant teenager who was caught trying to enter the United States illegally, had an abortion nine days ago, on October 25. A ruling by the full U.S. Court of Appeals for the District of Columbia Circuit the previous day had cleared the way for Doe’s abortion after the federal government – citing a desire to avoid facilitating abortions – had refused to allow her to leave the shelter where she was being held in custody. Today the federal government went to the Supreme Court, where it asked the justices to vacate the D.C. Circuit’s ruling, which would mean that the decision would no longer serve as legal precedent. And in a highly unusual move, the government also suggested that the justices should sanction Doe’s attorneys for misconduct that, the government argued, thwarted it from seeking Supreme Court review of the decision in the first place.

In its 29-page petition for review (which was signed by Solicitor General Noel Francisco and Deputy Solicitor General Jeffrey Wall but not by any career lawyers in the Office of the Solicitor General), the government chronicled the events leading up to Jane Doe’s abortion in some detail. After the D.C. Circuit ruled on Doe’s case on October 24, the government explained, lawyers for the United States believed – based on representations from Doe’s attorneys – that Doe would have an appointment with a doctor for counseling about the abortion on October 25, to be followed by the abortion itself on October 26. Relying on those representations, the government continued, as well as an agreement with Doe’s lawyers to keep them informed about the timing of Doe’s abortion, it planned to file a brief on October 25 asking the Supreme Court to put the D.C. Circuit’s ruling on hold.

According to the government, Doe’s attorneys then changed the plans without telling them: Instead of Doe’s receiving counseling on October 25 and an abortion on October 26, the abortion was performed early on the morning of October 25 – before the government could go to the Supreme Court to block it. On October 26, Francisco wrote to David Cole, the legal director of the American Civil Liberties Union, which represented Doe, to express his concern that the ACLU’s attorneys may have “misled the Department of Justice about when Jane Doe would undergo an abortion, thereby preventing the Department from seeking Supreme Court review.”

Cole responded that the ACLU’s attorneys had “never agreed to provide the government information about the nature of Ms. Doe’s appointments or to give the government advance notice of the imminence of her abortion.”

With today’s filing, the government asked the Supreme Court to do two things. First, it urged the justices to vacate the D.C. Circuit’s ruling in favor of Jane Doe and to instruct the D.C. Circuit to send the case back to a federal trial court for it to dismiss the claims relating to “the government’s treatment of pregnant unaccompanied minors” – because Jane Doe no longer is one. That is the correct next step, the government contended, because the government’s efforts to appeal the D.C. Circuit’s decision became moot as a result of the conduct of Doe’s lawyers.

Second, the government suggested that the justices “may wish to issue an order to show cause why disciplinary action should not be taken against” Doe’s attorneys for “what appear to be material misrepresentations and omissions to the government designed to thwart this Court’s review.” At a minimum, the government continued, “this Court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”

In a statement issued today, Cole provided a preview of the arguments that Jane Doe’s lawyers are likely to make in opposing Supreme Court review. As Doe’s lawyers, Cole explained, their job was to “see that she wasn’t delayed any further — not to give the government another chance to stand in her way.” “Our lawyers,” Cole continued, “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 ACLU’s full brief in opposition will be due in approximately one month.

This post was originally published at Howe on the Court.

Cases: Azar v. Garza

Recommended Citation: Amy Howe, Government seeks to vacate D.C. Circuit abortion ruling, asks for disciplinary action against lawyers, SCOTUSblog (Nov. 3, 2017, 1:23 PM),