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 Does 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. Circuits 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 Does 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 Does abortion in some detail. After the D.C. Circuit ruled on Does case on October 24, the government explained, lawyers for the United States believed based on representations from Does 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 Does lawyers to keep them informed about the timing of Does abortion, it planned to file a brief on October 25 asking the Supreme Court to put the D.C. Circuits ruling on hold.

According to the government, Does attorneys then changed the plans without telling them: Instead of Does 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 ACLUs 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 ACLUs attorneys had never agreed to provide the government information about the nature of Ms. Does appointments or to give the government advance notice of the imminence of her abortion.

With todays filing, the government asked the Supreme Court to do two things. First, it urged the justices to vacate the D.C. Circuits 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 governments treatment of pregnant unaccompanied minors because Jane Doe no longer is one. That is the correct next step, the government contended, because the governments efforts to appeal the D.C. Circuits decision became moot as a result of the conduct of Does 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 Does attorneys for what appear to be material misrepresentations and omissions to the government designed to thwart this Courts 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 Does lawyers are likely to make in opposing Supreme Court review. As Does 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 ACLUs full brief in opposition will be due in approximately one month.

This post was originally published at Howe on the Court.