The American Civil Liberties Union filed a brief with the Supreme Court Monday asking that they dismiss the federal government’s request for review of the D.C. appeals court decision which allowed Jane Doe, an unaccompanied minor, to obtain an abortion in October. The ACLU is denying claims by the Justice Department that ACLU lawyers misled them as to the timing of the abortion to avoid SCOTUS review.
According to the brief, the ACLU argues that government lawyers did not ask the Supreme Court to block Doe’s procedure in time “based on assumptions” they made about the timing of the abortion, “not on the basis of any commitments” from the ACLU lawyers.
DOJ spokesman Devin O’Malley explained in November statement, “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 judgement under review should be vacated, and discipline may be warranted against Jane Doe’s attorneys."
The DOJ petition relates that “when Ms. Doe could not receive counseling from a physician on the evening of October 24, her representatives informed the government that her appointment would be moved to the morning of October 25, pushing the abortion procedure to October 26. The government asked to be kept informed of the timing of Ms. Doe’s abortion procedure, and one of respondent’s counsel agreed to do so.”
It then explains how Jane Doe's attorneys moved her counseling appointment to three hours earlier - and changed it from a counseling appointment to an abortion appointment. The DOJ was informed of the former but not the latter change.
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“That the government failed to seek further review quickly enough is entirely their own responsibility,” Carter Phillips, a Texas attorney, said in statement Monday supporting the ACLU lawyers who defended Doe. He also filed a brief asking the Supreme Court to dismiss the DOJ’s request for review.
The ACLU is attempting to advance the case as a class action to set a precedent forcing the DOJ to allow other pregnant unaccompanied minors to access abortions. The DOJ has asked the Supreme Court to dismiss the class action.
“We won’t stop working until we get rid of that policy to ensure that all young women like Jane can get the care they need,” Brigitte Amiri, a senior staff attorney with the ACLU's Reproductive Freedom Project, said in a statement.
Texas attorney general Ken Paxton and attorneys general from 10 other states filed an amicus curiae brief Monday supporting the DOJ’s request to vacate the federal appeals court’s decision.
“No court has ever before recognized such broad rights for unlawfully present aliens with virtually no connections to the country,” Paxton wrote. “Under the reasoning of the courts below, there will be no meaningful limit on the constitutional rights an unlawfully present alien can invoke simply by attempting to enter this country.”
Arkansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, and West Virginia joined Paxton in the brief.
The immigrant teen obtained an abortion after the full D.C. appeals court ruled in late October that she could access the procedure after the HHS had declined to facilitate it, overturning a previous decision delaying the procedure. Doe was around 15 weeks pregnant when she had the abortion.
The DOJ argued at the time that the decision “sets a dangerous precedent by opening our borders to any illegal children seeking taxpayer-supported, elective abortions.”
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