The Trump administration on Friday asked the Supreme Court to wipe away a lower court opinion from last week that cleared the way for an undocumented 17-year-old immigrant, who is currently in US custody, to get an abortion.
The Justice Department also says that the teen’s lawyers at the ACLU misled the government about the timing of the abortion.
Although the teen has already gotten the procedure, the Justice Department says it is concerned that the ruling by a federal appeals court based in Washington might be used for similarly situated women.
The filing marks the first time the Trump administration has gone to the Supreme Court on an abortion-related case, and the briefs outline in dramatic fashion the government’s take on the events that lead to the teen – “identified as Jane Doe or J.D.” – to obtaining the procedure.
The issue is not directly whether a woman has a right to an abortion. Instead, the Justice Department argues that it does not have to facilitate access to an abortion of an unaccompanied minor who was apprehended when she was unlawfully seeking to enter the United States.
“It’s a remarkably aggressive and unusually angry filing from the solicitor general, and, among other things, could turn a small, technical dispute into one of the more contentious cases the court considers this term,” said CNN legal analyst and University of Texas law professor Steve Vladeck.
Argument over timing of abortion
In the unusual filing, the administration also alleged that the teen’s lawyers at the ACLU misled the Department of Justice about the timing of the abortion.
“Although Ms. Doe’s representatives informed the government of the change in timing, they did not inform the government of the other two developments – which kept the government in the dark about when Ms. Doe was scheduled to have an abortion,” Solicitor General Noel Francisco wrote.
He asked the justices to vacate the judgment of the appeals court and remand the case to the district court “for dismissal of all claims for prospective relief regarding pregnant unaccompanied minors.”
On October 24, after lower courts held that the government could no longer block the abortion, it was led to believe that the abortion would occur on October 26 and that the government “asked to be kept informed of the timing” of the procedure, he said. “Based on those representations,” his office informed the Supreme Court’s clerk’s office that it would file an appeal on the morning of October. Instead, Francisco writes, the timing of the appointment was changed until early in the morning of October 25.
ACLU Legal Director David Cole said the Justice Department is solely to blame for any issues over timing.
“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,” Cole said in a statement.
“Now, because they were unable to stop her, they are raising baseless questions about our conduct,” he added. “That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”
Jane Doe came across the border illegally in early September and learned she was pregnant while in the legal custody of the Office of Refugee Resettlement, a division of the Department of Health and Human Services.
Because Texas law requires parental consent or a judicial waiver before an abortion for a minor, Doe, with the assistance of a court-appointed guardian, received the necessary judicial permission.
The federal government, however, had declined to transport her to the clinic.
Initially, a three-judge panel of an appeals court in Washington delayed the abortion in order to give officials enough time to find the teen a sponsor who could take over as a legal custodian. But that order was reversed on October 24 by a larger panel of judges on the same court.
After Doe obtained the abortion, Attorney General Jeff Sessions reacted angrily and later told Fox News that the procedure was performed at 4:30 a.m., before his lawyers could get to court.
“We are very upset about it,” he said.
In 1992, the Supreme Court affirmed the right to an abortion and held that the government cannot impose an “undue burden” on a woman seeking an abortion.