More than a week after an undocumented teenager under federal custody in Texas received an abortion that became the subject of an intense court battle, the Trump administration asked the U.S. Supreme Court Friday to invalidate a lower court ruling that allowed the procedure to move forward.
In the petition, the U.S. Department of Justice argued that the girl's attorneys misled the federal government on the timeline for the girl's abortion, which kept them in the dark and prevented them from appealing to the U.S. Supreme Court in time.
Jane Doe, as she is known in court filings, had the procedure on Oct. 25, weeks after she originally received legal authorization from a Texas judge to do so. But the Brownsville shelter where she was living under federal custody wouldn't let her leave to go to the abortion clinic, prompting a month-long legal battle between the American Civil Liberties Union and the Trump administration.
On Oct. 24, the U.S. Court of Appeals for the D.C. Circuit decided that Jane Doe could access abortion services immediately. Under Texas law, she had to undergo a counseling appointment by the same doctor who would perform the abortion at least 24 hours before the procedure. Doe had already gone through a counseling appointment earlier in the month after a district court ruling had allowed her to move forward with the procedure. But another appeal in the case blocked Doe from getting the abortion the next day as planned.
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After the U.S. Court of Appeals for the D.C. Circuit ruled the following week that Doe could indeed have the procedure, her legal team scheduled it on the morning of Oct. 25 and purposely arranged for the same doctor to handle it. According to Doe's legal team, that meant a second counseling session wasn't needed, allowing Doe to avoid another 24-hour delay.
That is the timeline the Justice Department argues was misleading. “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," said Devin O'Malley, a spokesman for the Department of Justice, in a statement.
The ACLU denies the accusation, arguing the Trump administration wants to blame them after failing to appeal with the Supreme Court as soon as the ruling was issued on Oct. 24.
"We were authorized under the court order to obtain an abortion for her as soon as lawfully possible," said ACLU Legal Director David Cole in an interview with The Texas Tribune. "They knew and it was public record that she had obtained counseling on Oct. 19. So they knew that if we could get the doctor back to the clinic, she could get the abortion on Oct. 25. But nonetheless, they sat on their rights, did not seek a stay of the order and that's their own fault, they can't put that blame on us."
The Department of Justice is asking the U.S. Supreme Court to invalidate the Court of Appeals ruling that allowed the teenager to immediately access abortion services, sending the case back to district court. The Trump administration is also asking the Supreme Court to direct that district court to dismiss all claims for other pregnant unaccompanied minors in a similar situation to Jane Doe.
"They are seeking to erase the lower court decision as if it never happened," said Cole, explaining that, if that happens, the ruling couldn't be used as precedent on similar cases.
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Cole said the ACLU will file a response to the U.S. Supreme Court, which will then decide whether or not to hear the case.
In the petition, the Trump administration suggests the U.S. Supreme Court seek an explanation from Doe's legal team regarding the "highly unusual chain of events" and argues that Doe's attorneys could be subject to disciplinary actions.
“The government recognizes that respondent’s counsel have a duty to zealously advocate on behalf of their client, but they also have duties to this Court and to the Bar. It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted," the Trump administration's attorneys wrote in the petition.
Texas Attorney General Ken Paxton, who with other states filed several amicus briefs on the case, praised the Trump administration for pursuing the issue.
"It seems very clear to me that ACLU lawyers misled the Department of Justice in order to carry out this heinous act against an innocent unborn life," said Paxton in a statement Friday. "I hope the Court will hold the responsible ACLU lawyers accountable for their conduct.”
Read related Tribune coverage:
"This is my life, my decision," an undocumented teen in Texas said last week after getting an abortion she had been seeking for weeks. [Full story]
U.S. Rep. Joaquin Castro, along with immigrant rights and civil liberty groups, is calling for the federal government to release an undocumented 10-year-old girl who was placed in an immigration facility following surgery. [Full story]