On Friday, the Department of Justice filed an astonishing appeal with the Supreme Court, urging the justices to intervene in the Jane Doe case that seemed to have ended last week. Doe, an undocumented 17-year-old in a federally funded Texas shelter, was denied abortion access by the Trump administration, which argues that it can force undocumented minors to carry unwanted pregnancies to term. On Oct. 24, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Doe must be allowed to terminate her pregnancy, which she did the next day. Now the DOJ is urging the Supreme Court to vacate that decision—and punish the ACLU attorneys who represented Doe.
Make no mistake: With this filing, Attorney General Jeff Sessions’ Justice Department has declared war on attorneys and groups who dare to oppose it in court.
Because Doe obtained her abortion, Friday’s appeal might seem pointless, presenting no live controversy for the justices to adjudicate. But the DOJ has three goals here. First, it wants the Supreme Court to punish the D.C. Circuit for issuing a decision that it believes to be egregiously wrong by wiping the entire ruling off the books. Second, the DOJ wants to eradicate a decision that sets a legal precedent it despises. Doe’s lawsuit was initially brought as part of a class action, and the ACLU will continue to litigate its broader claim against the Trump administration’s absolute bar on abortion access for undocumented minors. As long as the D.C. Circuit’s decision remains on the books, those lawsuits are almost guaranteed to succeed. The Justice Department wants it gone so that it can litigate this issue anew.
Third, and most importantly, Friday’s appeal is a flagrant effort to crucify the individual attorneys who represented Doe, and to terrify likeminded lawyers into acquiescence. The DOJ thus asks the Supreme Court to force Doe’s lawyers to “show cause why disciplinary action should not be taken” against the ACLU—either by the court itself or by state bars—for “material misrepresentations and omissions” designed to thwart an appeal.
In other words, the DOJ is using the full weight of a government agency to threaten professional ruin upon the lawyers who defended Jane Doe’s constitutional right to abortion access.
The DOJ claims that after the D.C. Circuit ruled in Doe’s favor on Oct. 24, government attorneys believed they had until Oct. 26 until Doe got her abortion. Under Texas law, women must obtain “counseling” at least 24 hours before terminating her pregnancy, and this counseling must be performed by the same physician who performs the procedure. Doe had already received this counseling from a Texas doctor when the D.C. Circuit issued its decision. According to the DOJ, ACLU lawyers told the government that this physician would not be working and that Doe would receive another counseling appointment on the morning of October 25, and get the abortion to October 26. Government lawyers asked to be kept informed of the timing of the procedure, and they claim that ACLU lawyers agreed to comply with their request. They also say that the DOJ planned to ask for a stay on Oct. 25—but on that same morning, ACLU attorneys arranged for Doe to visit the doctor who had already counseled her, allowing him to perform the procedure.
Put differently, the government argues that the ACLU owed government lawyers a notification of when Doe’s legal abortion would occur. The end goal here seems to have been to try to continue to block the abortion until it would be illegal to terminate, even though she had secured an unqualified right to do so. (Doe was 16 weeks pregnant by that point; Texas bans abortion after 20 weeks, and the government had already delayed the abortion by a month.) The DOJ also claims that Doe’s lawyers had the responsibility to keep answering their phone calls to update them on her status: “Efforts to reach respondent's counsel were met with silence, until approximately 10 a.m. EST, when one of her lawyers told the government that Ms. Does had undergone an abortion.”
What really seems to enrage the DOJ, however, is that Doe didn’t attend a second counseling session—which would have been duplicative and wasteful, and caused her yet more needless delay—because the physician who counseled her the first time later agreed to perform the procedure. If ever there were an indicator of the un-distilled bad faith at work here, it’s government lawyers insisting that a non-person with no rights undergo a second round of the same counseling, not for the purposes of medical advice, but so that they would have more time to thwart her choice.
These allegations of wrongdoing are laughably flimsy and outwardly vindictive. Even under the DOJ’s contorted narrative, it’s obvious that the ACLU simply acted efficiently, and the Trump administration is bitter and embarrassed that it lost. The government argues that the ACLU “at least arguably had an obligation to notify the government” that Doe would terminate on Oct. 25—an “incredibly significant development.” But that’s just not how this works. The government had sufficient time to ask the Supreme Court to stay the D.C. Circuit’s decision before Doe terminated. In fact, Texas was already prepared with its own amicus brief backing the DOJ. But the government didn’t act in time. And it’s not the ACLU’s fault that its client secured her constitutional rights while the government dallied in its efforts to exert control of her reproductive capacities. This week-late effort to blame the ACLU for its “arguable” responsibility to ensure that the government could continue to harm their client is not just an effort to save face, but also an attempt to warn attorneys that zealous effectuation of their duties to the clients will now be punished.
The Justice Department’s crusade against the ACLU is especially galling in light of the fact that there was sanctionable misconduct here—on the part of the government itself. Scott Lloyd, the official who blocked Doe and other minors from abortion access, likely violated a long-standing federal settlement agreement in his anti-abortion crusade. Under this agreement, undocumented minors like Doe must be allowed access to family planning services, which Lloyd intentionally and repeatedly withheld. He even instituted his anti-abortion views as official government policy in obvious violation of the federal settlement.
If anyone deserves to be punished here, it is surely Lloyd, who flouted the law for purely ideological purposes. But instead of investigating its own employee for potential misconduct, the government is going after Doe’s ACLU attorneys for defending her constitutional rights. This is a shocking assault on the nation’s civil rights attorneys, and an unprecedented effort by the DOJ to slander and shame those attorneys who defend their clients’ rights against the government’s abuse of the law. After today, lawyers who question the Trump administration’s legal views should be aware that they have targets on their backs.