ACLU Put Client First, Makes Sleepy DoJ Sad

Regardless of your views on abortion, there just wasn’t a hard legal issue that a pregnant, under-age undocumented immigrant on American soil had a right to one. You don’t have to like the rights we afford people here, but them’s the breaks. And so the government sticking its nose into Rochelle Garza’s case was, itself, bizarre and shocking.

Garza, in her capacity as Doe’s court-ordered guardian, is the named plaintiff in Garza v. Hargan, a class-action challenge to what the ACLU calls the Trump administration’s exercise of a “veto power over unaccompanied immigrant minors’ access to abortion in violation of their Fifth Amendment rights,” among other constitutional claims.

The public only learned of Doe’s plight when it made national headlines last month, but by then she had been waiting for nearly a month — since Garza and another local attorney, Marie Christine Cortez, convinced a Texas judge that it was in their client’s “best interest” to let her decide for herself that an abortion was right for her.“

The administration stuck its nose in this mess because their proxy at HHS, Scott Lloyd, who is charged with caring for unaccompanied undocumented minors, is against abortion, and uses his office to convince his charges not to get one. This alone wouldn’t be a bad thing, a nice chat to make sure Doe appreciated her choice and was sure of it. But when she stuck to her choice, the government decided that this was a mountain it was prepared to die on. And die it did.

On Tuesday, a federal appeals court in Washington sided with the girl, sending the case back to a lower court, which immediately ordered the Trump administration to allow the girl to obtain an abortion “promptly and without delay.” The ruling may be only one of many legal chapters to come if the Justice Department decides to appeal to the Supreme Court.

Timing matters with many things, and getting an abortion is one of them. So too is appealing a circuit court’s ruling to the Supreme Court. Doe underwent an abortion on the morning of October 25th. The government had yet to appeal or obtain a stay. That should have been the end of that, but the government didn’t like dying.

In an extraordinary Supreme Court filing on Friday, the Justice Department accused the American Civil Liberties Union of misconduct in the case of an undocumented teenager in government custody known as Jane Doe. The teenager obtained an abortion last month over the government’s objection after an appeals court allowed it.

“The A.C.L.U. misled the United States as to the timing of Jane Doe’s abortion,” said Devin M. O’Malley, a Justice Department spokesman. “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 judgment under review should be vacated, and discipline may be warranted against Jane Doe’s attorneys.”

Calling this “extraordinary” is an understatement. Claiming the ACLU “misled” the government, and should be disciplined, goes well beyond extraordinary. The government doesn’t like the idea of people misleading it, even if misleading people is one of the government’s favorite pastimes. That’s why 18 U.S.C. §1001 is one of its most potent tools. But claiming it was lied to by the ACLU so as to “thwart” review is, as far as I know, unheard of.

Did it happen? Did the ACLU lawyers lie to the government to get them to take an extra day to seek review so that Doe could sneak into the doc’s office and be done before they had a chance to act?

David Cole, the A.C.L.U.’s legal director, said the accusations were baseless.

Baseless can mean the government is factually full of it. Or it can mean their claim is legally wrong. If the lawyers lied to the government so that Doe could effectuate the order of the circuit court without giving the government time to seek review, that presents one issue. If the lawyers didn’t lie, then the issue is very different.

“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,” he said. “After the courts cleared the way for her to get her abortion, it was the A.C.L.U.’s job as her lawyers to see that she wasn’t delayed any further — not to give the government another chance to stand in her way.”

This is a critical, if slightly tangential, point, too often misunderstood by the “officer of the court” and “cause” crowds. The ACLU represented Doe. Not justice, fairness or abortion. As attorneys for Doe, its job was to achieve their client’s goal. But does that mean they can do so by any means possible, including lying to the government?

“Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers 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 anticipation of Doe having to use a new doctor because the prior doc, who had fulfilled the requirements of Texas law, was unavailable, made October 26th the expected date of the abortion. But then the first doctor became available, circumstances changed and the abortion could be performed on the 25th. The ACLU didn’t alert the government to the change? The ACLU didn’t hold off to give the government a chance to file for review? The government got caught flat-footed because it assumed it could rely on the anticipated date of the 26th?

Too bad. The ACLU didn’t “promise” the government that nothing would happen until the 26th, and it surely had no duty to facilitate the government’s appeal rather than their client’s accomplishing her goal. That the Department of Justice isn’t used to lawyers not kissing their butts lest they get annoyed for being made to look foolish and lazy, and called for discipline, creates no duty on the part of a lawyer to accommodate the government’s delay and failure.

The ACLU didn’t mislead anyone; they just didn’t alert the government to a change in circumstance, while the government delayed and blew the timing. That they’ve gone nuclear by taking this to the Supreme Court to seek vindication for their embarrassment means someone ought to be disciplined. Not for lying, but for frivolous action. The ACLU did its job by serving its client within the bounds of the law.

11 thoughts on “ACLU Put Client First, Makes Sleepy DoJ Sad

  1. Richard Kopf


    Three reactions.

    First, consider the following portion of our Local Civil Rule 7.3: “An agreement, stipulation or consent between parties is binding only if (a) in writing and signed by the parties or their attorneys, or if oral, made a part of the record and (b) approved by an appropriate court order or ruling if required. ” This rule is in place precisely so disputes like the one mentioned in your post do not arise. DOJ’s counsel should have known better than to rely upon an informal discussion with opposing counsel when making a very important decision.

    Second, assuming there was no affirmative representation that the abortion would not be performed sooner if possible and there was a change in circumstances (the original doctor became available earlier than expected) I see no basis for discipline either.

    Third, despite the foregoing, if I were counsel for the ACLU, I would feel slightly slimy.

    All the best.


    1. SHG Post author

      If the choice is feeling slightly slimy or failing the client, I pick slimy every time. That said, I wouldn’t feel slimy about this at all.

  2. TheSiegeTech

    Uhm.. What about this case has 5th Amendment implications? Or, I guess more properly asked, how does abortion interact with the 5th?

      1. WFG

        The Fifth Amendment is referenced in the first paragraph in the first block quote. The linked ACLU brief notes that the 5A’s right to privacy is implicated (p.13-14).

        Following links is so much work, SHG.

        1. WFG

          Just to clarify, I meant the last sentence not as any kind of slight against our host, but in commiseration for the first comment. After hitting “post comment,” I realized it would probably be taken the wrong way.

          1. SHG Post author

            You didn’t hurt my feelz. My reply (which also would have done better with more explanation) was directed to whether he had a point. The complaint is replete with 5th A claims. So? Is he raising an issue or is he asking to be taught Con Law in the comments?

  3. B. McLeod

    DOJ should have fully been watching for this, although I doubt they would have ever been able to stop it with full knowledge of the situation. When there is no stay, nothing is stayed, and the court wouldn’t have given them a stay had they asked. That isn’t rocket science, and I don’t see how they could have been surprised. Obviously, the abortion was not only what the client wanted, but vastly in furtherance of ACLU’s desire (and likely the court’s own desire) to moot the case while the existing opinions stand for making the U.S. a shining beacon for tourist abortion. Give us your tired, your poor, your huddled masses yearning to cap a fetus. If DOJ really thought they could have stopped it, they should have been watching. Personally, I don’t think they could have stopped it, and I see no point taking their frustration out on opposing counsel.

    1. SHG Post author

      They should never have stuck their nose in the first place, but having done so, they desperately wanted to avoid humiliation of getting whupped (again). Sucks to be them.

  4. Zoe Brain

    The DOJ was obviously trying to run the clock out, delaying and appealing until the point became moot, as such late abortions are prohibited by Texas law.

    We’ve seen this many times before, cases involving civil rights of grade schoolers delayed and appealed until long after they’ve left school.

    1. SHG Post author

      That would be the most likely tactic, wait until it’s too late to perform the abortion. Another reason why the ACLU was right to seize the opportunity regardless of anything else.

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