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.