DOJ Strikes Back at ACLU Over Undocumented Jane Doe’s Abortion

Although Jane Doe has obtained an abortion, the Justice Department wants to make sure the ACLU cannot use the case for its larger legal abortion strategy.

(photo: Unsplash. )

The Department of Justice is determined to have the last word in the legal case involving an unaccompanied 17-year old in federal custody known as Jane Doe, and the abortion of her child.

The federal government is asking the U.S. Supreme Court to prevent Doe’s American Civil Liberties Union (ACLU) and allied attorneys from using her case as legal guidance for a bigger class-action lawsuit that aims to compel federal authorities to facilitate the abortions of unaccompanied migrant minors in their care. The government also wants Doe’s ACLU attorneys sanctioned for allegedly committing legal subterfuge in their efforts to make sure Doe had her abortion before the government could appeal to the high court. [See the Register’s coverage, Undocumented Jane Doe’s Abortion Bellwether to Much Larger Legal Battle]  

“The ACLU misled the United States as to the timing of Jane Doe’s abortion,” Justice Dept. spokesman Devin O’Malley said in a statement provided to the Register.

O’Malley explained that Justice Department attorneys had been told Jane Doe’s abortion was scheduled for Oct. 26. However, instead Doe’s abortion was actually scheduled for the following morning — taking place at 4:30 a.m. on Oct. 25 — “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,” he said.

The Justice Dept.’s brief alleges Doe’s attorneys deliberately deceived the U.S. government about key facts surrounding Doe’s abortion: first, they told Justice attorneys that because Doe could not receive on Oct. 24 — the day before the scheduled abortion on Oct. 25 — the abortion had been moved up to Oct. 26. Doe’s attorneys also agreed to keep the Justice Department informed on the timing of Doe’s abortion.

The brief states that based on these representations the Justice Department informed the Supreme Court’s Clerk’s Office and Doe’s counsel that they would file a stay by the morning of Oct. 25.

According to the government’s brief, what followed next was a bait-and-switch, made possible by Doe’s attorneys leaving out the fact that Doe could go through with the abortion at any time, because she already received the mandated abortion counseling under Texas law a week before:

“At that point, by their own account, Ms. Doe’s representatives did three things: they secured the services of Ms. Doe’s original physician (who had provided counseling the previous week), moved her appointment from 7:30 to 4:15 a.m. on the morning of October 25, and changed the appointment from counseling to an 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.”

The Justice Department understands that Jane Doe’s case is going to be used by the ACLU to smooth the way for its real prize: a class-action lawsuit intended to establish the precedent that unaccompanied minors apprehended at the border have a constitutional right to abortion that must be facilitated by the federal government.

The brief requests the high court to vacate the judgement of the full D.C. Court of Appeals “with instructions to remand to the district court for dismissal of all claims for prospective relief regarding pregnant unaccompanied minors.”

The Justice Department also not-so-subtly invited the Supreme Court to penalize Doe’s ACLU and ACLU-allied attorneys for their actions in this case.

“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,” it stated. “At the least, this Court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”