ACLU Responds to Trump Administration Request to Supreme Court to Dismiss Jane Doe Abortion Case

WASHINGTON — The American Civil Liberties Union filed a brief today in the Jane Doe abortion case, Hargan v. Garza, opposing the Trump administration’s request that the Supreme Court vacate the lower court decision that cleared the way for Ms. Doe’s abortion and dismiss her claims.

The ACLU brief argues that the government’s request is meritless because it does not identify any legal issue worthy of review and asks for the dismissal of claims that the lower courts have not yet had a chance to rule on. It also rebuts the government’s baseless suggestion that disciplinary action may be warranted against ACLU lawyers, explaining that the ACLU lawyers were “faithfully fulfilling their ethical duties to their client.”

“The solicitor general has filed extraordinary and baseless complaints to distract from his own failure to act promptly in response to an adverse decision of the court of appeals,” said Carter G. Phillips of the law firm Sidley Austin LLP, the counsel of record on today’s brief. “The ACLU’s lawyers acted in the best interest of their client and in full compliance with the law. That the government failed to seek further review quickly enough is entirely their own responsibility.”

Phillips has argued more cases before the Supreme Court than any other lawyer while in private practice.

For more than a month, the Trump administration unconstitutionally barred Doe, an unaccompanied immigrant minor in federal custody at a government-funded shelter, from obtaining an abortion. After weeks of litigation, culminating in a decision from the full D.C. Court of Appeals, the ACLU obtained a court order requiring the government to immediately permit Doe to end her pregnancy.

The government could have sought an immediate stay from the Supreme Court, but did not, so Doe obtained her abortion the next morning, in accordance with the court’s order.

Under pressure from abortion opponents, nine days after Doe had her abortion, the government asked the Supreme Court to vacate the D.C. Circuit court’s ruling; dismiss all the claims related to abortion access for unaccompanied immigrant minors; and consider discipline against ACLU lawyers.

Legal experts described the brief as baseless, irregular, and alarming.

Marty Lederman, former deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel, said the brief deviated so far from the traditional standards and practices of the solicitor general’s office that it is “difficult to avoid the conclusion that that it is fundamentally a press release, for an audience other than the Justices of the Supreme Court itself.”

David Luban, a law professor at Georgetown and author of several books on legal ethics, described the government’s request as alarming. “At best, the Department of Justice accusations are an attempt to deflect responsibility from themselves to their opponents. At worst, it is a conscious effort to deter other who dare to challenge the Trump administration,” Luban said.

The government’s treatment of Jane Doe is part of a new policy by the Trump administration to block access to abortion care for young immigrants in detention. The ACLU’s lawsuit against this policy is continuing.

“The Trump administration blocked Jane Doe from accessing abortion for a month,” said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. “Although we were able to achieve justice for Jane, the government still enforces a cruel and unconstitutional policy of coercing young women in their custody to carry their pregnancies to term. We are won’t stop working until we get rid of that policy to ensure that all young women like Jane can get the care they need.”

More information about the case, Hargan v. Garza, is at: https://www.aclu.org/cases/garza-v-hargan-challenge-trump-administrations-attempts-block-abortions-young-immigrant-women

The ACLU Brief is at: https://www.supremecourt.gov/DocketPDF/17/17-654/22502/20171204174233978_17-654%20Hargan%20BIO.pdf