In a petition filed Friday, the Trump administration asked the Supreme Court to throw out the ruling of a lower court which had allowed an undocumented pregnant teenage immigrant to obtain an abortion last week after a bitter legal battle. As the teen has already obtained an abortion, the Department of Justice is now arguing the ruling should be thrown out so as to not create legal precedent for women in similar situations, a move the American Civil Liberties Union has called highly unusual.
In both their petition to the Supreme Court and in a statement to Bustle the Department of Justice accused the ACLU of misleading them as to the timing of Jane Doe's abortion, thereby preventing them from seeking Supreme Court review. This reportedly marks the first time the Trump administration has taken an abortion-related case to the Supreme Court.
"I think this is an extraordinary, highly unusual step for the administration to take," David Cole, the ACLU's national legal director, tells Bustle. "They lost the case. They had time to seek Supreme Court review and they failed to do so in a timely manner. Now they're coming in belatedly to seek what they failed to pursue when they could have. It's an extraordinary step."
The ACLU isn't alone in thinking the Department of Justice's latest move is more than a bit unusual. "It's a remarkably aggressive and unusually angry filing from the solicitor general," University of Texas law professor and CNN legal analyst Steve Vladeck told the cable news network.
As Jane Doe has already obtained an abortion, there's nothing the Department of Justice can do now to reverse or appeal the decision handed down by the federal appeals court. Indeed, in their petition to the Supreme Court they argue many aspects and claims in Jane Doe's case are now "moot."
Instead, the Department of Justice has expressed concerns the ruling could establish a legal precedent for other undocumented women in similar situations. The Department of Justice argued throughout Jane Doe's case that it was the administration's policy not to facilitate access to an abortion procedure for the young undocumented and unaccompanied women in their custody. They claim Jane Doe's case should not "spawn and legal consequences" or be "left on the books for use by these and other plaintiffs."
The ACLU, however, is prepared to push back on the Department of Justice's argument. "That's how law works," Cole tells Bustle, referring to judicial precedents. "Judicial decisions are precedents and guide future actions. The fact that the government lost this case does not give them justification to erase the loss after the fact."
So what's behind the Trump administration's aggressive attempt to clamp down on undocumented immigrants' reproductive rights? According to Cole, it may be at least partially due to the efforts of the director of the Office of Refugee Resettlement (ORR), Scott Lloyd. Along with being listed as a petitioner in documents filed with the Supreme Court on Friday, Lloyd is also the Health and Human Services' official who holds legal custody of detained unaccompanied minors like Jane Doe.
"I think the head of ORR is someone who has a strong opposition to reproductive rights and so even though it's not within his daily wick and it's not within his authority, he is seeking to oppose his personal views on the young women who are subject to his charge," Cole tells Bustle. "But as the court has held in this case, doing so is blatantly unconstitutional."
The Department of Justice did not respond to Bustle's request for additional comment.
The ACLU is also pushing back on claims they misled Department of Justice attorneys about the timing of their client's abortion.
"They were not misled. At no time did we provide them with any false information," Cole tells Bustle. "We were under no obligation — either under the law or under any agreement with them — to tell them the details of her medical appointments, which are something between her and her doctors."
According to Cole, attorneys for the Department of Justice were well aware of the fact Jane Doe had undergone the counseling required by Texas state law on Oct. 19, meaning she could have immediately obtained an abortion from that same doctor.
"The court authorized an abortion as soon as lawfully possible and that's exactly what she got," Cole tells Bustle, adding it is likely the Department of Justice was betting Jane Doe would seek counseling again and be subject to a 24-hour delay.
"The first time Jane Doe got an order from the District Court [in Washington] the government filed an immediate appeal, an immediate stay," Cole says. "They have the ability to do that. They chose not to [this time] and that's their choice. But that's their fault. It's not ours."
In their petition to the Supreme Court, the Department of Justice asked the high court to weigh whether disciplinary action was warranted against the ACLU lawyers working the case. But Cole argues the Department of Justice failed to cite any specific ethical violations or actions made by ACLU lawyers in their petition but rather made broad claims.
"I think our lawyers acted entirely ethically and the request is baseless," Cole tells Bustle. "We think there is no basis whatsoever for discipline or even consideration of discipline.
Despite Department of Justice's latest move, the ACLU has said it will continue to pursue the class action lawsuit Jane Doe's case had originally been filed as. "We are continuing to pursue this case on behalf of all women who might face this kind of treatment in the future until we can end this blatantly unconstitutional policy," Cole tells Bustle. Currently, they are waiting for a trial judge to rule on whether or not the case can proceed as a class action.
As for the petition filed Friday? Cole says it will likely be anywhere from three to five months before the Supreme Court announces if, or how, they'll move forward on the petition.