The Trump Administration asked the Supreme Court on Friday to restore officials’ power to block any abortion for pregnant teenagers now in government custody after entering the U.S. illegally. It attempted to use that power last month to try to persuade an undocumented 17-year-old not to end her pregnancy, but that failed.
In a high-profile case involving a Central American teenager identified only as “Jane Doe,” government lawyers made the unusual suggestion that the lawyers for that young woman be punished for thwarting the government’s efforts in her case – including a planned move to take the dispute to the Supreme Court earlier.
Two lower federal courts cleared the way for “Jane Doe” to have her 15-week pregnancy ended, and that was done in a clinic in south Texas early in the morning of October 25. Although her legal claim is no longer in issue, her case continues because she has asked a federal judge to allow her to continue the case on behalf of all undocumented pregnant teenagers being detained by the government – a group recently estimated at about 18.
In its new plea to the Supreme Court, the Trump Administration urged the Justices to nullify the lower court rulings and dismiss the case, including the claim that the case continue as a lawsuit for all pregnant teenagers in detention.
While some of the lower court judges who acted in her case declared that she had a constitutional right to abortion, the Trump legal team has not taken an official position on that question. Instead, it has argued that it cannot be compelled to “facilitate” a pregnant teenager’s abortion. Its policy apparently does not extend to detained adult women who seek an abortion.
Texas state officials, who strongly oppose abortion, are expected to enter the case now in the Supreme Court to urge the Justices to rule that a non-citizen who has entered the country illegally does not have a constitutional right to terminate a pregnancy. Those officials had already written a supporting brief earlier, when they had expected the Trump team to rush the “Jane Doe” case to the Justices last month. They voiced “profound disappointment” that the abortion had been completed.
In taking the case to the Justices Friday, the Administration phrased the legal question as solely one of dismissing the case as no longer a genuine controversy because the abortion has been performed. But it seeks to gain the Court’s permission to maintain its policy of not “facilitating” a detained teenager’s abortion.
When the case was in lower courts, the new filing said, “it presented the question whether the government must facilitate access to abortion that is not medically necessary to preserve the life or health of an unaccompanied minor who was apprehended unlawfully entering the United States, who declines to request voluntary departure to her home country, who has not yet identified a qualified sponsor to whom she can be released, and who thus is in the government’s custody.”
Although that is the legal issue it said had been at stake, it made clear that what it most wanted was the Court’s new approval for “policies favoring life over abortion” and for the view that the government “is not obligated to facilitate abortion.” That approval, it said, came in prior rulings by the Court.
The document also said that the Court had previously ruled that the government may follow its policies on life vs. abortion so long as it “does not place an undue burden in a woman’s path.” It said it had not done so with “Jane Doe.”
The young woman could have left the detention center, the filing said, by voluntarily asking to be returned to her home country, or by working with officials to find a suitable sponsor so she could live in the U.S. Since those options were open to her, it added, “the government was under no obligation to facilitate Ms. Doe’s abortion.”
Much of the new petition was made up of a detailed recital of the facts in the case as it unfolded in lower courts and at the south Texas abortion clinic, all of which was intended to show that the young woman’s lawyers had misled the government about the final plans to complete the abortion at the clinic.
Although it said government lawyers had told the attorneys for “Jane Doe” that it was planning to ask the Supreme Court to step in to postpone the lower courts’ decisions, the petition said the government was stymied in that effort by the other lawyers’ failure to keep the government informed as they had promised.
It suggested that the Court itself might initiate a punishment proceeding against the American Civil Liberties Union lawyers who represented “Jane Doe,” or that the Court as an alternative might refer the case to the official supervisors of lawyers’ ethics in their home state. At a minimum, the filing said the Court should seek an explanation from those lawyers.
Responding to the new filing, the ACLU said in a statement that the Administration “has gone to astounding lengths to block this young woman from getting an abortion. 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.”
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
