After weeks of delay, the Supreme Court is expected to make a decision soon on an unusual request from the Trump administration in a politically charged abortion case.
In early November, Solicitor General Noel Francisco asked the court to toss out a D.C. Circuit Court of Appeals order that allowed an unaccompanied immigrant teen in federal custody to obtain an abortion. But in a twist, the solicitor general has also asked the court to punish the opposing attorneys at the American Civil Liberties Union (ACLU).
Francisco argued the 17-year-old’s lawyers improperly snuck her off in the early morning hours — 4:15 a.m. — to get an abortion before the government could appeal the decision to the Supreme Court.
The request has been pending before the justices for months, which could signal there’s a fight happening behind the scenes, experts say.
“It’s quite possible that the request has provoked dueling opinions from across the bench that are not just dueling in substance, but whether the Supreme Court should be addressing it in the first place,” said Steve Vladeck, a professor at the University of Texas at Austin School of Law, who argued a case before the justices earlier in the term.
The justices have relisted the case for consideration at conference 15 different times.
Daniel Epps, an associate professor of law at Washington University School of Law, said it’s strange that the court is taking a long time to decide on a fairly simple petition.
“This is getting pretty weird,” Epps said.
In Texas, where the teen was being held, state law requires that women receive counseling at least 24 hours before obtaining an abortion and that the counseling be done by the same doctor who will perform the procedure.
But the government says it was misled about the timing of the counseling and abortion appointments for the minor, referred to in court as Jane Doe. The government thought the teen was getting counseled at 7:30 a.m. on Oct. 25 and therefore would not have the procedure until Oct. 26.
But when the same doctor that had already counseled Doe on Oct. 19 became available on Oct. 25, her counseling appointment changed to an appointment for an abortion and was moved to an earlier time without the government being told.
Francisco claims the court’s order requiring the government to make Doe available for pre-abortion counseling and the procedure is moot, given that Doe had the abortion. The government had originally kept Doe from leaving the facility for her appointments, arguing it should not be forced to facilitate an abortion that is not medically necessary for an unaccompanied minor who entered the country illegally and was in federal custody.
In his petition to the court, Francisco argued the ruling should be vacated under a 1950 court precedent known as the Munsingwear doctrine. That doctrine holds that “a judgment, unreviewable because of mootness, should not be permitted to spawn any legal consequences.”
The Legal Center for Defense of Life, a New Jersey anti-abortion legal nonprofit, argued in a friend of the court brief siding with the government that the court’s ruling could set a precedent for future cases if it’s not tossed out.
“Illegal aliens do not have a right to have an abortion in the United States,” the group’s attorney, Andrew Schlafly, argued in the brief. “Yet the decision below implicitly and improperly invented such a new right where none exists.”
In addition to admonishing the ACLU attorneys, Francisco has asked the court to remand the case back to the lower court with instructions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.
Doe has filed a class-action lawsuit in the federal district court challenging the government’s policy of blocking unaccompanied children from obtaining an abortion. That challenge brought with another teen, known as Jane Roe, is on behalf of all pregnant immigrant minors in federal custody.
That case is currently making its way through the courts.
Brigitte Amiri, Doe’s attorney and deputy director of the ACLU’s Reproductive Freedom Project, said it would be extraordinary if the court granted the relief Francisco has asked for. She said there’s no basis for his request.
“I think the petition is really out of bounds in what it’s asking of the court and the allegations of misconduct it alleges against myself and my colleagues,” she said.
Amiri and the ACLU attorneys in the case argued in briefs that an order should only be vacated if it would block an opposing party from filing an appeal in future litigation. Since it doesn’t in this case, Amiri said, the ruling should be left in place.
As for their conduct, the attorneys said it was the government’s own fault for not appealing the decision in time.
“If government counsel wished to ensure that they would have an opportunity to seek a stay before the abortion procedure, they could and should have requested such an assurance from respondent’s counsel and, if they did not receive a sufficiently clear commitment, they could and should have immediately sought relief from this Court,” they wrote.
But Schlafly told The Hill in an email he hopes the court issues a strongly worded statement admonishing the attorneys for facilitating a quick abortion.
“A middle-of-the-night abortion puts the mother at greater risk, as studies have proven with respect to surgeries in general,” he said.
“Also, informed consent is lacking to do an abortion in an irregular manner like that, when the patient is probably sleep-deprived. The patient has the right to decline an abortion with a non-sleep-deprived mind up until the procedure is done.”
Epps, who clerked for Justice Anthony Kennedy, said it would be unusual for the court to schedule arguments in the case. He said it’s more likely the court will issue a judgment to vacate the lower court ruling or leave it standing.
The Department of Justice declined to comment on the case.
A decision from the Supreme Court could come on Monday.
BY LYDIA WHEELER – 06/03/18