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The Justice Department has filed a petition to the Supreme Court alleging that lawyers representing Jane Doe, an undocumented minor in federal custody, misled the government over the timing of her abortion procedure.  

The Justice Department in court documents argues lower court judgments in the case should be vacated, and discipline may be warranted against Jane Doe’s attorneys.

Doe is a 17-year-old who was apprehended at the border in early September 2017. As a minor entering the U.S. illegally, she was placed in the custody of Health and Human Services at a shelter in Brownsville, Texas.

Following her arrival, the minor was given a medical exam and informed she was pregnant. She requested and abortion. In the state of Texas a minor cannot get an abortion without parental consent or permission from a judge. On September 25, she was granted permission by a judge to obtain an abortion.

After the government refused to permit her request for an abortion, she filed a lawsuit on October 13 in the D.C. District Court. She prevailed at the District Court where the judge ordered the government to facilitate the procedure.

The government appealed that decision and on Friday, October 20, a panel of judges vacated part of the lower court decision and gave the government eleven days to find an adult sponsor who could take custody of Doe while her immigration case proceeds through the courts.  

The case was subsequently heard by a full panel of appellate judges on October 24 and that panel affirmed the lower court’s ruling and ordered Doe be allowed to have an abortion. After that split decision, it was expected that the Justice Department would appeal to the Supreme Court.

Under Texas state law, a woman must receive counseling at least 24 hour prior to an abortion and it must be performed by the same physician.

In the brief, the Justice Department alleges that on the evening of October 24, Doe’s representatives told the government that her counseling appointment would be moved to the morning of October 25, pushing the abortion procedure to the 26.

Based on this, the government says it told the Supreme Court clerk’s office that it intended to file a motion to stay the abortion the following day, October 25.

“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,” the Justice Department alleges.  

“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 government also alleges that Doe’s representatives did not notify the government or the shelter of the changed in the nature of her appointment.

“Efforts to reach respondent’s counsel were met with silence, until approximately 10 a.m. EST, when one of her lawyers told the government that Ms. Does had undergone an abortion.”

Department of Justice spokesman Devin O’Malley said, “The ACLU misled the United States as to the timing of Jane Doe’s abortion. After informing Justice Department attorneys that the procedure would occur on October 26, Jane Doe’s attorneys scheduled the abortion for the early morning hours of October 25, thereby thwarting Supreme Court review.”

The Justice Department also specified the remedies it seeks.  “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.”

ACLU Legal Director David Cole issued the following statement: 

“The Trump administration blocked Jane Doe from getting constitutionally protected care for a month and subjected her to illegal obstruction, coercion, and shaming as she waited. After the courts cleared the way for her to get her abortion, it was the ACLU’s job as her lawyers to see that she wasn’t delayed any further — not to give the government another chance to stand in her way.”

“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.”

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