Justice Department accuses ACLU of misconduct in abortion case

In this Oct. 20 file photo, activists with Planned Parenthood demonstrated in support of a pregnant 17-year-old being held in a Texas facility for unaccompanied immigrant children to obtain an abortion, outside of the Department of Health and Human Services in Washington.
J. Scott Applewhite/Associated Press
In this Oct. 20 file photo, activists with Planned Parenthood demonstrated in Washington in support of a pregnant 17-year-old being held in a Texas facility to obtain an abortion.

WASHINGTON — In an extraordinary Supreme Court filing on Friday, the Justice Department accused the American Civil Liberties Union of misconduct in the case of an teenager known as Jane Doe in the country illegally.

The teenager obtained an abortion last month over the government’s objection after an appeals court allowed it.

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


“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,” O’Malley said.

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David Cole, the ACLU’s legal director, said the accusations were baseless.

“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,” he said. “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.

“This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said.

“Now, because they were unable to stop her, they are raising baseless questions about our conduct,’’ Cole said. “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.”


The US Court of Appeals for the District of Columbia Circuit ruled in favor of the teenager on Oct. 24. According to the Justice Department’s brief, lawyers for the ACLU initially indicated that the abortion would take place Oct. 26.

On that understanding, the department’s brief said it had planned to file an emergency application for a stay in the Supreme Court on Oct. 25.

Under Texas law, women must attend a counseling session at least 24 hours before having an abortion with the doctor who will perform the procedure. The teenager had attended such a session Oct. 19, but the doctor she consulted was initially thought to be unavailable to perform the procedure.

Had a new doctor been required, the teenager would presumably have received counseling Oct. 25 and obtained the abortion Oct. 26. It turned out that the original doctor was available after all, and the teenager received the abortion early in the morning on Oct. 25.

New York Times