NRL News

Much more behind the abortion of the undocumented teenager than we’ve been led to believe

by | Nov 28, 2017

By Dave Andrusko

Hats off to Margot Cleveland, writing brilliantly today at the Federalist. “Supreme Court Throws Shade On ACLU’s Illegal Immigrant Abortion Shenanigans” is must reading, a welcome corrective to the narrative about the undocumented, unaccompanied teenager who had secured an abortion thanks to the ACLU and the DC Court of Appeals.

In two of the final NRL News Today reports [here and here], we noted that the Trump administration had forcefully argued the ACLU had acted unethically in speed-walking the 17-year-old’s abortion.

Indeed the Department of Justice had gone so far (as Cleveland describes it) “as to file a petition with the Supreme Court on November 3, seeking to vacate the D.C. Circuit’s decision that a minor illegal alien (Jane Doe) had a constitutional right to an abortion.”

What we hadn’t talked about much was the derisive, condescending tone both of the ACLU and particularly Georgetown Law professor Marty Lederman. In a nutshell they argued the Trump administration had not been fast enough on its feet and was merely trying to find cover for its inadequate response. In other words, the response was not based on principle but was pure politics.

What Ms. Cleveland does—extremely well, I might add—is to show us how recent developments suggest a fundamentally different view of what happened October 24—the day the full D.C. Circuit Court of Appeals overturned a prior decision by a three-judge panel of the same court that had given the federal government until October 31 to find the girl a sponsor–and October 25 when Jane Doe aborted her 16-week-old baby.

Cleveland writes

A recent development, however, challenges the narrative that the DOJ [Department of Justice] acted politically and improvidently in filing a petition to vacate the D.C. Circuit opinion in the Jane Doe case. Two weeks after the government filed its petition, and more than one week after Lederman’s hit piece, the clerk of the Supreme Court wrote to the ACLU, informing the lead attorney that “the Court has directed this office to request that a response to the petitioner’s motion to lodge non-record material under seal be filed in this case.” The Supreme Court gave the ACLU until December 18 to respond, even though the government’s motion was initially set to be discussed by the justices at their December 1, 2017, conference.

What does it mean? Cleveland speculates

[T]he justices’ interest in the government’s motion to file documents detailing communications between government counsel and ACLU counsel, both before and after the abortion took place, hints an interest in the merits of the DOJ’s appeal. It also suggests interest that the ACLU changed the date of Doe’s abortion after agreeing (but failing) to inform the government of the timing of the procedure and after learning that the government intended to seek an emergency stay to appeal the constitutional questions.

There are a number of reasons the DC Court of Appeals decision should be vacated. The strongest, she observes, is that the full court’s decision (en banc opinion)

decided an important issue of constitutional law on an expedited basis, with the government forced to brief the issues literally overnight, and without the benefit of oral argument. The full D.C. Circuit’s haste in deciding the appeal in a mere two days also likely partly stemmed from the ACLU’s earlier misrepresentation to the appellate court about the lack of available abortion doctors.

Who knows where this is going. But

by requesting the ACLU respond to the government’s motion, it seems clear that the DOJ’s petition presents questions serious enough to garner the Supreme Court’s attention.

Stay tuned.