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ACLU Files Supreme Court Brief Responding to Government Request to Throw Out Jane Doe Abortion Ruling

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Stack of Paper
Stacy Sullivan,
Deputy Director of Editorial and Strategic Communications,
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December 5, 2017

The ACLU filed a brief last night in the Jane Doe abortion case opposing the Trump administration’s request that the Supreme Court throw out a lower court’s decision that cleared the way for Ms. Doe’s abortion after a month of unconstitutional delay.

The government’s brief also asked the court to stop Ms. Doe from continuing her challenge to the government’s policy, which still prevents other pregnant immigrant teens from getting abortions while in federal custody. Finally, it asked the court to consider discipline against ACLU lawyers.

Legal scholars describe the Trump administration’s request as baseless and unprecedented. We believe it was an effort to deflect attention away from mistakes it made in litigating the case and to insulate from court review an unconstitutional policy of coercing pregnant immigrant minors into carrying pregnancies to term against their will.

Ms. Doe, a 17-year-old who came to the United States without her parents in September, learned that she was pregnant while in federal custody shortly after crossing the border. She immediately said she wanted an abortion, but the government refused to allow her to leave the shelter where she was living for any abortion-related appointments. In response, she filed a legal challenge, alleging that the government’s refusal to allow her to leave the shelter for abortion care constituted a ban on abortion and was thus unconstitutional.

After weeks of litigation in which the government forced her to remain pregnant against her will, the full D.C. Court of Appeals ordered the Trump administration to stop blocking her from getting an abortion. Ms. Doe had the abortion the following day.

Nine days later under pressure from anti-abortion activists for its failure to prevent Ms. Doe from getting her abortion, the government filed a brief asking the Supreme Court to vacate the federal appeals court’s ruling; dismiss all the claims related to abortion access for unaccompanied immigrant minors; and consider discipline against ACLU lawyers, alleging that they had misled the government about the timing of the abortion.

Legal scholars describe the Trump administration’s request as baseless and unprecedented.

Despite the fact that the government knew that Ms. Doe was legally entitled to obtain an immediate abortion, its lawyers apparently assumed that Ms. Doe would not be able to quickly obtain the procedure and failed to file an immediate challenge with the Supreme Court. In its brief, the government suggests that ACLU lawyers had an obligation to inform the government when Jane was going to get her abortion. But as today’s brief and ethics scholars point out, the ACLU was not required to inform the government about the timing of the abortion, which would have only enabled the government to attempt to further block her from the care she sought. In fact, doing so would have been violating its ethical duties to Jane.

The government further claims that since Ms. Doe had the abortion, the case is now moot. Although Ms. Doe was able to obtain an abortion, many more like her are subject to the Trump administration’s cruel policy, which still stands. We are fighting in federal court to allow the case to proceed as a class action and block the Trump administration from enforcing the policy. But the government is trying to prevent that from happening, asking the Supreme Court to dismiss the class action in an attempt to preserve its unconstitutional policy.

Getting the government’s policy struck down is our top priority. Every year, the federal government takes into custody hundreds of unaccompanied minors who are pregnant. The government requires them to visit religiously affiliated anti-abortion crisis pregnancy centers whose purpose is to discourage women from having abortions. In addition, government staff are required tell the minor’s parents about her pregnancy, even over the minors’ objection.

In one case, for example, an unaccompanied minor went to court and obtained an order to bypass Arizona’s parental consent law, which allowed her to consent to the abortion on her own and without her parents’ knowledge. The young woman’s advocate told the federal government that if they revealed the abortion decision to the minors’ parents in her home country, the father would retaliate against the mother. The government went ahead anyway.

In another case, the director of the Office of Refugee Resettlement, the federal agency that is responsible for providing care to these minors, personally flew to meet with pregnant minors to convince them to carry their pregnancies to term.

When these coercive tactics fail, the government prevents the minor from obtaining an abortion, as they did with Ms. Doe.

When the federal government blocked Ms. Doe from obtaining an abortion, she was not intimidated. She fought back and won. We will not be intimated, either. We will keep fighting for all the other Jane Does so that the Trump administration cannot inflict its cruel and unconstitutional policy on other young women.

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