Based on the DOJ’s recently-filed cert petition before the Supreme Court in Garza v. Hargan, it appears that this is exactly what may have happened.
As you may recall, this was the case featuring an unlawful immigrant minor being held in the care and custody of the Department of Health and Human Services, and the legal question of whether the ACLU could force the government to turn her over to get an abortion. Last week, after the full D.C. Circuit unexpectedly stepped in and ordered the government to do exactly that, it did—and she got an abortion—but now it is looking like this series of events may have unfolded in a manner not entirely on the up-and-up.
As recounted in the DOJ’s cert petition, there was an exchange of emails between ACLU and DOJ attorneys about when and how Jane Doe (the minor girl) would be taken for counseling and then an abortion—which must be separated by 24 hours under Texas law. Here, the ACLU told the DOJ a counseling appointment for Ms. Doe would occur on October 25—an assertion on which the DOJ relied to conclude it still had time to file for an emergency stay before the abortion would occur on October 26. However, at the last minute the ACLU got the doctor who had counseled Ms. Doe the previous week to agree to do the abortion on October 25—and yet didn’t tell the DOJ. By early morning on the 25th, Ms. Doe had gotten the abortion, and it was too late for DOJ lawyers—left in the dark by the ACLU’s deliberate withholding of this information—to request an emergency stay. The question now is whether this conceal and coverup operation violated legal ethics rules.
The DOJ cert petition argues two main points:
- Because the ACLU unilaterally acted in a way that made this case moot (by taking Ms. Doe for the abortion) before the opposing party (the DOJ) had an opportunity to respond by being able to request an emergency stay from the Supreme Court, longstanding Supreme Court precedent requires the case to be dismissed with orders to lower courts to vacate their judgments.
- Related to the failure to inform the DOJ the abortion would occur the early morning of the 25th, the ACLU counsel may have violated legal ethical duties.
If the Supreme Court agrees with the first argument, this would be a positive development as it would wipe out the erroneous en banc D.C. Circuit ruling and require the district court to dismiss all the remaining abortion rights claims (though often skipped over in recent discussions, this case features a number of other unnamed minors whose abortion claims are being advanced by the court-appointed guardian, and the case would have continued even though Ms. Doe got an abortion). The second argument should be taken seriously for the simple reason that our legal system depends on it.
What is deeply scary, and beyond the legal banter of this case, is that the ACLU apparently had such a fervent desire to see Ms. Doe’s baby killed that it chose to walk in the shadows of concealment and deception to do so.