Friday morning, in a surprise move, the Department of Justice filed a petition for review in the Supreme Court in the case of Garza v. Hargan. The case made national news when Jane Doe, a minor from Central America illegally present in the United States, sought to force the federal government to facilitate her abortion. Over a strong dissent, on October 24, 2017, the full court for the D.C. Circuit held that the government must release Jane Doe from custody to obtain an abortion.

Before the Department of Justice had time to seek a stay of the D.C. Circuit Court’s order and file an appeal with the Supreme Court, news broke that Jane Doe had already aborted her unborn baby in the early morning hours of October 25, 2017.

At the time, I surmised that the government had intended to file a stay but had been misled by the ACLU’s in-court representation that Jane Doe would not be able to obtain an abortion until the following week. But now we know that the ACLU’s misconduct extended even further.

According to Department of Justice spokesman Devin O’Malley:

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 26th, Jane Doe’s attorneys schedule the abortion for the early morning hours of October 25th, 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.

The government’s petition for review in the Supreme Court goes further, suggesting that Jane Doe’s attorneys should be forced to prove “why disciplinary action should not be taken against respondent’s counsel—either directly by this Court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.”

Additional facts presented in the Department of Justice’s brief expose the extent of the ACLU’s deceit:

When Ms. Doe could not receive counseling from a physician on the evening of October 24, her representatives informed the government that her appointment would be moved to the morning of October 25, pushing the abortion procedure to October 26. The government asked to be kept informed of the timing of Ms. Doe’s abortion procedure, and one of the respondent’s counsel agreed to do so.
Based on those representations, the government informed this Court’s Clerk’s Office and respondent’s counsel that it would file a stay application the following morning, 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.

These additional facts should placate those in the pro-life community who, upon learning that Jane Doe had aborted her baby, wrongfully inferred that the Department of Justice had opted not to appeal the circuit court decision to the Supreme Court: Pro-life leaders such as Texas Attorney General Ken Paxton who “expressed his profound disappointment … about an abortion of a child in the early hours of this morning. The abortion occurred after the Department of Justice failed to appeal to the United States Supreme Court a ruling allowing the abortion."

At the time, Paxton wrote:

Today’s loss of innocent human life is tragic. And it may have been avoidable. The ruling that paved the way for the abortion violated long standing Supreme Court precedent on the rights of an unlawfully present person. Even the Obama Administration’s Department of Justice acknowledged that unlawfully present aliens without substantial connections to the country lack the same constitutional rights as citizens. This ruling not only cost a life, it could pave the way for anyone outside the United States to unlawfully enter and obtain an abortion. Life and the Constitution are sacred. We lost some of both today.

While the Supreme Court cannot bring Jane Doe’s baby back to life, it can, and should, vacate the D.C. Circuit’s decision and make clear that aliens detained at our country’s border do not hold a constitutional “right” to abortion. The Supreme Court should also severely sanction the ACLU for its deceit.

Sanctions, though, won’t be the only damage to this formerly-proud defender of civil liberties, as the ACLU has once again opted to sacrifice its reputation on the altar of abortion.

Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.

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