The American Civil Liberties Union has a bloodlust.
Two months ago, attorneys for the ACLU gamed the judicial system to secure an expedited decision from the full D.C. Circuit Court of Appeals that unaccompanied minors illegally present in the United States have a constitutional right to an abortion. The ACLU’s client in that case, Garza v. Hargan, was a 17-year-old girl from Central America, identified only as Jane Doe. She was 15 weeks pregnant.
Following its victory on appeal, the ACLU informed Department of Justice attorneys that Doe would not be able to obtain an abortion for two days. In turn, the DOJ told the ACLU it would seek a stay of the D.C. Circuit’s order, pending appeal to the Supreme Court, the following morning. Rather than risk the Supreme Court ruling Doe did not have a right to an abortion, the ACLU pushed Doe’s abortion up a day and into the early morning hours — well before government attorneys had an opportunity to file the motion for a stay with the Supreme Court.
The ploy worked, and the ACLU later took to Twitter to shout the success of Doe’s abortion as #JusticeForJane. A few weeks later, the DOJ filed a petition with the Supreme Court seeking to vacate the D.C. Circuit’s opinion and suggesting sanctions might be warranted against the ACLU for its inveigling. That petition is still pending.
Now, the ACLU is back in federal court arguing the government must release two more minors (Jane Roe and Jane Poe) for abortions — one of whom is 22 weeks pregnant!
Twenty. Two. Weeks. Pregnant.
After amending their complaint on Friday to add Roe and Poe as plaintiffs, the ACLU filed a motion for a Temporary Restraining Order, seeking a court order requiring the government “to transport Ms. Roe and Ms. Poe—or allow Ms. Roe and Ms. Poe to be transported—promptly and without delay, on such dates, including today, to an abortion provider, in order to obtain any pregnancy or abortion-related medical care and to obtain the abortion procedure itself, in accordance with the abortion providers’ availability and any medical requirements.”
Late Sunday, the government filed a brief opposing the ACLU’s motion and arguing that it has not imposed an undue burden on Roe or Poe’s constitutional right to an abortion. The government’s brief, however, concedes that the D.C. Circuit’s decision in Garza controls in this case, but argues Roe and Poe’s situations are distinguishable. But recognizing the futility of appearing before the same judge as the one who ruled against them last time around, and (now) comprehending the ACLU’s abortion-before-all mantra, the government alternatively sought, at a minimum, a 24-hour stay of any decision to allow it to file an appeal.
Federal Judge Tanya Chutkan held oral arguments on the motion for a temporary restraining order on Monday at 10:30 a.m., with a decision likely coming within 24 hours, and then quickly followed by a trip to the D.C. Circuit Court of Appeals.
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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