Wednesday morning, the official Twitter account of the American Civil Liberties Union gleefully announced:
The ACLU has a perverted sense of justice. First and foremost, of course, is a supposed defender of civil liberties celebrating the death of an innocent human being. But also appalling is the ACLU's gaming of the judicial system.
On Friday, Brigette Amiri, the attorney for the ACLU, expressly told the D.C. Circuit Court of Appeals that if Jane Doe was not allowed to have an abortion on Saturday, October 21, 2017, she would need to receive mandatory counseling on Monday and the abortion on Tuesday because the abortion doctor who had already counseled her was not the abortion doctor at the facility the following week. And if that window passed, Jane Doe's abortion would be pushed out to the following week's Thursday, Friday, or Saturday.
Here is a transcript of the relevant exchange in full. The audio is available at this link beginning at the 1:13:25 mark:
Judge Patricia Millett: Can I ask bit more on the timing thing. So she got the counseling yesterday [Thursday, October 19]. And it one is there any expiration date on that counseling or will that continue for the next be valid for the next five weeks. Just need to get the day if it worked be approved for her to go.
Attorney Amiri: So your honor this is a complicated layer of Texas abortion restrictions.
So Texas law requires counseling at least 24 hours in advance of the procedure by the same doctor who is to provide the abortion. Because of the limited availability of abortion in Texas, the same doctor is not always at the facility in South Texas. So for example, the doctor that provided the counseling yesterday to J.D. is there today and on Saturday, but is not the same doctor who is there next week.
So next week there is a different doctor on Monday and Tuesday. And so if J.D. were allowed to have the abortion next week she would have to be, unless this court declares otherwise, would have to be counseled again by this different doctor on Monday and wait 24 hours and have the abortion on Tuesday. So it is a complicated layer of--
Judge Millett: And then after Tuesday after Tuesday.
Attorney Amiri: Then we're looking at the following week. And the doctor that is there Thursday, Friday and Saturday the following week. But your honor we are really hoping we don't get that far.
Judge Millett: I thought there was one doctor who didn't do them after 15 weeks?
Attorney Amiri: After 15.6 weeks. And that is the doctor next week. And we are very concerned that she's on the cusp and so even if she's able to go next week she may be past the limit for that particular doctor.
Similarly, the revised Temporary Restraining Order entered by the district court judge Tuesday night presumed that Jane Doe would receive counseling before the abortion. The court's order stated that the government was...:
[r]equired to transport J.D.—or allow J.D. to be transported by either her guardian or attorney ad litem—promptly and without delay, on such dates, including today, and to such Texas abortion provider as shall be specified by J.D.'s guardian ad litem or attorney ad litem, in order to obtain the counseling required by state law and to obtain the abortion procedure, in accordance with the abortion providers' availability and any medical requirements. If transportation to the nearest abortion provider requires J.D. to travel past a border patrol checkpoint, Defendants are restrained from interfering with her ability to do so and are ordered to provide any documentation necessary for her to do so
Jane Doe's attorneys did not violate the terms of the district court's order assuming, as is likely the case, the same doctor who counseled Jane Doe last week Thursday performed the early-morning abortion this Wednesday. But on Friday, in arguing that time was of the essence, Amiri expressly represented to the court that after Tuesday, Jane Doe would need to wait until the following week for an abortion.
So what happened? Did Jane Doe's attorney spontaneously decide to sprint the 17-year-old to the South Texas late-term abortion provider for an earlier-morning procedure? And was that always the plan? Either way, the why seems obvious enough: The ACLU did not want the government to have time to seek a stay from the Supreme Court and risk the higher court reversing the D.C. Circuit's decision.
The ACLU may have won. But it didn't achieve justice.
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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