This column by ACRU General Counsel Ken Klukowski was published November 7, 2017 by Breitbart.
WASHINGTON, DC—U.S. Solicitor General Noel Francisco filed a petition at the U.S. Supreme Court on Friday, asking the justices to erase the lower-court decision holding that an illegal alien caught crossing the border has the right in America to an abortion facilitated by the government and taxpayers.
Teenager “Jane Doe” was caught crossing the Texas border into the United States. A doctor examining her at a federal facility discovered she was pregnant. She decided to have an abortion, and lawyers from the American Civil Liberties Union (ACLU) filed a federal lawsuit seeking a court order to get an abortion.
A federal judge in Washington, DC, ruled that she had the right to an abortion facilitated by taxpayers. A panel of the U.S. Court of Appeals for the D.C. Circuit reversed the trial court in a 2-1 decision, but the full D.C. Circuit (currently one of the most liberal federal appeals courts in the nation) reversed the panel’s decision by a 6-3 vote in a very rare en banc decision.
Before dawn the next morning, at 4:15 a.m. on October 25, before the U.S. Department of Justice (DOJ) could take the matter to the Supreme Court, a doctor showed up at the federal facility where she was being sheltered and performed the abortion.
Attorney General Jeff Sessions is pushing back hard, making the case that the ACLU lawyers deceived DOJ, and the solicitor general serving under him is now taking the matter to the Supreme Court.
Francisco’s petition for review at the Supreme Court (called a petition for certiorari) explains:
This appeal presents the question whether the government must facilitate access to an abortion that is not medically necessary to preserve the life or health of an unaccompanied alien minor who was apprehended unlawfully entering the United States, who declines to request voluntary departure to her home country, who has not yet identified a qualified sponsor to whom she can be released, and who is thus in the government’s custody.
“The answer to that question is no,” Francisco writes.
Supreme Court precedent does not declare that a right to abortion exists under these circumstances or that the government must support abortion at all. “Under this Court’s case law, the government may adopt policies favoring life over abortion,” the petition states, and moreover that the government “is not obligated to facilitate abortion.”
“[Doe’s] representatives informed the government that her appointment would be moved to the morning of October 25, pushing the abortion procedure to October 26,” DOJ’s petition explains. “The government asked to be kept informed of the timing of Ms. Doe’s abortion procedure, and one of 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,” Francisco adds.
But at that point, Doe’s lawyers changed the October 25 appointment from a counseling session to a scheduled abortion, then moved the appointment time from 7:30 a.m. to 4:15 a.m.—hours before normal business hours.
Doe’s “representatives did not notify the government or the shelter of the changed nature of the appointment,” the petition explains to the justices.
Francisco’s petition emphasized that under Texas law, “Doe was required to attend a counseling session 24 hours before any abortion procedure, and the counseling had to be with the same doctor who would perform the abortion.”
The petition notes that Judge Karen LeCraft Henderson dissenting from the en banc court’s emergency order facilitating the abortion because Doe is an illegal alien who was caught at the border. Thus, she has not “developed substantial connections” with the United States, and so “cannot avail herself of the constitutional rights afforded those legally within our borders,” such as the “right to an abortion.”
“The ACLU also did not dispute that Ms. Doe’s representatives had repeatedly informed the courts and government counsel that Ms. Doe would need to attend a new counseling session with a new doctor and wait 24 hours before she could obtain an abortion,” DOJ told the Supreme Court.
Because the ACLU’s actions made it impossible to get Supreme Court review of the decision from the lower courts, Francisco argues that the High Court should vacate the lower-court decision, which means to strike it from the law books and throw it out so that the decision of the D.C. Circuit will not become a legal precedent that other illegal aliens can attempt to use to obtain abortions.
The petition concludes with an extremely unusual request:
Finally, in light of the extraordinary circumstances of this case, the government respectfully submits that this Court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel—either directly by this Court or through referral to 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.
In other words, DOJ is making the case that the ACLU’s deception was so blatant and egregious that the licensed attorneys working on this case should be punished by the Supreme Court or the states where they are licensed.
The ACLU has 30 days from DOJ’s filing to respond before the Court takes action.
The case is Hargan v. Garza and has not yet been assigned a docket number at the Supreme Court.