- The Washington Times - Friday, November 3, 2017

The Justice Department accused the ACLU of lying in a federal court case about the timing of an illegal immigrant girl’s abortion, and asked the Supreme Court on Friday to take the case and overturn a decision that critics say creates a constitutional right for illegal immigrants to have abortions in the U.S.

The administration says the American Civil Liberties Union rushed the 17-year-old illegal immigrant to get an abortion in order to prevent any chance for more legal wrangling last month.

Justice Department lawyers said they’d been preparing to ask the Supreme Court to take up the case, but the ACLU’s speedy abortion for the girl identified in court documents only as “J.D.,” an abbreviation for Jane Doe, short-circuited that.

“The government planned to seek an emergency stay from this Court before Ms. Doe could obtain an abortion,” the government said in its brief. “Ms. Doe’s appointment was changed so that instead of obtaining counseling at 7:30 a.m. on October 25, she would undergo an abortion at 4:15 a.m. that morning, just hours before the government planned to file its stay application.”

Justice Department lawyers said the ACLU didn’t report the change, and said that could be seen as a violation of their obligations as lawyers.

“Disciplinary action may therefore be warranted,” the department said.

The ACLU, though, says the government’s complaints are an attempt to paper over its own failures. The organization said the Justice Department could have immediately appealed to the Supreme Court but waited, giving J.D. time to have the abortion, which the ACLU says didn’t violate the court order.

“That government lawyers failed to seek judicial review quickly enough is their fault, not ours,” said David Cole, the legal director for the ACLU.

Mr. Cole said the ACLU acted in the best interest of J.D.

J.D. was apprehended crossing into the U.S. illegally without her parents, making her part of the surge of Unaccompanied Alien Children (UAC) who have streamed to the U.S. over the last five years.

Under government policy, she was placed in a government-contracted shelter. During a medical exam she was told she was pregnant. She then sought an abortion, getting a judge’s permission under Texas law because she didn’t want to get permission from her parents back home.

The Trump administration protested the procedure, saying tax dollars shouldn’t be spent facilitating an elective abortion. They said they would have to send a staffer with J.D. and provide health care after the abortion, all at taxpayers’ expense. However, the ACLU contends J.D. did not use tax dollars to fund the actual procedure.

In its new court papers, the government said shelter staff did accompany the girl to the clinic for the abortion.

The case has taken a number of legal turns.

Initially the ACLU tried to get a federal court in San Francisco to order access for the abortion, but that judge ruled it wasn’t related to an ongoing case out there.

In that case, the ACLU is suing the government for contracting with religious nonprofits, like Catholic Charities, to house refugees, saying the government is permitting the religious nonprofits to receive federal funds but not offer reproductive health care. The ACLU sought to add J.D. to the class of plaintiffs represented by the ACLU.

But the judge held J.D. had no nexus to the California litigation, so the ACLU sued in federal district court in Washington, D.C., and a judge ordered the government to back off and allow the abortion.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia vacated that ruling, saying the government needed to try harder to find a sponsor who could take the girl from government custody and facilitate the abortion, if appropriate.

The full court then stepped in and overturned its own panel, freeing the girl once again to have the abortion.

In the current filing, the government said it had identified a potential sponsor and might have been able to place J.D. with the sponsor by the Oct. 31 deadline set by the three-judge panel.

Texas Attorney General Ken Paxton, who filed briefs backing the Trump administration in the case, said he wants to see the court punish the ACLU for its behavior.

“It seems very clear to me that ACLU lawyers misled the Department of Justice in order to carry out this heinous act against an innocent unborn life,” he said.

But Michele Goodwin, a professor at the University of California, Irvine who teaches reproductive health and ethics law, said the push for sanctions against the ACLU lawyers was “spurious,” and could end up frightening independent lawyers who don’t have the ACLU’s resources.

“This could chill those types of lawyers from fighting for very vulnerable people,” she said.

While J.D. has had the abortion, the ACLU has said her case is just one of a number of girls in similar positions seeking abortions. The organization has asked the courts to create a nationwide policy guaranteeing illegal immigrants access to abortion.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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