WASHINGTON - The Supreme Court on Monday dismissed a lower court’s decision that allowed an undocumented immigrant teenager to obtain an abortion over the protests of the Trump administration.
The action, which came in an unsigned opinion without noted dissents, throws out a precedent that might allow other teenagers in the same circumstance to obtain an abortion.
But the court did not agree with a request by the president’s lawyers that American Civil Liberties Union lawyers who represented the girl be disciplined for their actions in the case.
Justice Department lawyers said they thought they had a deal with the girl’s lawyers last year that would have given them time to appeal a ruling of the U.S. Court of Appeals for the District of Columbia Circuit that allowed the abortion. Instead, the girl was able to have an abortion before the government lawyers filed, making their request moot and opening the administration to criticism from antiabortion groups that the Justice Department moved too slowly.
The ACLU said the administration’s complaint to the Supreme Court was “both extraordinary and baseless,” and longtime practitioners before the high court could not remember a similar request that civil rights lawyers be disciplined.
That Solicitor General Noel Francisco went to the court with the complaint says much about the political salience of the abortion issue and the changed nature of the administration’s position.
The court said it “takes seriously” allegations that lawyers tried to keep justices from hearing the case, but also that lawyers have ethical obligations to serve their clients. In the end, it said, it did not need to determine who was at fault to decide to throw out the lower court’s decision.
While the Obama administration supported abortion rights, President Donald Trump has appointed antiabortion officials to top positions in the departments of Justice and Health and Human Services, as well as other federal departments and agencies.
The Trump administration has enacted a policy of preventing access to abortion services - even though the government is not asked to pay for the procedure - for pregnant teens held in government-funded centers after crossing the border illegally.
Unsealed court documents show that the head of the Office of Refugee Resettlement denied access to abortion services for a 17-year-old who said she had been raped and threatened to harm herself if she could not end her pregnancy. (Continued below.)
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The office’s director, E. Scott Lloyd, denied the teen’s request over the recommendation of a senior staff member who said the office should assist the teen in getting an abortion, according to the filing.
In explaining his decision, Lloyd said in a December memo that the government office “cannot be a place of refuge while we are at the same time a place of violence.’ He added, “We have to choose, and we ought to choose [to] protect life rather than to destroy it.”
The ACLU is representing a class of undocumented teenagers challenging the policy.
In the case before the Supreme Court, a Central American teenager identified as Jane Doe was being held in a government-funded shelter last fall, and her lawyers say she had been seeking an abortion since learning shortly after she crossed the border that she was pregnant.
She persuaded a Texas judge that she was mature enough to make the decision to end the pregnancy without the notification of her parents, whom she said she feared, according to her lawyers.
But the administration said it would not “facilitate” abortions for undocumented minors in federal custody.
A federal district judge ordered the abortion to proceed, but a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit stopped the process. The panel said it was preferable that the government find a sponsor for the girl, which would take the government out of helping her receive an abortion.
The full circuit court reversed that decision in a 6-3 ruling on Oct. 24, followed a few hours later by a new order from the district judge. That started the race that night. For the solicitor general’s office, it was to get the issue before the Supreme Court. For lawyers for the girl, it was to get her the abortion. She was 15 weeks pregnant at the time.
Texas law requires medical counseling at least 24 hours in advance of an abortion by the same physician who performs the procedure. It was unclear whether the doctor who provided the teenager counseling on Oct. 19 would be available to perform the abortion.
Francisco said the government relied on the word of the girl’s lawyers that she would not be able to obtain the abortion without waiting another 24 hours, and so the government delayed its request to the Supreme Court to slow down the process and review the appeals court ruling.
But the original doctor made himself available, and he performed the abortion before the government could file its petition.
Francisco said the government was misled.
“Members of the Bar of this Court, particularly in the context of emergency proceedings, often rely on - and should be safe in relying on - the duty of counsel to update statements that have become materially false, let alone as a result of counsel’s own conduct,” the government’s brief states.
The ACLU retained longtime Supreme Court practitioner Carter Phillips to tell the court that the solicitor general’s request “finds no support in the facts or the law.”
To suggest that the ACLU’s lawyers had a duty to facilitate the government in trying to overturn the court ruling their client had won “would turn counsel’s ethical obligations on their head,” Phillips wrote.
The government could have immediately taken the appeals court ruling to the Supreme Court as soon as it was issued, Phillips wrote.
“They inexplicably failed” to do so, Phillips said, and “cannot now blame respondent’s counsel for the consequences of their own inaction.”
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The Washington Post’s Ann E. Marimow contributed to this report.