The US Department of Justice [official site] on Friday appealed [petition, pdf] to the Supreme Court a decision from the US Court of Appeals for the DC Circuit [official websites] permitting a pregnant minor in immigration detention to receive an abortion. The petition seeks to have the Supreme Court overturn the appeals court ruling and remand it to the District Court with instructions to dismiss all claims for “prospective relief regarding pregnant unaccompanied minors.”
The DOJ acknowledges that the issue is moot because the minor, known as Jane Doe, received an abortion on the day following the DC Circuit’s ruling. However, the DOJ maintains that ‘the appeal was mooted before this Court’s review based on the ‘unilateral action of the party who prevailed below,'” and therefore asks the Supreme Court to
apply its longstanding practice of vacating the judgment of the court of appeals and remanding the case to that court with instructions to direct the district court to dismiss all claims that are now moot, i.e., all claims for prospective relief regarding pregnant unaccompanied minors
Additionally, the DOJ is asking for the court to have opposing counsel explain how Jane Doe was able to receive her abortion without notification to the government. The parties had previously discussed when Doe would be transported to a medical facility and when she would receive mandatory counseling from the physician who will perform the operation, as required under Texas law [text]. Scheduling challenges at the clinic on October 24th, the evening of the DC Circuit’s ruling, made it appear that Doe’s pregnancy would not be terminated until the 26th. However, the physician who had previously given Doe the mandatory counseling became available on the morning of the 25th, and Doe proceeded with the abortion. The government maintains that “[g]iven the dealings between the parties, respondent’s counsel at least arguably had an obligation to notify the government of this incredibly significant development.” The DOJ argues they would have filed their appeal earlier had they known of the scheduling change in order to preserve the injunction order blocking the medical procedure. Accordingly, the DOJ urged the Supreme Court to consider issuing
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 the 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.