DOJ’s stance on Illegal immigrant abortion case is clear jab at ACLU

The Justice Department took an alarming step last week in bullying lawyers who oppose it. In a brief filed in the Supreme Court, it accused attorneys from the American Civil Liberties Union who litigated the “Jane Doe” abortion case of misleading the government and asked the justices to punish them. In reality, the lawyers were protecting their own client’s confidences, as the law requires.

At best, the Department of Justice (DOJ) accusations are an attempt to deflect responsibility from themselves to their opponents. At worst, it is a conscious effort to deter others who dare to challenge the Trump administration.  

{mosads}Jane Doe is a 17-year-old undocumented immigrant in government custody, who arrived in this country destitute, eight weeks pregnant, and desperate. As soon as she found out she was pregnant, she said she wanted to terminate the pregnancy.

After a flurry of litigation that went on for weeks, she won the constitutional right to an abortion, in a 6-3 decision by the D.C. Circuit Court of Appeals. She had the abortion the next morning.

The DOJ could have immediately filed an emergency appeal with the Supreme Court, but it chose not to, believing it had additional time because Texas law mandates that a woman receive counseling at least 24 hours before the abortion, by the same doctor who would perform it.

In the course of the previous month’s litigation, Jane Doe had received the counseling, but the doctor who provided it was unavailable, so the government believed Doe would need to repeat the counseling with a different doctor and then wait an additional 24 hours. However, after the appeals court decision, the doctor who provided the initial counseling became available.

When Jane Doe went to the abortion clinic on the morning of Oct. 25, government lawyers believed she was going to get counseling. Instead, she got the abortion that they didn’t want her to have. Remarkably, rather than recognizing its own failure to appeal sooner, the government accused the ACLU of a ruse.

The government seems to think Jane Doe’s lawyers were obligated to tell the government that the doctor who provided the counseling days earlier had become available. But that misunderstands both the letter and the spirit of the ethics rules.

A lawyer’s first duty is to the client, and the rules of ethics are designed with that duty in mind. Jane Doe’s lawyers — like all lawyers — are prohibited from revealing information that would “likely be detrimental to the client” (in the words of D.C.’s ethics rules). Not only were Jane Doe’s lawyers not required to tell DOJ that the abortion would happen early Wednesday morning, they were prohibited from telling them.

The government’s strategy throughout this case has been to drag out legal proceedings until past week 20 of her pregnancy, when under Texas law abortion is illegal. Had Doe’s counsel illegally revealed confidential information about when her abortion would take place, DOJ might have raced to prevent her from exercising her constitutional right, and then continued the stalling tactics. The true ethical violation would be if Jane Doe’s counsel revealed confidential information to her adversary that might damage her.

Jane Doe’s lawyers told DOJ that the time of her doctor’s appointment had changed, as they had promised to, without adding that she would have the abortion at that time. Since this was an adversarial proceeding, they had no obligation to say what the appointment was for. They had to protect her personal and private information.

Government lawyers ought to know the rules of their own profession, especially if they are accusing their adversary of violating them. The irony is that filing frivolous accusations with the Supreme Court is itself an ethics violation — and DOJ’s accusations against Jane Doe’s lawyers come perilously close to crossing that line.

David Luban is Professor of Law at Georgetown University, the author of several books on legal ethics, and a former member of the D.C. Bar’s Ethics Committee.