Abortion Shenanigans

by Ed Whelan

More than three decades ago, Justice O’Connor observed in her dissent in Thornburgh v. American College of Obst. & Gyn. that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, six years later in Planned Parenthood v. Casey, O’Connor would indulge in the same ad hoc nullification of legal rules that she had decried.

Even for those of us accustomed to the abortion distortion, the recent events in Garza v. Hargan were quite a surprise. That case concerned an unaccompanied pregnant alien minor who was apprehended unlawfully entering the United States, who declined to request voluntary departure to her home country, and who, not having secured a sponsor, remained in federal custody. Intent on having an abortion and having already obtained the judicial bypass to the parental-consent requirement under Texas law, the minor, represented by the ACLU, sued and obtained a temporary restraining order that required the federal government to transport her promptly to the nearest abortion provider both for the counseling required under state law at least 24 hours in advance of the abortion and for the abortion itself.

I won’t summarize the entire procedural history of this case (see pp. 2-17 of the government’s certiorari petition, if you wish), but will instead highlight two sets of developments:

1. On October 20, a divided panel of the D.C. Circuit vacated the TRO that the district court had entered and instead allowed the government until October 31 to secure a sponsor to whom the minor could be released. Two days later (October 22), at 10 p.m.—yes, p.m.—the ACLU filed an emergency motion for en banc rehearing with the D.C. Circuit. One hour later, at 11 p.m., the D.C. Circuit granted the order and gave the government until 11 a.m. the next morning (October 23) to file its response. In other words, with no advance notice, the court obligated the government lawyers to work overnight to respond the very next morning to a motion filed late at night.

Then, on October 24, without even holding oral argument, the en banc court, by a vote of 6 to 3, vacated the panel majority’s order and reinstated the TRO. An hour later, the ACLU filed an emergency motion in the district court to amend the TRO to require the government to make her immediately available for counseling and an abortion. Without even giving the government an opportunity to respond, the district court promptly granted the motion.

In a lengthy footnote in his dissent from the en banc ruling, Judge Kavanaugh explains why the court shouldn’t have granted en banc review in the first place. The initial panel order was unpublished and therefore, far from presenting a “question of exceptional importance” (under the usual standard for en banc rehearing), “constituted no legal precedent for future cases.” Further:

The panel was faced with an emergency motion involving an under-developed factual record that is still unclear and hotly contested. Indeed, the parties have submitted new evidence by the hour over the past two days – none of which was presented to the panel. The panel’s unpublished order recognized Jane Doe’s interests without prematurely requiring the Government to act against its interests. The panel decision was prudent and reasonable, given all of the circumstances. Indeed, as noted above, the Government represents that, while difficult, it is possible for Jane Doe to obtain a sponsor by “5:00 P.M. Eastern on October 31, 2017.” This case, as handled by the three-judge panel, therefore was on a path to a prompt resolution that would respect the interests of all parties – until the en banc Court unwisely intervened.

2. The government planned to seek an emergency stay from the Supreme Court. After the ACLU represented that the abortion would not take place until October 26, the government informed the Court and the ACLU that it would file its emergency application for a stay on the morning of October 25. The minor instead scheduled her abortion for 4:15 a.m.—yes, a.m.—on October 25. (I refer the reader to section 7 of the government’s cert petition, at pages 11-16, for a detailed account.) By the time that the government had stated it would file its emergency application, the abortion had already taken place.

For the Left, it’s abortion über alles.

By the way, the legal director for the ACLU, who was very active in this litigation, is David Cole. Cole is also the husband of D.C. Circuit judge Cornelia Pillard, so his involvement in the case explains why Pillard recused herself.

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