This column by ACRU General Counsel Ken Klukowski was published December 20, 2017 by Breitbart.
WASHINGTON, DC—The Trump-Sessions U.S. Department of Justice (DoJ) filed an emergency application at the U.S. Supreme Court on Monday to block a lower court’s extraordinary order requiring the Trump administration to facilitate immediate abortions for two more illegal alien teenagers.
On October 18, Judge Tanya Chutkan issued a temporary restraining order (TRO)—an extreme measure reserved for extraordinary situations—ordering the federal government to facilitate an abortion for a teenage illegal alien at a federal facility. The U.S. Court of Appeals for the District of Columbia Circuit affirmed days later, which is not surprising given that court’s current liberal composition.
According to a DoJ filing at the Supreme Court, lawyers from the American Civil Liberties Union (ACLU) agreed not to seek an abortion before DoJ could seek emergency relief from the High Court the next morning. Instead, the ACLU allegedly broke its promise to the U.S. government and obtained an abortion shortly at 4:15 AM the morning of October 26. Outraged over this deception, the DoJ has asked the Supreme Court to discipline the ACLU lawyers involved in the case.
Now two more illegal alien teenagers have come forward, asking for the U.S. government to facilitate their abortions as well. On December 18, Chutkan granted yet another TRO, commanding the Trump administration to permit the foreign children to terminate their pregnancies immediately, without even allowing time for an appeal.
While Attorney General Jeff Sessions’ DoJ is immediately appealing that TRO to the D.C. Circuit, U.S. Solicitor General Noel Francisco is simultaneously filing emergency papers asking the U.S. Supreme Court to step in. Given the current makeup of the D.C. Circuit, it is very likely that the appellate court would refuse to grant a stay on its own, thus necessitating action by the nation’s highest court.
Emergency applications involving the D.C. Circuit go to Chief Justice John Roberts, who has jurisdiction over that court and can either act unilaterally or circulate the petition to all of his colleagues for a vote.
“This case concerns the question whether the government must facilitate an abortion procedure that is not necessary to preserve the life or health of an unaccompanied minor who unlawfully entered the country and thus is in the government’s custody,” Francisco explains in DoJ’s application.
“The answer to that question is no,” he continues. “Under this Court’s case law, the government may make decisions favoring life over abortion; it is not obligated to facilitate Ms. Roe’s procedure; and the government acts permissibly if it does not place an undue burden in her path.”
Under federal law, when an illegal alien who is not an adult enters the United States, “the U.S. Department of Health and Human Services (HHS) is normally responsible for the minor’s care and custody pending completion of the immigration proceedings.”
Solicitor General Noel Francisco threw the kitchen sink at the case with his filing to the Supreme Court, asking for no fewer than three alternative forms of emergency relief.
First, Francisco is asking for a stay pending appeal. That is, he is asking the High Court to put the TRO on hold until the D.C. Circuit rules, hoping that court reverses Chutkan. If the D.C. Circuit sides with the trial court, then DoJ asks that the stay be kept in place until the justices vote on whether to take the case up to their level.
Second, the solicitor general says the Court may alternatively treat this filing as a petition for certiorari before judgment. Although the Supreme Court almost always waits for a final decision from a federal court of appeals, Congress’ grant of jurisdiction to the nation’s highest court in 28 U.S.C. § 1254(1) extends to any case entered on the docket of a federal appeals court, even if no decision has been issued by that court. Every five or ten years, the Court will take an appellate case before judgment. The DoJ is encouraging the justices to do so here.
Third, Francisco asks at minimum for an administrative stay, which typically would last only a few days. He emphasizes that the abortion could take place at any time and is encouraging the justices to ensure that the abortions do not occur until at the least the justices have time to decide on whether to grant a longer stay that will last throughout the appeal.
The solicitor general argues that all four factors the Court looks to when considering such a stay, as Chief Justice John Roberts explained those factors in 2012 in Maryland v. King, supports granting such an unusual stay here. Foremost among those factors is that the justices are likely to take this case when they think it is ripe for final review, so granting the stay preserves the status quo long enough for the Court to decide the underlying legal question in the case.
The case is Hargan v. Garza, No. 17-654 at the U.S. Supreme Court.