Kevin Daley, DCNF
After six months, the U.S. Supreme Court has not acted on a Justice Department request to vacate a lower court order requiring President Donald Trump’s administration to facilitate an abortion for an illegal alien and punish ACLU lawyers for allegedly unethical behavior.
The Court’s protracted silence in the matter is somewhat unusual, suggesting the justices are divided as to how the case should proceed.
The case, Azar v. Garza, was occasioned in October 2017, when an undocumented teen in federal custody, known in court papers only as Jane Doe, learned she was pregnant and asked authorities to terminate her pregnancy. The U.S. Department of Health and Human Services refused, claiming it had no obligation to facilitate abortions for minors in their care.
The full U.S. Court of Appeals for the D.C. Circuit concluded the government’s actions imposed an undue burden on abortion access, in violation to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey.
ACLU lawyers immediately moved to schedule an abortion, which occurred on Oct. 25, before the administration could appeal to the Supreme Court.
In a remarkable filing to the justices, the Justice Department claimed ACLU lawyers deliberately misled them as to the timing of the procedure and asked the justices to sanction the responsible attorneys. They also asked the high court to vacate the D.C. Circuit’s decision under a legal rule known as Munsingwear doctrine. The doctrine provides that decisions that are mooted pending Supreme Court review should be expunged.
Their petition has been relisted 14 times since the petition was first filed in November 2017. The justices meet in private conference on a regular basis throughout the term to discuss, among other things, which cases they will review. A list of cases is set for discussion in advance of each conference. A case is “relisted” when the Court takes no action on the petition and reschedules it for discussion at a future date.
Few cases are ever relisted, and fewer still are relisted as many times as the Garza case.
Relists sometimes precede a decision to grant a petition and schedule it for briefing and argument. In other instances, cases are held over while one or more of the justices writes an opinion concerning the Court’s decision to deny the petition at issue.
It’s impossible to know what’s happening with respect to the Garza case, but the possible alternatives are clear — either a grant is coming, or one of the justices is writing an opinion about the Court’s decision.
Action on the much-watched petition could come as soon as Monday.
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