Abortion Shenanigans—Contra Lederman, Part 1

by Ed Whelan

In a post on Tuesday, I highlighted some of the extraordinary developments in Garza v. Hargan, the case involving an unaccompanied pregnant alien minor (Doe) who, in federal custody, obtained an order requiring the federal government to enable her to have an abortion. In a very long (8000-word) blog post, law professor Marty Lederman slams the Solicitor General for filing a certioriari petition that he claims is “fundamentally a press release, for an audience other than the Justices of the Supreme Court itself.”

As I will show, Lederman’s one-sided and tendentious critique is rife with errors, distortions, and unfounded innuendo. I’ll try to be brief:

1. Lederman claims that the en banc D.C. Circuit’s order merely “denied the government’s motion to stay a preliminary injunction” and therefore “should have no precedential effect even in this case, let alone in future cases.” Therefore, he argues, there is absolutely no reason for the SG to have filed its certiorari petition.

But the SG argues that the en banc order “also affirmed the substance of the district court’s injunctive relief,” and it points out that the order “remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction” and also invoked its “jurisdiction over this appeal.”

Lederman doesn’t acknowledge the SG’s argument, much less dispute it. And somehow I don’t think that he’ll be disputing the ACLU in the future when it invokes the D.C. Circuit order as precedent.

To be sure, the en banc D.C. Circuit did not bother (as the SG points out) to “specify its precise reasoning,” but that’s a criticism that should be leveled at the D.C. Circuit majority, not an argument against its order having any precedential effect.

2. Lederman grossly misleads his readers as to the nature of the SG’s certiorari petition. He emphasizes early on that the case is moot (now that the abortion has already taken place), and he pretends to score a point by stating that the SG’s petition itself “acknowledges” the mootness. Who are these yahoos, he would have his readers wonder, who are asking the Supreme Court to review the substantive merits of a case that they concede is moot?

It isn’t until more than halfway through his very long post that the persevering reader will first get a hint that the SG’s petition isn’t in fact seeking the Court’s full substantive review but is instead requesting only that the Court vacate the judgment below on so-called Munsingwear mootness grounds. In other words, mootness, far from being something that the petition merely “acknowledges,” is the very foundation of the limited relief that it is seeking.

3. Lederman is baffled by the petition’s supposedly “obsessive, misguided focus” on the misleading statements by Doe’s counsel that led to her having the abortion before the federal government filed its emergency application in the Supreme Court for a stay of the D.C. Circuit’s order. But there should be nothing baffling here. Vacating a ruling on Munsingwear grounds invokes the Court’s equitable power, and the argument that Doe’s team of lawyers bamboozled the government’s lawyers into delaying the filing of their stay motion until after the abortion occurred is plainly relevant to the exercise of that power.

4. Lederman’s defense of the conduct of Doe’s lawyers is feeble. Lederman accepts that Doe’s team informed the government on the evening of October 24 that the abortion “could not occur” (Lederman’s phrase) until the morning of October 26. In this context, Lederman’s effort to defend other statements by the team as anything other than deeply deceptive fails.

Consider, if you will, if something similar had happened in the death-penalty context: On October 24, lawyers for the capital convict inform the state’s lawyers that they intend to file an emergency motion for stay in the Supreme Court. On the evening of October 24, state lawyers tell the lawyers for the capital convict that the execution will not take place until the morning of October 26 because a medical exam required to occur 24 hours before the execution can’t occur until the morning of October 25. In reliance on that representation, the lawyers for the capital convict decide to file their stay application on the morning of October 25. Then, unbeknownst to them, the state’s lawyers determine that an early medical exam satisfies the requirement and proceed with the execution early in the morning of October 25. Would anyone defend the state’s lawyers by the sort of quibbling that Lederman engages in? Of course not. (To be sure, you might argue that the state’s lawyers in my hypothetical have a higher duty, but Lederman whitewashes the conduct of Doe’s lawyers altogether.)

More in Part 2.

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