Abortion Shenanigans—Contra Lederman, Part 2

by Ed Whelan

A few more (non-exhaustive) criticisms—numbered serially from my Part 1 post—of law professor Marty Lederman’s slam of the Solicitor General’s certiorari petition in Garza v. Hargan:

5. Lederman claims that the government offers only a “threadbare (at best)” argument in support of its substantive position. He claims (in italics) that the SG “does not cite a single legal authority” in support of its argument. But he quotes only the paragraph from its summary of argument (not the usual place for citations) and buries in a footnote that few readers will find that the SG later cites “four precedents … for the unremarkable proposition that ‘the government generally need not facilitate abortions.’” So if this proposition is so “unremarkable,” why would Lederman expect lengthy legal argument?

6. Lederman claims that the district court’s injunction did not require the government to “facilitate” an abortion but instead “was, for all relevant purposes here, entirely prohibitory.” But his claim assumes that HHS could responsibly have surrendered custody of Doe. As the SG’s petition argues (in a passage Lederman does not acknowledge or engage):

As the ORR’s Deputy Director for Children’s Programs explained, authorizing Ms. Doe to attend such appointments [i.e., appointments for the counseling session required under state law and for the abortion] would entail facilitating an abortion. HHS or shelter staff would need to (and did) attend trips to any appointment to maintain ORR’s custody of Ms. Doe. And even if HHS or the shelter did not transport Ms. Doe to the abortion clinic, approval would still require that HHS devote time and staff towards drafting and executing approval documents and providing direction to the shelter on its role in connection with the procedure, and would require that HHS expend resources to monitor Ms. Doe’s health after the abortion.

Here as elsewhere, Lederman simply quotes Judge Millett’s opinion as though her position were beyond dispute. (He also seems to imagine that the government is making an argument about moral complicity.)

7. Lederman dismisses out of hand the government’s argument that Doe “could have left government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor.” Among other things, he somehow thinks that the proposition that Doe “could not have obtained an abortion in her home country” means that the federal government must enable her to obtain one here. But surely the laws enacted in foreign countries are no proper part of the inquiry whether the federal or state governments have imposed an “undue burden” on the ability to obtain an abortion. Or is our country supposed to become the abortion mecca for pregnant minors around the world?

8. Lederman maintains that “there is no reason for the Court to grant” certiorari, given the absence of a circuit split and other factors (including his mistaken claim—see point 1 of my Part 1 post—that the D.C. Circuit’s order was limited to the “question of whether a stay pending appeal should be granted). Somehow I suspect that if the D.C. Circuit had ruled the other way, Lederman would be clamoring for certiorari. In any event, the magnitude of the issue for HHS’s future handling of immigrant minors, the threat that the ruling below will make our country a magnet for pregnant immigrant minors, and the shenanigans in this case make it a worthy candidate for a grant (and for the simple Munsingwear vacatur that the SG requests).

9. Lederman posits at the outset the “oddity” that “so many [career] attorneys apparently declined to [sign and thus to] be associated with” the SG’s certiorari petition. But there turns out to be very little or nothing underlying his observation.

For starters, the four lawyers on the petition with whom I am familiar are all lawyers of high reputation, and the other two, as Lederman acknowledges, are in fact career lawyers.

Lederman complains that no lawyers from HHS signed the petition, but I’m told that it’s not unusual for there to be no HHS signatory on a certiorari petition. (A quick Internet search yielded this one and this one, both without HHS signatories.) [12:35 p.m.: I’ve slightly modified the second clause of the first sentence of this paragraph.] 

So the “so many” attorneys who declined to sign end up being reduced to one possible Assistant in the Solicitor General’s office.

On this possibility, a former attorney in the Office of the Solicitor General advises me that “in circumstances of extraordinary expedition, it is not unprecedented for a Deputy SG to write a filing himself.” (Lederman contends that “would be a significant deviation from ordinary practice.”) Further, two of the signatories on the petition—including the Deputy SG—are former Assistants themselves. So if no current Assistant was assigned to work on the petition, no Assistant would sign it.

But perhaps an Assistant was assigned to the petition. If so, Lederman insinuates, one of the “several Republican and conservative attorneys” in OSG must have declined to sign it. But he fails to contemplate another possibility—that a liberal assistant was assigned to the matter and for craven personal reasons (such as not being subjected to the sort of abuse that Lederman is flinging), rather than out of sound professional judgment, declined to sign.

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