Justices throw out lower-court ruling in teen abortion case

The justices handed the federal government a partial victory today in Azar v. Garza, in which it had asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The teenager, known in the litigation as “Jane Doe,” had been caught trying to enter the United States illegally; the federal government had refused to allow her to leave the shelter where she was being held in custody, arguing that it did not want to facilitate her abortion. The justices today granted the government’s request to throw out the D.C. Circuit’s ruling, but it rejected the government’s plea to sanction the teen’s lawyers, whom the government accused of misleading it about when Doe would obtain her abortion.

In October 2017, the D.C. Circuit ruled for Doe, who had an abortion the next day. The government told the justices that it would have sought Supreme Court review, but was unable to do so because the teenager’s lawyers had not kept it informed about the timing for the procedure. Therefore, the government argued, the appeal is moot and the Supreme Court should not allow the lower court’s decision to serve as future precedent, particularly because it is not the government’s fault that the case is moot. As this blog’s John Elwood has explained, this doctrine, known as Munsingwearvacatur, is based on the theory that “the party seeking review shouldn’t be stuck with a decision it was trying to overturn when it lost that opportunity through no fault of its own.”

The justices first considered the government’s petition at a private conference in early January, but they did not act on it until today – prompting speculation that the court was fiercely divided and possibly drafting multiple opinions. But the five-page unsigned opinion that accompanied the justices’ disposition of the case today was relatively subdued, and there were no public dissents. If anything, the taut document had the feel of a carefully negotiated compromise, particularly in the way it dealt with the sanctions question.

After recounting the history of the case, the court explained that it fell “squarely within the Court’s established practice”: The only claim on which the D.C. Circuit ruled, the teenager’s individual claim seeking an abortion, “became moot after the abortion.” There is no dispute, the court reasoned, that the teenager and her lawyers were the ones who moved quickly to allow her to get an abortion, allowing her to keep the advantage of the D.C. Circuit judgment in her favor.

Having given the government part of what it wanted – a ruling throwing out the D.C. Circuit’s opinion, so that it cannot serve as precedent going forward – the court then turned down the government’s suggestion that it should sanction the teenager’s lawyers – who, the government contended, made “what appear to be material misrepresentations and omissions” in an effort to “thwart” Supreme Court review. The justices acknowledged that they take such accusations “seriously” and stressed that “all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court.” “Particularly in fast-paced, emergency proceedings like those at issue here,” the justices continued, “it is critical that lawyers and courts alike be able to rely on one another’s representations.” But at the same time, the court observed, “lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the Munsingwear question here.”

The justices denied review in the case of Carlos Trevino, who was sentenced to death for his role in the 1996 sexual assault and murder of Linda Salinas. Trevino’s appeal centered on evidence that, he argued, his trial attorney should have introduced (and which was provided to a federal trial judge as part of his later efforts to overturn his conviction) – for example, that Trevino suffered from fetal alcohol syndrome and was abused as a child. The U.S. Court of Appeals for the 5th Circuit ruled that, even if Trevino was correct that the issue was properly before the federal courts and that his trial attorney’s performance was inadequate, he still could not win because he was not prejudiced by his lawyer’s poor performance. The court of appeals explained that, even if the jury had heard the new evidence, it likely still would have sentenced Trevino to death because the new evidence was “double-edged” – that is, it could have also caused the jury to be less sympathetic to Trevino. Trevino asked the justices to weigh in on the 5th Circuit’s ruling on the new evidence, as well as more broadly on the standard for determining whether a defendant in a death-penalty case was prejudiced by his lawyer’s inadequate representation, but they declined to do so.

Justice Sonia Sotomayor dissented from today’s denial, in a 13-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor complained that the 5th Circuit’s holding that Trevino could not prevail because the new evidence was “double-edged” “is in direct contravention of” the Supreme Court’s cases, which have “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” But because of the 5th Circuit’s “flagrant error,” she continued, Trevino “remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.” “That result,” Sotomayor concluded, “is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.”

The justices did not add any new cases to their merits docket for next term. They asked the federal government to weigh in on one new case, Airline Service Providers v. Los Angeles World Airports, involving the “market participant” exception to federal pre-emption. There is no deadline for the government to file its brief in the case.


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