Judge Edith Jones is at it, again. In a recent opinion, in which she was the loser, she traded angry barbs with her judicial colleagues who comprised the majority opinion. In the case of Doe v. Office of Refugee Resettlement, No. 18-40146 (5th Cir. 3/1/2018), the court addressed the situation of a pregnant immigrant who sought an abortion. A non-profit group referred the young immigrant to lawyers who would assist her in seeking an abortion. The lawyers met with the young immigrant who confirmed she wanted an abortion. They set the matter for hearing in a state court. In the U.S., a person can seek an abortion without parental approval if she proceeds to court.
But, the Office of Refugee Resettlement (ORR) would not let the two lawyers meet again with the young woman. The ORR passed a note to the lawyers apparently from Ms. Doe indicating she no longer wanted an abortion. ORR refused to produce the young woman at the hearing. The lawyers tried to meet with their client, but ORR refused to allow such a meeting.
About that same time, the state court appointed the two lawyers, Myles Garza and Rochelle Garza to represent the young immigrant. The Garza’s then removed the lawsuit to federal court and the federal court refused to allow the move to federal court. The Garza’s appealed that order.
Judge Jones characterized the meeting between the two lawyers and the young immigrant in dark terms, describing the meeting as “Doe came into contact with lawyers who had learned about her pregnancy” – a description to which the majority opinion objected. As the majority explained, the only issue that matters is that Ms. Doe once wanted an abortion and now may not want one. How the lawyers happened to come to represent their client should not matter.
Judge Jones accused these “agenda-driven” lawyers of preying upon a young immigrant, said the majority opinion. As the majority noted, judicial spin did not address the salient fact, whether the young unaccompanied immigrant has the right to an abortion or whether she wants one. Too, Judge Jones’ characterization ignored the contrary facts as presented by the Garza’s, two officers of the court. That is judge-speak for Judge Jones jumped to conclusions based upon little or no evidence.
Having dispensed with the accusations made by the dissent, the majority opinion found it an easy question that when a minor requests an abortion, a state court holds a hearing and the federal agency lacks a valid defense to the state court, then removal is proper. The proper course is to ask the minor female what does she want. The court found that if the minor female wanted an abortion, it is not the role of the federal agency to obstruct that wish.
The majority opinion addressed the constitutional argument posed by Judge Jones in her dissent. It noted that that argument was neither raised or briefed by either party. The court then found there was no “war” here, just simple fact issues – apparently referring to what does the minor female want.
In her dissent,. Judge Jones described Jane Doe as a “pawn” in a fight for control by the federal government over its relationship with unaccompanied minors who are in its custody because they have not been allowed legally into the country. Judge Jones argued that Ms. Doe was in the custody of ORR and they were legally responsible for her. Judge Jones accused the two lawyers of having an “avowed advocacy agenda” apparently based on Rochelle Garza’s status as a named plaintiff in a lawsuit for a class action for unaccompanied minors seeking abortion. The judge accused Ms. Garza of seeking to “usurp” decisions that ORR should make. The judge accused the Garza’s of not seeking to work with ORR in regard to Ms. Doe.
The two Garza’s, asserts Judge Jones, “have demonstrated by word and deed that their goal is to foster abortions.” The judge then asserted that what was “unsaid” in the majority opinion was that there was some constitutional right to abortion via this bypass court procedure in state court. Judge Jones argued that a bypass court is not needed when Ms. Doe already has a custodian, ORR.
Judge Jones apparently objected to the majority opinion describing the judge’s dissent as seeing this lawsuit as part of a “war.” Judge Jones insisted in a footnote that she is not Joan of Act. She explained that anyone who is “well-educated” should know that the phrase “win the battle, lose the war” referred to a Pyrrhic victory. Judge Jones was clearly annoyed, as were the majority opinion authors. Her focus on this tenuous request for an abortion as part of the “war” on abortion does seem over the top. I have written about Judge Jones before in regard to her difficulties with her colleagues on the Fifth Circuit. See my prior post here. Judge Jones can be very caustic for a judge. She seems very certain of her positions.
Back in 2011, Judge Jones grew impatient with Judge Dennis, a more liberal member of the court, when Judge Dennis asked one too many questions, at least in her opinion. Judge Jones told Judge Dennis to “shut up” and asked him to leave the court room. As Above the Law blog explained, it is exceedingly rare to hear one judge tell another to shut up. See Above the Law explanation about what happened in 2011 here. Judges Jones seems very certain of her positions. She did later apologize to Judge Dennis.
See the decision in Doe v. Office of Refugee Resettlement here.