Legal Ethics

Justice Department asks Supreme Court to consider discipline for ACLU lawyers in abortion case

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Rob Crandall /

The U.S. Justice Department alleges lawyers for the American Civil Liberties Union effectively thwarted Supreme Court review in the case of a teen immigrant seeking an abortion by misleading government lawyers about how quickly she could have the procedure.

In a cert petition (PDF) filed Friday, the government says discipline may be warranted against the ACLU lawyers, the National Law Journal (sub. req.), the Washington Post and BuzzFeed News report. The government is also asking the court to vacate a federal appeals ruling that allowed the abortion to proceed.

The 17-year-old girl at the center of the case was being held in a federal shelter because she entered the country illegally. The government had said it did not have to facilitate the abortion. An en banc federal appeals court disagreed in an Oct. 24 ruling. The girl had the abortion early the next day.

Government lawyers believed the teen left the facility on Oct. 25 for required counseling, rather than for an abortion. The Justice Department says the ACLU lawyers were aware of its plans to seek a stay with the U.S. Supreme Court that same day.

Under Texas law, the abortion counseling and the abortion must be provided by the same physician, and they must be separated by at least 24 hours. The teen had a previous counseling appointment with a doctor, but the government says the teen’s lawyers had represented that a new doctor would perform the procedure, which would require a new counseling appointment and a one-day wait.

But the former doctor who counseled the teen agreed to perform the abortion, and a second counseling appointment was not needed. The government “at least arguably had an obligation to notify the government of this incredibly significant development,” the cert petition says.

“In light of the extraordinary circumstances of this case,” the cert petition says, “the government respectfully submits that this court may wish to issue an order to show cause why disciplinary action should not be taken against respondent’s counsel—either directly by this court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this court’s review.”

The petition says lawyers have duties to the court and to the bar. “It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted,” the petition says. “At the least, this court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”

ACLU legal director David Cole responded to the government filing in a statement.

“This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”

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