Carter Phillips of Sidley Austin, speaking at a Federalist Society conference in 2008. Credit: Diego M. Radzinschi / ALM

The American Civil Liberties Union on Monday called “baseless” the U.S. Justice Department’s accusation that lawyers for the group acted unethically in their advocacy for a pregnant immigrant teen who sought an abortion.

The civil liberties group was responding in the U.S. Supreme Court to a petition filed Nov. 3 by U.S. Solicitor General Noel Francisco. The conflict between the Justice Department and the ACLU centers on the scheduling of the teenage girl’s abortion and communications about that timing between the lawyers on both sides. The abortion had been at the center of a case in Washington federal district court.

“The solicitor general has filed extraordinary and baseless complaints to distract from his own failure to act promptly in response to an adverse decision of the court of appeals,” Sidley Austin’s Carter Phillips, representing the ACLU, said in the new court filing in Hargan v. Garza. “The ACLU’s lawyers acted in the best interest of their client and in full compliance with the law. That the government failed to seek further review quickly enough is entirely their own responsibility.”

In his brief, Phillips, chairman of Sidley Austin’s executive committee and a veteran Supreme Court advocate, also asked the justices to reject Francisco’s argument that the lower court decision allowing the teen to have the abortion should be vacated and all claims related to abortion access for unaccompanied minor immigrants be dismissed.

The teen, known as “Jane Doe,” had sued the U.S. Department of Health and Human Services in October, alleging the Trump administration was preventing her from obtaining an abortion despite her compliance with Texas legal requirements. The girl was being detained in a Texas shelter under contract with the federal government. The U.S. Court of Appeals for the D.C. Circuit, in an unsigned, en banc decision, ruled in the teen’s favor and she obtained an abortion on Oct. 25. The underlying suit remains pending.

Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ The National Law Journal

In the Justice Department’s high court petition, Francisco said the teen’s lawyers had told the government that the abortion procedure would occur on Oct. 26, and Justice department lawyers, in turn, said they planned to appeal the D.C. Circuit ruling to the Supreme Court on Oct. 25.

Francisco also claimed that the teen’s lawyers said they would keep the government informed of changes in the schedule but did not do that when a doctor became available to perform the abortion on Oct. 25.

U.S. Attorney General Jeff Sessions in October told Fox News that ACLU lawyers committed “a breach of the kind of confidence a lawyer should have with one another and we’re very upset about it. And I think it’s a serious problem, should not have happened and we’re disturbed about it, I’ve got to tell you.”

Francisco argued that the actions of the ACLU lawyers denied the government an opportunity for the Supreme Court to review of the lower court decision. He suggested that the justices might wish to issue an order to show cause why disciplinary action should not be taken against those lawyers.

Phillips disputed the government’s account of the communications between the two sides. The government, he said, failed to seek review in the Supreme Court “based on assumptions it made about the timing of Ms. Doe’s procedure, not on the basis of any commitments from Ms. Doe’s lawyers.”

“If government counsel wished to ensure that they would have an opportunity to seek a stay before the abortion procedure, they could and should have requested such an assurance from respondent’s counsel and, if they did not receive a sufficiently clear commitment, they could and should have immediately sought relief from this court,” Phillips wrote. “They inexplicably failed to take these reasonable steps, and cannot now blame respondent’s counsel for the consequences of their own inaction.”


The ACLU’s brief in opposition is posted below:

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