In a highly unusual move, the Justice Department asked the Supreme Court on Friday to discipline lawyers for the American Civil Liberties Union because they helped a 17-year old migrant obtain an abortion two weeks ago.
The move escalates a legal battle over abortion that arose when Trump administration officials refused to allow the young woman to leave a refugee center with a guardian to see an abortion provider. Administration officials insisted the government need not "facilitate" abortion by allowing her to leave their custody in South Texas.
But the ACLU sued on her behalf and a federal judge ruled the federal government must "promptly and without delay" allow the teenager — who has not been publicly identified and is referred to as "Jane Doe" in court documents — to see a doctor to have the abortion she sought.
A U.S. appeals court upheld that ruling on Oct. 24, and she had the abortion — paid for with private funds — early the next day, before the administration could lodge an emergency appeal in the high court.
Atty. Gen. Jeff Sessions and other Trump administration lawyers reacted angrily.
"This was a total surprise. And we're disturbed about it," Sessions said in a Fox News interview last weekend.
On Friday, new Solicitor Gen. Noel Francisco filed an appeal that asks the Supreme Court to set aside the lower court's rulings and to consider "disciplinary action" against the ACLU.
They "kept the government in the dark about when Ms. Doe was scheduled to have an abortion," he told the justices in the case of Hargan vs. Garza. "Given the extraordinary circumstances" of the case, the court should consider sanctions against one or more of the ACLU lawyers, he said.
The ACLU fired back, saying the blame, if anything, lies with administration lawyers who failed to act quickly to file their emergency appeal.
"This administration has gone to astounding lengths to block this young woman from getting an abortion," said ACLU legal director David Cole. "After the courts cleared the way for her to get her abortion, it was the ACLU's job as her lawyers to see that she wasn't delayed any further — not give the government another chance to stand in her way."
"Our lawyers acted in the best interest of our client and in full compliance with court orders and federal and Texas law," Cole said. "That government lawyers failed to seek judicial review quickly enough is their fault, not ours."
Justice Department spokesman Devin O'Malley said "the ACLU misled the United States as to the timing of Jane Doe's abortion. After informing Justice Department attorney the procedure would occur on October 26th, Jane Doe's attorneys scheduled the abortion for the early morning hours of October 25th, thereby thwarting Supreme Court review."
Cole disagreed. He said the ACLU initially assumed the process would take two days, but made no promises or commitments. He said a doctor who had earlier counseled the young woman was available to do the procedure on Oct. 25.
Francisco, a former clerk for the late Justice Antonin Scalia, represented Catholic bishops and charities two years ago in a challenge to the Obama administration rule requiring employers to provide a full range of contraceptives for female employees.
The administration said the religious employers did not have to pay for the coverage, but put that responsibility on their insurers. Francisco argued that this arrangement would still make the religious employers complicit in sin.
The solicitor general represents the government before the high court. The Senate confirmed Francisco in September on a party-line vote of 50-47.
In Friday's appeal, Francisco said a young woman who crosses the border illegally has no right to obtain an abortion. Under the court's rules, the ACLU will have 30 days to file a response.
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1:45 p.m.: This article was updated with additional details about the arguments in the case and background information about Solicitor Gen. Noel Francisco.