The Justice Department wants the U.S. Supreme Court to sanction ACLU attorneys who represented an undocumented teenage immigrant seeking an abortion, claiming they misled government attorneys.

The undocumented minor, known only as Jane Doe, sued the government last month alleging the Department of Health and Human Services was illegally preventing her from getting an abortion. The U.S. Court of Appeals for the D.C. Circuit ruled en banc in the teen's favor, and she got the abortion Oct. 25.  

But in the petition to the high court, Solicitor General Noel Francisco wrote that American Civil Liberties Union lawyers told Justice Department lawyers Doe would get the procedure Oct. 26, and DOJ planned to appeal the decision to the Supreme Court, asking for a stay of the D.C. Circuit opinion Oct. 25. Spokesman Devin O'Malley said in a statement that the ACLU effectively “thwart[ed] Supreme Court review” of the case.

“The government recognizes that respondent's counsel have a duty to zealously advocate on behalf of their client, but they also have duties to this Court and to the Bar,” the petition said. “It appears under the circumstances that those duties may have been violated, and that disciplinary action may therefore be warranted. At the least, this Court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”

In addition to sanctions, the Justice Department wants the underlying decisions vacated.

In a statement, ACLU legal director David Cole said “it was the ACLU's job as [Doe's] lawyers to see that she wasn't delayed any further” in getting her procedure.

“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.”

Doe is in custody in a government-funded shelter for undocumented minors in Texas. Under Texas law, she was required to undergo a counseling session at least 24 hours before the procedure, and the same doctor had to conduct both the counseling and the procedure. Doe had the counseling session earlier this month, after a district court ordered the government to allow her to do so.

Then, the D.C. Circuit stayed that lower court's order before Doe could get the abortion. After the D.C. Circuit ruled en banc to allow Doe to get the abortion, she did so, without needing a new counseling appointment because the same doctor did the procedure.

DOJ wrote in the writ that while the ACLU lawyers argue they do not have any legal obligation to keep the government informed of the timing of Doe's procedure, the ACLU repeatedly said in court and to the government that Doe would need a new counseling appointment before getting the abortion.  

“Given the dealings between the parties, respondent's counsel at least arguably had an obligation to notify the government of this incredibly significant development,” the writ said.

The ACLU lawyers include Brigitte Amiri, Arthur Spitzer and Daniel Mach.

The last high-profile disciplinary case before the Supreme Court involved former Foley & Lardner patent attorney Howard Shipley who, as counsel of record, filed a petition seeking court review in Schindler v. Lee. But the 37-page petition was nearly incomprehensible and filled with symbols and abbreviations. A footnote at the end explained a firm client, inventor Sigram Schindler, made “significant contributions” to the petition.

The justices in December 2014 issued an order to show cause for why Shipley should not be sanctioned for his conduct. Shipley hired Kirkland & Ellis' Paul Clement, the former solicitor general, to respond on his behalf and Clement said the inventor-client — a demanding person — was heavily responsible for the content. The court did not discipline Shipley but reminded members of the bar that petitions must be stated “in plain terms” and it is their responsibility, not the client's, to do so.

The government cited the Shipley case in its request for the high court to issue an order to show cause as to why disciplinary action should not be taken against the ACLU lawyers. The government suggested such action could be taken either by the Supreme Court itself or through referral to the state bars to which the ACLU lawyers belong.

The Justice Department faced political backlash for its failure to immediately challenge the D.C. Circuit's ruling before Doe got the procedure, including from Texas Attorney General Ken Paxton.

In a statement Oct. 25, Paxton's office noted the abortion occurred “after the Department of Justice failed to appeal to the United States Supreme Court a ruling allowing the abortion.” By that time, Paxton and 11 other Republican state AGs had prepared their amicus brief to support the government once it filed its appeal with the Supreme Court.

Supreme Court reporter Marcia Coyle contributed to this report.