DOJ calls on justices to block Texas abortion law
Supreme Court hints a decision on brief could happen soon
WASHINGTON — In a forceful brief filed Monday, the Biden administration urged the Supreme Court to temporarily block a Texas law that bans most abortions in the state while a legal challenge moves forward, calling the law “plainly unconstitutional.”
Leaving the law in effect, the brief said, would allow Texas to flout a half-century of Supreme Court precedents that forbid states from banning abortions before fetal viability, or about 22-24 weeks into a pregnancy. The challenged law, called Senate Bill 8, has been in force since the beginning of September and effectively bars abortions after around six weeks of pregnancy.
“It virtually eliminated access to abortion in Texas after six weeks of pregnancy,” the brief said. “Texas has, in short, successfully nullified this court’s decisions within its borders.”
The court signaled that it may act quickly.
Justice Samuel Alito, who oversees the federal appeals court responsible for Texas, asked officials there to file their response to the Justice Department’s application by noon Thursday. The court could rule in the following days.
Saying the matter was urgent and important, the brief also asked the court to consider adding the question of the law’s constitutionality to the docket of cases it plans to hear this year, bypassing the appeals court, which is scheduled to hear arguments on it in December. The Supreme Court is already scheduled to hear another major abortion case, involving a Mississippi law, in December.
“SB 8 is an affront to the United States’ sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this court remain available to challenge unconstitutional state laws,” the Justice Department brief said.
In a bitterly divided decision last month in a different case, one brought by abortion providers regarding the same law, the Supreme Court let the law go into effect, effectively ending access to abortion for most Texas women. The majority said there were procedural obstacles that counseled against granting the providers’ request to block the law.
The DOJ, in a brief filed by Brian Fletcher, the acting solicitor general, said the new challenge was different. The federal government has interests and powers different from those of private litigants, he wrote, adding that it is not required to overcome the procedural hurdles at issue in the earlier ruling.
The Texas law, which has no exception for pregnancies resulting from rape or incest, has an unusual feature that has complicated efforts to challenge it in court. Instead of making state officials responsible for enforcing the law, the law allows private citizens to sue abortion providers and others who help women obtain the procedure. That help can include financial assistance or giving a woman a ride to a clinic.
The plaintiffs need not claim any connection to those they sue. If they prevail, the law entitles them to damages of at least $10,000, along with legal expenses. Abortion providers sued under the law must pay their own legal fees whether they win or lose.
The law’s drafters, Fletcher told the justices, “have candidly acknowledged that the law was designed to deter constitutionally protected abortions while evading judicial review.”
The law’s defenders say that providers can challenge the law by violating it, getting sued and asserting the law’s unconstitutionality as part of their defense.
Last week, a divided threejudge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, stayed Pitman’s ruling, reinstating the law. The application filed Monday asked the Supreme Court to lift the stay.
The majority opinion in last month’s 5-4 Supreme Court decision refusing to block the law was unsigned and consisted of a paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions.
The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
“The court’s order is stunning,” Justice Sonia Sotomayor wrote in dissent. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”