Biden team asks for pause of Texas abortion law

WASHINGTON — The Biden administration is asking the Supreme Court to block the Texas law banning most abortions, while the fight over the measure’s constitutionality plays out in the courts.

The law has been in effect since September, aside from a district court-ordered pause that lasted just 48 hours, and bans abortions once cardiac activity is detected, usually around six weeks and before some women know they are pregnant.

The Justice Department asked the high court Monday to lift an order imposed by a federal appeals court that has allowed Texas to continue enforcing the nation’s strictest curbs on abortion through a novel law that was written to make it hard to challenge in the federal court system. The department had announced its intentions last Friday.

The Texas law defies the Supreme Court’s major decisions on abortion rights “by banning abortion long before viability — indeed, before many women even realize they are pregnant,” the Justice Department wrote in its plea to the court.

“The question now is whether Texas’ nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not,” the Justice Department wrote.

The administration also raised the prospect the court could decide to grant full review to the Texas law and rule on its constitutionality this term, even though lower courts have yet to do so. The Supreme Court rarely steps in this early in a lawsuit.

The Texas law and the possibility other states could adopt similar measures justify the court’s early involvement, the administration said.

The high court ordered Texas to respond by midday Thursday.

White House press secretary Jen Psaki said at Monday’s news briefing President Joe Biden would protect abortion rights, and the Justice Department would lead efforts to ensure that women have “access to fundamental rights that they have to protect their own health.”

It’s not clear whether the administration will prevail at a Supreme Court with a conservative majority that already has agreed to hear a major challenge to abortion rights in a case from Mississippi.

The Supreme Court has once before rejected a plea to keep the law on hold, in a separate lawsuit filed by abortion providers. There was no immediate timetable for action on this latest motion.

While courts have blocked other state laws effectively banning abortion before a fetus can survive outside the womb, roughly around 24 weeks, the Texas law has so far avoided a similar fate because of its unique structure that leaves enforcement up to private citizens, rather than state officials. Anyone who brings a successful lawsuit against an abortion provider for violating the law is entitled to claim at least $10,000 in damages.

In the 5-4 vote last month to allow the law to remain in effect, the high court acknowledged in an unsigned order that there were “serious questions regarding the constitutionality of the Texas law” but also “complex and novel” procedural questions about whom to sue and whether federal courts had the power to stop the law from being enforced.