Miami Herald

Justice Department asks Supreme Court to stop Texas abortion law

- BY ROBERT BARNES

The Justice Department asked the Supreme Court on Monday for an emergency halt to the Texas law that has practicall­y stopped access to abortion there.

The action means the court will again have to confront the controvers­ial law, which generally outlaws the procedure after what Texas defines as six weeks of pregnancy. In a 5-4 decision last month, the court allowed the law to go into effect, although dissenters said it violated the nearly 50-year-old Roe v. Wade precedent that guaranteed a right to abortion before fetal viability.

DOJ raises new arguments in its filing and says the court must intervene to prevent an end run around its authority and the Constituti­on.

The Texas law “is clearly unconstitu­tional,” and the federal government “has authority to seek equitable relief to protect its sovereign interests — including its interest in the supremacy of federal law and the availabili­ty of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constituti­onal rights,” wrote acting Solicitor General Brian Fletcher.

“Allowing S.B. 8 to remain in force would irrepaby rably harm those interests and perpetuate the ongoing irreparabl­e injury to the thousands of Texas women who are being denied their constituti­onal rights,” Fletcher added.

There are now two cases at the high court seeking to stop the Texas law, one filed by abortion providers and the other by DOJ. The DOJ petition asks for an emergency stop while litigation continues.

The department’s filing followed Thursday’s federal appeals-court decision that allowed the law to remain in effect. A lowercourt judge last week said it was unconstitu­tional.

The case adds drama to a Supreme Court term that will determine how far the court’s six-justice conservati­ve majority will go in redefining the court’s abortion jurisprude­nce.

That the court was willing to allow the law to go into effect was a sign that its newest members, all chosen by President Donald Trump, are at least open to reconsider­ing court precedents. Three of the dissenters said the law was flatly unconstitu­tional.

On Dec. 1, the court will hear a challenge to a Mississipp­i law that conservati­ves have urged the court to use to overturn the constituti­onal right to abortion establishe­d by Roe and reaffirmed in a 1992 case.

Mississipp­i’s law would ban most abortions after 15 weeks and was struck down lower courts as a clear violation of Supreme Court precedent regarding previabili­ty restrictio­ns. That limit is generally gauged to be 22-24 weeks.

The Supreme Court previously has turned away petitions from states that have had their laws prohibitin­g abortions before that time span blocked by lower courts. So the decision to

take Mississipp­i’s challenge was significan­t. More than 125 friend-of-the-court briefs have been filed on both sides of the issue.

Texas’ law is far more restrictiv­e. It bars abortion as early as six weeks into a pregnancy, when many women do not realize they are pregnant, and makes no exceptions for rape or incest.

It, too, would probably have been struck down, except for an enforcemen­t mechanism specifical­ly designed to avoid federal court review.

Usually in challengin­g abortion restrictio­ns, opponents seek to enjoin government officials from enforcing laws that violate constituti­onal protection­s. But the Texas law is enforced by private citizens rather than the state government. Any individual can sue anyone who helps a woman get an abortion after cardiac activity is detected in the womb. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.

 ?? J. SCOTT APPLEWHITE AP | Oct. 18, 2021 ?? 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.
J. SCOTT APPLEWHITE AP | Oct. 18, 2021 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.

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