Justice Department asks Supreme Court to stop Texas abortion law
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.