JUSTICE DEPT.: BLOCK ABORTION LAW
Biden administration asks court to pause measure in Texas
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 Thursday at noon. 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 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.
Late last month, the providers asked the court to
take another look at the case and to put their request on an unusually fast track. Late Monday afternoon, after having taken no action on the request for almost a month, the court ordered officials in Texas to respond to the providers’ motion by noon Thursday, the same deadline it had set for a response to the Justice Department’s application.
The Justice Department, in a brief filed by Brian Fletcher, the acting solicitor general, said the two cases
were 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.
“In theory, providers could perform prohibited abortions and then assert SB 8’s unconstitutionality as a defense in the resulting enforcement actions,” Fletcher wrote. “But that avenue of review is not even theoretically available to pregnant women — whose rights SB 8 directly violates — because they cannot be sued under the law. And Texas crafted SB 8 to ensure that the threat of crippling liability would deter providers from taking their chances in court.”
Fletcher urged the justices to look at the big picture.
“SB 8 is plainly unconstitutional under this court’s precedents,” he wrote. “Texas has not seriously argued otherwise.”