BRIEFS SUBMITTED AS PRELUDE TO ABORTION HEARING

Court will examine Texas law’s unique enforcement policy

The Biden administration told the Supreme Court on Wednesday that intervention is required to keep Texas from “nullifying” the constitutional right to abortion that the court established nearly 50 years ago.

The brief was submitted in advance of Monday’s hastily scheduled hearing on the Texas law that has virtually shut down abortion within the state’s borders. Texas, the federal government, abortion providers and individual citizens who want to enforce the law called Senate Bill 8 each made their cases.

“Texas insists that the Court must tolerate the state’s brazen attack on the supremacy of federal law because SB 8’s unprecedented structure leaves the federal judiciary powerless to intervene,” acting solicitor general Brian H. Fletcher wrote in the government’s brief. “If Texas is right, no decision of this Court is safe.”

Texas countered that its law may be challenged in state court when it is enforced, but rejected the notion the federal government has a role to play in trying to stop it at this point.

“Texas does not cause the United States injury by the mere existence of an allegedly unconstitutional state law that may affect private parties,” Texas Attorney General Ken Paxton said in his brief.

The cases the court will hear Monday raise complicated legal procedure questions precisely because SB 8 was drafted to avoid federal court review. Its effect is to ban abortions after about six weeks — before many know they are pregnant. But its enforcement structure was designed to keep it from being stopped by federal judges before it can go into effect — the fate of other state laws prohibiting abortion earlier than Supreme Court precedent allows.

The Texas case is only the leadoff in what could be a momentous term for reproductive rights. The justices on Dec. 1 will consider a Mississippi law that bans most abortions after 15 weeks.

That case, unlike the Texas law, will have implications for Roe v. Wade and Planned Parenthood v. Casey, the cases that, respectively, first established a constitutional right to abortion in 1973 and reaffirmed it in 1992.

In United States v. Texas and Whole Women’s Health v. Jackson, both to be argued Monday, the justices will examine unique enforcement policy for the law’s prohibition on abortions after cardiac activity is noted in the embryo, as early as about six weeks. There is no exception for rape or incest, and the abortion patient cannot be sued.

Usually in challenging abortion restrictions, opponents seek to enjoin government officials from enforcing laws that violate the constitutional protections the Supreme Court has recognized. Numerous state laws that would have banned previability abortions were struck by federal courts on those grounds.

But the Texas law is enforced by private citizens rather than the state government. Any individual can sue anyone who aids or abets a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.