While the Supreme Court is attempting to block Texas’ ban on most abortions, the Biden administration is asking for the Supreme Court to do so.
Except for a 48-hour pause by a district court, the law has been in force since September. It bans abortions when cardiac activity is detected. This usually happens around six weeks before most women realize they are pregnant.
Monday’s request by the Justice Department to the high court to overturn an order of a conservative federal appels court that allowed Texas to continue to enforce the country’s most stringent abortion restrictions. The novel law was created to be difficult to challenge in federal courts. Last Friday, the department announced its intentions.
In its appeal to the court, the Justice Department stated that Texas’s law violates the Supreme Court’s major abortion rights decisions. “By banning abortion long prior to viability — in fact, before many women even realize that they are pregnant,” it wrote.
“Now, the question is whether Texas’ nullification by this Court’s precedents should continue while the courts examine the suit of the United States. The Justice Department stated that it was not appropriate, as the district court acknowledged.
Administration also suggested that the court might grant full review of the Texas law and rule on the constitutionality this term. Lower courts have not yet done so. This is a rare instance of the Supreme Court intervening so early in a case.
Administration stated that the court’s involvement was justified by the Texas law and the possibility of similar measures being adopted in other states.
Texas was ordered by the high court to respond by Thursday afternoon.
It is unclear whether the Trump administration will prevail at the Supreme Court with a conservative majority. The court already has a Mississippi case that challenges abortion rights and has accepted to hear it.
Trump appointees were joined by two conservatives. They rejected an earlier plea to stop the law from being implemented in a separate case brought by abortion providers. This latest motion was not yet scheduled for Supreme Court action.
Although courts have blocked state laws that prohibit abortion outside of the womb for 24 weeks, Texas’s law is still legal. This is due to its unique structure, which leaves enforcement upto private citizens and not state officials. Any person who files a lawsuit against an abortion provider to enforce the law is eligible for at least $10,000 in damages.
The high court accepted in an unsigned order last month that there were “serious issues regarding the constitutionality Texas law”, but also raised “complex and new” procedural questions about who can sue and whether federal courts have the power to block the law’s enforcement.
Chief Justice John Roberts, in a dissident opinion, stated that he would have placed the “unprecedented law” on hold so that the court could examine “whether a state cannot avoid responsibility for its own laws” by deferring enforcement. Three liberal justices of the court also dissented.
Now, the question is whether or not the presence of the administration in the new lawsuit will matter. The 5th U.S. Circuit Court of Appeals has a three-judge panel. Circuit Court of Appeals responded late Thursday to the lawsuit by extending an earlier order that allowed the law to continue in force. The court voted 2-1 to support Texas because of the same reasons that the Supreme Court and another 5th Circuit panel mentioned in the provider’s lawsuit. It also questioned whether anyone could march into federal courts to challenge the law.
Texas requested assistance from the appeals court following the ruling by U.S. District Judge Robert Pitman that the Justice Department had the right to sue. Pitman also ruled that he had the power to block the law’s enforcement, writing that “women were unlawfully prevented” from exercising control over their own lives in ways that are protected under the Constitution.
However, the judge acknowledged that other courts could find a way around this conclusion.