Justice Department asks Supreme Court to block Texas’ 6-week abortion ban
The law is "clearly unconstitutional" and allowing it to remain in effect would "perpetuate the ongoing irreparable injury to thousands of Texas women who are being denied their constitutional rights," the Justice Department argues.
The court asked for a response from Texas by noon on Thursday.
In addition to asking the justices to halt the law now, the government also wants the court to agree to hear oral arguments this term and decide for itself whether the law passes constitutional muster. If the justices were to agree to that request, it would raise the stakes in the dispute and bring final resolution to the case by the end of June.
It would also allow the justices to consider the issue with full briefing and oral arguments, instead of having to weigh in on an emergency basis. In September, the first time the Supreme Court allowed the law to go into effect as a part of another challenge, it did so on its emergency docket -- often referred to as the "Shadow docket" -- drawing criticism from those who felt like the justices acted hastily without the benefit of full briefing on the matter.
Under normal circumstances, however, the justices don't usually like to add a case to their docket before it has gone through the regular appeals process.
As the justices consider the law again, they will review the record detailing how the law has impacted women and clinics on the ground over the past six weeks. In sworn declarations, abortion providers say that it has had a chilling effect because staff are "plagued by fear and instability," and they "remain seriously concerned that even providing abortions in compliance with S.B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain" under the law's enforcement provision, which offers up to $10,000 in damages.
And in a stark rebuke to the Supreme Court, Pitman wrote: "that other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of the offensive deprivation of such an important right."
The 5th US Circuit Court of Appeals, however, has stayed Pitman's ruling, meaning the law is in effect for now. It rejected the Justice Department's petition to lift the stay last Thursday night. DOJ immediately told reporters it planned to appeal.
A key issue in the case is whether the federal government has the legal right or "standing" to bring the challenge at hand. The DOJ says it does, in part, because private individuals bringing suit are acting as agents of the state and the government has the power to protect the fundamental rights of its citizens.
But Texas Attorney General Ken Paxton, a Republican, says the federal government doesn't have the right to step in.
He is supported by a brief filed by Jonathan Mitchell, one of the architects of the law who is now representing three individuals who are interested in bringing lawsuits against those who may violate the law.
Mitchell wrote that the states "have tools in their arsenal to limit the judiciary's opportunities to pronounce their statutes unconstitutional."
Mitchell said that states can structure their laws in a way that "reduces or eliminates" laws from being challenged before they are actually enforced. "And that is what Texas has done," he said. "By prohibiting state officials from enforcing the statute and by authorizing the citizenry to enforce the law through private civil-enforcement actions, Texas has boxed out the judiciary from entertaining" such challenges.
Mitchell added that abortion is "not a constitutional right," but instead it is "a court-invented right that may not even have the majority support on the current Supreme Court."
In Monday's briefs, the Justice Department called Texas' arguments "breathtaking" and "dangerous."
"If Texas is right, States are free to use similar schemes to nullify other precedents or suspend other constitutional rights," DOJ said.
The court has yet to act on a similar petition to block the Texas law brought by abortion providers in the state, suggesting that the justices may want to deal with both disputes at the same time. The cases come up on the court's emergency docket -- sometimes referred to as its "shadow docket"-- that has come under criticism of late because the court acts without the benefit of a full briefing schedule and oral arguments.
In December, the Supreme Court will also consider a Mississippi law that bans the procedure after 15 weeks. In that case, the state is asking the court to overturn Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
Neither the Texas law nor the Mississippi law has an exception for rape or incest.
This story has been updated with additional details.
October 18, 2021, 6:10 pm