Texas Urges High Court to Leave Six-Week Abortion Ban Intact
(Bloomberg) -- Texas officials urged the U.S. Supreme Court to leave in force the nation’s strictest abortion law, saying the justices should reject calls by the Biden administration and clinics to intervene in the high-stakes clash.
In court papers filed Thursday, Texas Attorney General Ken Paxton said states can structure their laws so as to insulate them from legal attack -- something Texas tried to do with a novel enforcement mechanism in the abortion law. The measure bans almost all abortions after about six weeks, before many women know they are pregnant, and puts enforcement in the hands of private parties.
“Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged in a pre-enforcement action in federal court,” Paxton argued.
The Justice Department on Monday called on the justices to halt the law while litigation goes forward. The department said Texas is unconstitutionally trying to avoid judicial review and “nullify” the Supreme Court’s abortion-rights precedents.
A federal appeals court last week let the law go back into effect after a trial judge ruled the measure unconstitutional and blocked it for two days.
The Justice Department also suggested the Supreme Court could hear arguments and issue a definitive ruling, rather than just an interim order. That would require the justices to take the unusual step of bypassing the appeals court, which hasn’t yet made a final ruling. Abortion providers have filed a similar request -- known as a petition for certiorari before judgment -- in a separate case.
Paxton said that, if the court grants review, it should also consider his arguments for overturning Roe v. Wade, the 1973 ruling that legalized abortion nationwide. The court is already set to hear arguments in December on a Mississippi appeal that seeks to overturn Roe. Mississippi is defending its ban on abortion after 15 weeks of pregnancy.
“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton argued.
The Supreme Court could act in a matter of days on the requests, though the justices aren’t bound by any deadline.
The high court let the law take effect on Sept. 1, largely shutting down the procedure in the second-most populous U.S. state. The majority said in that 5-4 decision that the clinics and doctors “raised serious questions regarding the constitutionality” of the measure but hadn’t overcome procedural obstacles stemming from the enforcement mechanism.
The Texas law, known as Senate Bill 8, bars abortion after fetal cardiac activity can be detected and puts infringing clinics at risk of being shut down. The measure lets private parties sue a clinic or anyone who helps a woman get an abortion -- and collect a minimum of $10,000 in damages per procedure -- but doesn’t authorize government officials to sue alleged violators.
The provision left it unclear how, if at all, a court could stop the law. Normally, judges faced with an unconstitutional law can issue an order directed at the government officials who have enforcement powers.
In its Sept. 1 decision, the Supreme Court said that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
The Justice Department says it doesn’t face the same obstacles the providers did, in part because the federal government can sue Texas directly without infringing on the state’s sovereign immunity. The providers tried to sidestep sovereign immunity by suing the judges and clerks who would handle any private enforcement suits.
Paxton said Thursday that the Justice Department “can point to no doctrine that allows a federal district court to enjoin the entire Texas judicial system and millions of individuals who were not parties.”
The department says it has the right to vindicate the supremacy of federal law, including the Constitution.
“The fundamental question presented in this case is whether states may nullify disfavored constitutional rights by purporting to disclaim their own enforcement authority and delegating enforcement of unconstitutional laws to private bounty hunters,” acting Solicitor General Brian Fletcher argued in papers filed Monday.
©2021 Bloomberg L.P.