Department of Justice urges Supreme Court to block Texas abortion law

WASHINGTON – In a staunch letter filed Monday, the Biden government called on the Supreme Court to temporarily block a Texas law banning most abortions in the state while a legal challenge progresses, calling the law “clearly unconstitutional.”

The law’s entry into force would allow Texas to disregard half a century of Supreme Court precedents prohibiting states from banning abortions before the fetus is viable or about 22 to 24 weeks after pregnancy. The contested law, called Senate Law 8, has been in force since the beginning of September and de facto prohibits abortions after about six weeks of pregnancy.

“It virtually eliminated access to abortion in Texas after six weeks of gestation,” the letter said. “Texas, in short, has successfully overturned this court’s decisions within its borders.”

The court signaled that it can act quickly. Judge Samuel A. Alito Jr., who oversees the Texas federal appeals court, asked officials there to submit their response to the Justice Department’s motion by noon Thursday. The court could decide in the following days.

As the matter was urgent and important, the letter also urged the court to add the issue of the law’s constitutionality to the list of cases it plans to try this year and bypass the appeals court, which will hear its arguments in December target . The Supreme Court is scheduled to hear another major abortion case in December involving a Mississippi bill.

“SB 8 is an affront to the sovereign interests of the United States in maintaining the supremacy of federal law and ensuring that the traditional judicial review mechanisms approved by Congress and this court are still available to challenge unconstitutional state laws,” reads in the letter from the Ministry of Justice.

In a bitterly divided decision last month on another case brought by abortion providers regarding the same law, the Supreme Court brought the law into effect, effectively ending access to abortion for most Texan women. The majority spoke of procedural obstacles that spoke against granting the offerers’ request to block the law.

At the end of last month, the providers asked the court to re-examine the case and submit their application unusually quickly. Late Monday afternoon, after the court did not take action for nearly a month, the court ordered officials in Texas to respond to the vendors’ request by Thursday noon, the same deadline it set for responding to the Justice Department’s request.

The Justice Department said in a brief filed by Brian H. Fletcher, the acting attorney general, the two cases were different. The federal government has different interests and powers than private litigation parties.

Texas law, which makes no exception for pregnancies due to rape or incest, has an unusual feature that makes it difficult to challenge in court.

Rather than holding government officials accountable for enforcing the law, the law allows individuals, abortion providers, and others to sue who help women get the procedure. This help can include financial assistance or taking a woman to a clinic.

The plaintiffs need not relate to the defendants. If they prevail, the law will be entitled to at least $ 10,000 in damages, as well as legal costs. Prosecuted abortion providers must pay their own legal fees, whether they win or lose.

The drafters of the law, Fletcher told judges, “have openly admitted that the law was designed to prevent constitutionally protected abortions while avoiding judicial review.”

Defenders of the law say vendors can challenge the law by violating it, being sued, and asserting the unconstitutionality of the law as part of their defense.

“In theory, providers could perform prohibited abortions and then invoke the unconstitutionality of SB 8 as a defense in the resulting enforcement actions,” Fletcher wrote. “But this possibility of checking is not even theoretically open to pregnant women – whose rights SB 8 are directly violated – as they cannot be sued by law. And Texas designed SB 8 to ensure that the threat of crippling liability prevents providers from taking their chances in court. “

Mr. Fletcher asked the judges to look at the bigger picture.

“SB 8 is clearly unconstitutional under the precedents of this court,” he wrote. “Texas hasn’t seriously argued otherwise.”

In response to an earlier Justice Department request, Justice Robert L. Pitman of the Austin District Court temporarily blocked the law earlier this month, writing that he “would not sanction this offensive deprivation of such an important right for another day.” . “

Understand the Texas Abortion Act

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The citizens, not the state, will enforce the law. The law effectively represents ordinary citizens – including those outside of Texas – and allows them to sue clinics and others who violate the law. It will give them at least $ 10,000 per illegal abortion if they are successful.

He criticized the law’s efforts to avoid judicial review.

“Aware that it would be blatantly unconstitutional to deprive its citizens of this right through direct government action,” wrote Judge Pitman, “the state has developed an unprecedented and transparent legal system to do just that.”

Last week, a divided jury of three from the U.S. Fifth District Court of Appeals in New Orleans upheld Judge Pitman’s verdict and reinstated the law. The motion filed on Monday asked the Supreme Court to lift the suspension.

The majority opinion in last month’s 5 to 4 Supreme Court ruling refusing to block the law was unsigned and consisted of a single long paragraph. The abortion providers, who had challenged the law in an urgent application to the court, did not arise in view of “complex and novel” procedural issues.

The majority emphasized that they did not want to judge the constitutionality of the Texan law and not limit “procedural challenges” to it.

“The order of the court is overwhelming,” wrote Judge Sonia Sotomayor against it. “Presented with a motion for blatantly unconstitutional law to prohibit women from exercising their constitutional rights and evade judicial control, a majority of judges have chosen to bury their heads in the sand.”

In the new letter, Mr. Fletcher wrote that it would not be difficult to imagine other laws on the Texan model.

“If Texas is right,” he wrote, “states are free to use similar schemes to set other precedents or suspend other constitutional rights. Our constitutional system does not allow states to thwart the supremacy of federal law so easily. “

“For example, a state could ban the possession of handguns in the household or prohibit independent corporate campaign advertising and mandate its citizens to charge high bounties for any firearm or advertisement,” wrote Mr Fletcher, noting that both laws would violate Supreme Court precedents .

“The ingenuity of the state,” wrote Mr. Fletcher, “does not allow it to undermine constitutional rights in this way.”