The Biden administration has asked the Supreme Court to take emergency action that would block Texas’ novel abortion ban from being enforced while litigation over its constitutionality goes forward.
The Justice Department’s new filing, submitted Monday, asks the justices to restore a preliminary injunction a federal district court judge in Texas issued earlier this month after concluding that the law violates longstanding legal precedent by seeking to ban abortions after about six weeks gestation.
“Allowing S.B. 8 to remain in force would irreparably harm those interests and perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights,” acting Solicitor General Brian Fletcher wrote in the 39-page application. “Texas, in contrast, would suffer no cognizable injury from a preliminary injunction barring enforcement of a plainly unconstitutional law.”
The new request appears to face an uphill battle at the high court because a previous submission from abortion providers for an emergency order blocking the law was turned down by the justices, 5-4.
However, the Biden administration argued that the new request stands on firmer ground for technical reasons. Fletcher said that the doctrine of sovereign immunity undercut the abortion providers’ case but poses no obstacle to the suit filed by the Justice Department last month.
“This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States,” Fletcher wrote.
The New Orleans-based 5th Circuit Court of Appeals plans to hold oral arguments on the Texas law in December, right around the time the Supreme Court is set to take up Mississippi’s 15-week abortion ban and the fate of the nearly-half-century-old precedent guaranteeing abortion rights, Roe vs. Wade.
The high court is likely to act in the coming days or weeks on the latest request to freeze enforcement of Texas’ ban. But for now, nearly all abortions in the state have halted, forcing those who have the financial means to travel out of state for the procedure.
Texas’s abortion ban took effect Sept. 1 after the justices failed to rule on the abortion providers’ emergency motion before the law’s effective date. It was not until the early hours of the following day that the high court’s ruling emerged formally rejecting the request.
The justices’ decision not to step in last month made Texas the first state to implement a ban on abortion early in pregnancy since the Supreme Court found a constitutional right to the procedure in 1973.
The Texas law was designed to be difficult to preempt in court because its enforcement depends on suits filed by private parties, rather than state or local prosecutors. The measure, dubbed a “heartbeat” law by its proponents, prohibits abortions from the time cardiac activity can be detected in the fetus — typically about six weeks into pregnancy.
Under the law, individuals who assist someone in obtaining an abortion face a minimum penalty of $10,000 if successfully sued under the statute. The threat of such suits — and a smattering of them actually filed in court in recent weeks — have led most abortion providers in the state to stop providing most abortions.
One of the biggest forces behind the law, the anti-abortion advocacy group Texas Right to Life, said because of this unusual enforcement mechanism they are confident the law “will ultimately withstand this legal challenge and succeed where other states’ heartbeat bills have not.”
The statute was briefly blocked by Austin-based U.S. District Court Judge Robert Pitman on Oct. 6, but was reinstated just 48 hours later by a 5th Circuit panel, which clinics said caused chaos for patients across the state.
“When the Fifth Circuit panel stayed the preliminary injunction last weekend, more than 20 patients at Planned Parenthood health centers had urgent care ripped away from them — even though they had access less than 24 hours before,” said Helene Krasnoff of Planned Parenthood Federation of America. “We appreciate the Department of Justice moving quickly to ask the Supreme Court to intervene.”
The law includes no exemptions for victims of rape or incest, and it has prompted patients as young as 12 to seek out abortion clinics hours away in neighboring states.
CORRECTION: A previous version of this report misstated Acting Solicitor General Brian Fletcher's name.