Justice Department asks Supreme Court to halt Texas abortion law

Biden administration argues that Texas’ insistence that nobody can bring a challenge is a proposition 'as breathtaking as it is dangerous'

Anti-abortion protesters hold signs and chant in front of the U.S. Supreme Court on Oct. 12, 2021.  (Bill Clark/CQ Roll Call)
Anti-abortion protesters hold signs and chant in front of the U.S. Supreme Court on Oct. 12, 2021. (Bill Clark/CQ Roll Call)
Posted October 18, 2021 at 3:15pm

The United States asked the Supreme Court to step in Monday and reinstate a lower court order that had stopped Texas from enforcing a new law that essentially bans abortion after six weeks of pregnancy.

The emergency application from the Justice Department is the second time in less than two months that the justices have been asked to block the law known as SB 8. A 5-4 majority declined to stop the Texas law from going into effect last month in a separate lawsuit brought by abortion providers.

Both lawsuits highlight that the Texas law all but nullifies longstanding Supreme Court precedents that establish a constitutional right to an abortion, and that it is designed to outflank the typical legal process for challenges from abortion rights advocates.

But the Justice Department argues in its filing Monday that complex and novel procedural questions about the structure of the law — which the majority cited as the reason for its inaction in the abortion provider lawsuit against state officials — don’t apply when the United States sues the state of Texas.

“The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit,” the Justice Department’s application states.

Other states are using SB 8 as a model to insulate other laws, the DOJ told the justices. And Texas’ insistence that nobody can bring a challenge to halt the abortion law is a proposition “as breathtaking as it is dangerous.”

“And if Texas is right, States are free to use similar schemes to nullify other precedents or suspend other constitutional rights,” the DOJ wrote. “Our constitutional system does not permit States to so easily thwart the supremacy of federal law.”

But the United States’ lawsuit faces its own procedural questions, about whether the Justice Department has the right to sue states to enforce constitutional rights. The Supreme Court gave Texas until noon Thursday to respond to the DOJ's application.

The United States filed its challenge to the Texas law after the first Supreme Court order in the abortion provider case, and argued that the government can file a lawsuit against the state to stop “a series of tricks to try to evade the Constitution directly.”

Earlier this month, a federal district judge sided with the Justice Department and entered an emergency order for Texas to prevent state officials and judges from doing anything to enforce the law.

But a federal appeals court late Thursday allowed Texas to keep its abortion ban in place while courts contemplate the Justice Department’s legal challenge.

The United States also argues in the Monday filing that allowing the law to stay in effect would harm “the thousands of Texas women who are being denied their constitutional rights,” while the state of Texas would not be harmed by a preliminary injunction of “a plainly unconstitutional law.”

The Justice Department says that the law covers about 85 percent to 95 percent of all abortions in Texas, and at a time before many women know they are pregnant. It says many Texas women are crossing state lines to get abortions, while others struggle to find the time and resources to do so.