Saying Texas had “successfully nullified” the Supreme Court’s abortion-rights rulings, acting U.S. Solicitor General
The department said the Texas law unconstitutionally attempts to avoid judicial review with a novel mechanism that puts enforcement in the hands of private parties.
“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,” said Fletcher, the Biden administration’s top Supreme Court lawyer.
The Supreme Court has already refused to block the law once, when it
The Justice Department request adds a new layer to a Supreme Court term already guaranteed to be a pivotal one for abortion rights. The court will
The new request follows last week’s 2-1 federal appeals court
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 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.
Fletcher contended the federal government has the right to vindicate “the supremacy of federal law” and ensure that “the traditional mechanisms of judicial review endorsed by Congress and this court remain available to challenge unconstitutional state laws.”
In temporarily blocking the law on Oct. 6, U.S. District Judge
Pitman also concluded the Justice Department had legal standing to challenge the law, in part because of the impact on federal agencies that arrange for abortions in Texas, including the Bureau of Prisons and the Defense Department.
The 5th U.S. Circuit Court of Appeals temporarily blocked Pitman’s order two days later and then issued a longer stay on Oct 14. The latter order came with a one-paragraph explanation that pointed to the decisions by the 5th Circuit and Supreme Court in the suit by abortion providers. The appeals court panel is scheduled to hear arguments during the week of Dec. 6.
The Justice Department raised the possibility the court also could take up the case on the merits, meaning the justices would hear arguments and rule on the merits of the law, rather than just the stay. That would be a highly unusual step because the 5th Circuit hasn’t yet issued a definitive ruling on the measure.
Abortion providers have already filed a similar
(Updates with court requesting response in provider case in last two paragraphs.)
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