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Justice Department Asks Top Court to Lift Texas Abortion Ban (3)

Oct. 18, 2021, 9:57 PM

President Joe Biden’s Justice Department asked the U.S. Supreme Court to lift Texas’s ban on abortion after the sixth week of pregnancy, setting up a new high court showdown over what is easily the most restrictive abortion ban currently in force in the country.

Saying Texas had “successfully nullified” the Supreme Court’s abortion-rights rulings, acting U.S. Solicitor General Brian Fletcher on Monday urged the court to intervene immediately to block the law while litigation goes forward. Fletcher also suggested the justices hear arguments and issue a definitive ruling, a move that would raise the stakes in what already is a historic fight.

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.

Justice Samuel Alito, who handles emergency requests from Texas, asked the state to respond by 12 p.m. Washington time Thursday, suggesting the court could act on the request in a matter of days. Texas Attorney General Ken Paxton’s office didn’t immediately respond to a request for comment on the Justice Department filing.

The Supreme Court has already refused to block the law once, when it rejected abortion providers on Sept. 1 and largely shut 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 unusual enforcement mechanism.

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 hear arguments in December on a Mississippi appeal that aims to give states far more power to restrict abortion and even asks the court to overturn Roe v. Wade, the landmark 1973 ruling that legalized the procedure nationwide.

Two-Day Block

The new request follows last week’s 2-1 federal appeals court decision that let the law go back into effect after a trial judge ruled the measure unconstitutional and blocked it for two days.

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.”

Argument Suggestion

In temporarily blocking the law on Oct. 6, U.S. District Judge Robert Pitman said ruling otherwise would mean that “any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction.”

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 request -- known as a petition for certiorari before judgment -- in their case. The Supreme Court on Monday told Texas to file a response by Thursday in that case as well.

The Justice Department case is U.S. v. Texas, 21A85. The provider case is Whole Woman’s Health v. Jackson, 21-463.

(Updates with court requesting response in provider case in last two paragraphs.)

--With assistance from Chris Strohm.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Larry Liebert

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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