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Justice Department Will Ask Top Court to Halt Texas Abortion Law

Oct. 15, 2021, 4:36 PM

The Justice Department said it will ask the U.S. Supreme Court to lift Texas’s ban on abortion after the sixth week of pregnancy, setting up a showdown likely to determine whether the law stays in effect through the end of the year.

A federal appeals court Thursday night let the law stay in effect as the case goes forward, even though a trial judge ruled the measure was unconstitutional. The Justice Department will ask the Supreme Court to set aside the appeals court order, department spokesman Anthony Coley said Friday.

The Justice Department says the law blatantly violates Supreme Court precedents that protect abortion rights and unconstitutionally seeks to avoid judicial review with a novel provision that puts enforcement in the hands of private parties.

The Supreme Court has already refused to block the law once, when it rejected abortion providers on Sept. 1 with a 5-4 decision that largely shut down the procedure in the second-most populous U.S. state. The law is easily the country’s most restrictive abortion ban currently in effect.

The high court’s earlier order came with only a paragraph of explanation. The majority said the challengers had “raised serious questions regarding the constitutionality of the Texas law” but hadn’t shown they could overcome procedural obstacles stemming from the unusual enforcement mechanism.

The Justice Department request adds a new layer to a Supreme Court term already set to be a historic one for abortion rights. The court in December will hear arguments on a Mississippi appeal that aims to slash abortion rights nationwide and even asks the court to overturn Roe v. Wade, the landmark 1973 ruling that legalized the procedure nationwide.

Judicial Power

The Texas law, known as Senate Bill 8, bars abortion after a fetal cardiac activity can be detected and puts clinics that violate it 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 order, the Supreme Court said that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”

In temporarily blocking the law on Oct. 6, U.S. District Judge Robert Pitman said he could issue an order binding the state as a whole, as well as the judges and clerks who would handle any private enforcement suits.

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 wrote.

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.

--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

Jon Morgan

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

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