US: Biden DOJ asks Supreme Court to block Texas abortion ban
October 18, 2021
The US Department of Justice (DOJ) on Monday requested the Supreme Court of the United States (SCOTUS) to block a Texas state abortion ban until the constitutionality of the law can be determined.
Monday's DOJ request comes on the heels of a 5th Circuit Federal Court of Appeals decision to leave the Texas ban in place. This, argues the DOJ, "enables Texas' ongoing nullification of this Court's precedents and its citizens' constitutional rights."
The DOJ request claims the Texas law defies established Supreme Court precedent by "banning abortion long before viability — indeed, before many women even realize they are pregnant."
The DOJ cited the 1992 Planned Parenthood v. Casey case in which the Supreme Court upheld a woman's right to abortion, stating: "[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."
"Texas has, in short, successfully nullified this Court's decisions within its borders," wrote the DOJ, which called the Texas law (SB 8) "plainly unconstitutional."
What does the Texas law prohibit?
On the books since September — when a 5-4 SCOTUS decision overturned a district court-ordered pause and allowed it to go into effect — the highly controversial state law imposes a near-total ban on medical abortions from the moment a fetal heartbeat is detected. This usually occurs after about six weeks of pregnancy.
"The question now is whether Texas' nullification of this Court's precedents should be allowed to continue while the courts consider the United States' suit," read Monday's request. Allowing the law to stand would "perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights," according to the DOJ.
The law is written in a way that encourages everyday citizens to sue anyone they know to have been involved with an abortion, from doctors to taxi drivers, and pays them $10,000 (€8,612) for successfully bringing a case to court. Critics have railed that the state's Republican majority is turning Texans into bounty hunters while robbing women of the right to health care and control over their bodies.
The Texas law allows for exception in cases of documented medical emergency but not, however, in cases of rape or incest.
The novelty of allowing individuals to police behavior rather than state officials has thus far insulated the law against federal legal challenges. Indeed, of the numerous Republican-sponsored state laws seeking to restrict the right to abortion, only Texas has successfully managed to avoid seeing its laws overturned.
The Supreme Court has agreed to hear a Mississippi case seeking to overturn the right to abortion this term.
The Biden administration is worried the Texas law could work as a blueprint for similar state laws seeking to avoid federal oversight and has suggested the court review the law's constitutionality even before it works its way through the lower courts.
Conservatives hope to overturn federal abortion law
Conservatives have long sought to overturn the landmark 1973 Supreme Court ruling in Roe v. Wade, which guaranteed a woman's legal right to abortion. But now Republicans have finally established a 6-3 conservative majority on the Court, thanks largely to former Senate Majority Leader Mitch McConnell and ex-President Donald Trump — whose three appointees have previously questioned Roe's constitutionality.
In the top court's September decision to allow the Texas law to go into effect, the majority noted "serious questions regarding the constitutionality of the Texas law" as well as "complex and novel" procedural questions regarding who to sue but also whether federal courts had the power to stop enforcement of the law.
Chief Justice John Roberts, who wrote the dissenting opinion, argued that he would have put the "unprecedented" law on hold to allow the court to consider "whether a state can avoid responsibility for its laws'' by handing the enforcement of laws to private citizens.
The Supreme Court has not set a timetable for consideration of the DOJ request.
js/sri (AFP, AP, Reuters)