Texas Abortion Ban Temporarily Reinstated By Appeals Court

Washington — The Supreme Court on Friday said it will take up this term a legal battle over a Texas law that bans most abortions after about six weeks of pregnancy, adding a second case involving abortion to its docket in what is already a blockbuster term.

The abortion ban, known as S.B. 8, will remain in place while the Supreme Court considers the cases.

In a pair of orders, the court set oral arguments in a challenge brought by the Justice Department and a separate case brought by abortion providers in Texas for November 1. 

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The question to be considered by the high court in the dispute brought by the Justice Department against Texas is "may the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced."

Justice Sonia Sotomayor said in an opinion the court was right to take up the disputes before the 5th U.S. Circuit Court of Appeals has ruled "in recognition of the public importance of the issues these cases raise." But she warned "the promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now."

"These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether," Sotomayor wrote, adding that she dissented from the court's refusal to block enforcement of the law while legal proceedings continue.

In addition to the case involving Texas' abortion law, the Supreme Court will also hear this term a dispute over a Mississippi law that bans abortions after 15 weeks of pregnancy. The oral arguments in that case will be heard on December 1. Mississippi officials are asking the justices to overturn its landmark 1973 decision in Roe v. Wade, which established the constitutional right to an abortion.

Unlike the Mississippi case, though, the justices will not decide the constitutionality of the Texas law or whether to overturn its abortion precedents, but rather procedural questions raised by its novel enforcement mechanism, including who can sue and when.

While Texas did ask the Supreme Court to overturn Roe if it agreed to take up the case, the high court said it would limit its focus to whether the Justice Department could sue Texas in federal court.

The Texas law prohibits abortions after embryonic cardiac activity is detected, usually at about six weeks and often before a woman is aware she is pregnant. In its past decisions, the Supreme Court has prohibited states from outlawing abortions before fetal viability, which generally occurs around 22 to 24 weeks of pregnancy. 

The Justice Department sought intervention from the high court in its challenge to the Texas abortion law on Monday, asking the justices in an emergency request to reinstate an order from a federal district judge in Austin, Texas, temporarily halting enforcement of the ban. 

The judge, Robert Pitman, wrote in a scathing opinion earlier this month that since the law took effect on September 1, "women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution."

But roughly 48 hours after Pitman paused the law, a three-judge panel on the 5th U.S. Circuit Court of Appeals agreed to a request from Texas to temporarily put the district court's order on hold. The appeals court then issued a second order last week that allowed the Texas law to remain in place and said it would fast-track proceedings in the dispute between the Biden administration and the state.

In response to the 5th Circuit's order, the Justice Department turned to the Supreme Court and asked it to lift the lower court's stay, or agree to hear the case this term before the 5th Circuit has ruled.

Acting Solicitor General Brian Fletcher argued in his filing to the high court that Texas designed its law to violate the Constitution and evade federal court review, as it delegated enforcement not to state officials, but to private citizens through civil lawsuits filed in state court against anyone who provides an abortion or "aids or abets" them. People who are successful in their lawsuits are entitled to at least $10,000 from the violator.

Texas "successfully nullified this court's decisions within its borders," Fletcher wrote, referencing the court's abortion precedents. The 5th Circuit's stay "enables Texas's ongoing nullification of this court's precedents and its citizens' constitutional rights," he added.

But Texas officials, led by Attorney General Ken Paxton, said in response to the Biden administration's filing that the federal government does not have a legal right to sue because it has not been injured by the abortion law. The chief complaint from the Justice Department, they said, lies with how the law is structured.

"Neither the federal government nor abortion providers are entitled to demand Texas write its laws to permit them to be challenged in a pre-enforcement action in federal court," the state argued.

The request from the Justice Department marked the second time the justices were asked to block the Texas law, which is the most restrictive in the nation.

Before the ban became enforceable September 1, a group of abortion providers asked the Supreme Court to stop it from taking effect. But the court, in a 5-4 decision, declined to block the abortion law.

While Texas is not the first state to pass laws banning abortions after embryonic activity is detected, federal courts have found the other restrictions to be unconstitutional and stopped them from going into effect. But the Texas law is different because of its enforcement scheme, which complicated the efforts by abortion providers to challenge it because it was unclear who they should sue.

The Justice Department filed its lawsuit targeting the abortion ban in early September, days after the Supreme Court allowed it to remain in effect. In its lawsuit, the Biden administration said the Texas measure was enacted in "open defiance" of the Constitution." The United States, the suit stated, "may sue to vindicate its interest in preventing Texas from effecting such a constitutional violation."

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