Even Texas Doesn't Think Abortion Ban Is Constitutional, DOJ Says
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Biden Admin Files Emergency Petition with SCOTUS to Stop ‘Clearly Unconstitutional’ Abortion Ban, Wants Court to Hear Arguments This Term

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas.

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas. (Photo by Jordan Vonderhaar/Getty Images.)

The U.S. Department of Justice on Monday asked the Supreme Court of the United States to put a pause on the restrictive Texas anti-abortion law.

The latest salvo in a series of procedural efforts to enjoin S.B. 8, attorneys for the Biden administration argued the law is “clearly unconstitutional” and predicted that they would eventually win the case on the merits when it is considered in full by the high court.

Opponents of the ban praised the administration’s efforts.

“We’re glad the Department of Justice is bringing the fight against Texas’ extreme abortion ban to the Supreme Court,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a press release sent Monday afternoon. “Abortion access is facing the greatest threat in generations. The Supreme Court must step in to stop this abortion ban from continuing to wreak havoc in Texas and forcing people to carry pregnancies against their will.”

Monday’s filing is fashioned as an attempt to gain relief for opponents of the law by way of the court’s so-called “shadow docket” (the request is formally fashioned as an emergency plea to allow a previous injunction to go into effect). On Oct. 6, a district court in Texas put the kibosh on the law citing its “flagrantly unconstitutional” nature. Three days later, the conservative U.S. Court of Appeals for the Fifth Circuit stayed the lower court’s injunction and allowed the law to stand pending trial.

DOJ attorneys leaned heavily into constitutional precedent from landmark cases that support a woman’s right to obtain an abortion.

“In seeking a stay in the Fifth Circuit, Texas did not try to argue that S.B. 8 comports with this Court’s precedents on abortion,” the filing argues. “With good reason: This Court has long recognized that the Constitution protects a pregnant woman’s right ‘to have an abortion before viability and to obtain it without undue interference from the State,’ which until viability lacks ‘interests…strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.’ Because S.B. 8 bans abortion several months before viability, it is unconstitutional without recourse to the undue-burden standard.”

As Law&Crime previously reported, the “Texas Heartbeat Act” forces medical providers to look for the heartbeat of a fetus before performing an abortion and provides that “a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.”

An accompanying private right of action enforces and is, in fact, the essence of the novel abortion ban. Along with limitations on private medial providers, “any person” (except for Texas governmental employees) is allowed to sue a doctor who performs an abortion in violation of the law. Lawsuits can also be filed against anyone who aids or abets a doctor who performs an abortion once a “fetal heartbeat is detected” or without trying to detect a heartbeat.

According to Acting Solicitor General Brian H. Fletcher, S.B. 8 has “blocked the vast majority of all abortions that would otherwise have been performed” in Texas. According to abortion providers cited by the DOJ, the law has resulted in barring between 80% and 95% of all previously-performed abortions in the Lone Star State.

The administration also says the law has had a disparate impact on non-wealthy individuals seeking abortions in Texas.

From the filing, at length:

Texans with sufficient means have traveled hundreds of miles to obtain abortions in other States — often making multiple trips to comply with those States’ abortion laws. As the district court found, the influx of patients from Texas has overwhelmed providers in Oklahoma, Kansas, Colorado, New Mexico, and as far away as Nevada. Clinics in Oklahoma, for example, have been “forced to delay patients’ abortions” for weeks “because of the volume of appointments needed.” “And with the overlapping state regulation regimes, a delayed abortion can mean the difference between a medication abortion” and “a procedural abortion, if a patient is able to obtain an abortion at all.”

In addition, many Texans seeking abortions cannot travel to other States “for any number of reasons,” including financial constraints; childcare, job, and school responsibilities; and “dangerous family situations.” As the district court found, women who cannot leave the State are being forced to “make a decision” about whether to have an abortion “before they are truly ready to do so.” And if they do not learn they are pregnant until after six weeks, women who cannot travel “are being forced to carry their pregnancy to term against their will or to seek ways to end their pregnancies on their own.”

Abortion rights advocates echoed those themes.

“We applaud this move by the Department of Justice to challenge this unconstitutional law all the way to the Supreme Court,” Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas said. “It has been nearly seven weeks since this extreme anti-abortion law went into effect, halting almost all access to care throughout Texas. The effects have been devastating, with low-income and Black and Brown Texans feeling the disproportionate weight of the ban. We hope this time — unlike they did with our lawsuit against SB 8 — the Supreme Court will not turn its back on the Texans who need access to abortion care now.”

In addition to the emergency appeal, the DOJ also said the justices could simply choose to consider the Monday filing a petition for the court to take up the case on the merits this term. Procedurally, the case has not even gone through the fact-finding process of a district court trial.

“Because the United States has made all showings required for a preliminary injunction — and because the Fifth Circuit’s unjustified stay enables Texas’s ongoing nullification of this Court’s precedents and its citizens’ constitutional rights — the Court should vacate the stay,” the DOJ argues. “In addition, given the importance and urgency of the issues, the Court may construe this application as a petition for a writ of certiorari before judgment, grant the petition, and set this case for briefing and argument this Term.”

Justice Samuel Alito handles emergency applications concerning the Fifth Circuit. He quickly responded to the filing and gave Texas until Thursday at noon to respond to the DOJ’s latest motion.

[image via Jordan Vonderhaar/Getty Images]

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