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Justice Department again tries to block near-total abortion ban in Texas

The fate of the nation’s most restrictive abortion law is again in the hands of the Fifth Circuit after the Biden Justice Department asked the court to lift a stay “as quickly as possible” days after a federal judge blocked enforcement of the Texas law.

The latest request comes after a series of head-spinning rulings that began last week after U.S. District Judge Robert Pitman agreed with the Justice Department’s request to temporarily halt the law after the Biden administration sued Texas last month in federal court.

But the Fifth Circuit suspended Pitman’s order late Friday night when the state requested the New Orleans-based appeals court step in. In a unanimous decision, the court allowed for enforcement of the law to continue.

Passed by the Republican-controlled Texas Legislature as Senate Bill 8, the Texas Heartbeat Act became the nation’s strictest abortion law after the U.S. Supreme Court allowed it to take effect last month. It prohibits abortions once a fetal heartbeat is detected, which can occur as early as six weeks into pregnancy, and makes no exceptions for rape or incest.

The law also contains a unique provision that hands over enforcement power from state officials to private citizens to sue doctors, or anyone who “aids and abets” the procedure, with fines of at least $10,000 per violation.

The Justice Department’s Monday night filing argues that the law unconstitutionally restricts a woman’s access to an abortion, and requests that the state’s motions for a stay pending appeal be denied.

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” attorneys for the DOJ wrote in the filing. “Because SB8’s unconstitutionality is obvious, and because Texas’s sovereign immunity poses no barrier to this suit, Texas is unlikely to succeed on the merits.”

The federal government also told the Fifth Circuit that “the public interest weighs heavily against a stay.” The law has virtually eliminated access to abortion in Texas after about six weeks of pregnancy, forcing some to travel out of state where backlogs for care have been reported.

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In a separate filing Monday night, a group of constitutional law scholars argued that the law “is plainly unconstitutional under Roe v. Wade.”

“No one seriously argues otherwise,” the group says in the brief filed in support of the government.

The Fifth Circuit’s order reinstating the law remains in effect. A three-judge panel will rule on the state’s motion for a stay pending appeal.

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The Fifth Circuit’s order reinstating the law remains in effect. A three-judge panel will rule on the state’s motion for a stay pending appeal.