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Biden administration taking Texas abortion ban to top court

WASHINGTON (CN) — Just one day after the Fifth Circuit held that Texas’ near-total ban on abortions would remain in effect while it is challenged in court, the Justice Department said Friday it will keep the fight alive.

“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8,” Justice Department spokesman Anthony Coley said in a statement this afternoon.

The move is the latest in a series of efforts undertaken by the Biden administration to unravel the restrictive Texas abortion law, otherwise known as the Texas Heartbeat Bill or Senate Bill 8, which bars the procedure starting at six weeks.

Texas and those on its side have been expecting the move, as indicated in a statement from the anti-abortion group Texas Right to Life after the New Orleans-based Fifth Circuit issued its ruling Thursday.

“The battle is not finished,” the group wrote. “We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will ultimately defeat these attacks on our life-saving efforts.”

Meanwhile Texas Attorney General Ken Paxton’s office said it viewed the Fifth Circuit’s ruling as a sign “a testament that we are on the right side of the law and life.”

Since it took effect Sept. 1, President Biden has maintained that the law is a violation of women’s health care rights.

“This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” Biden said in September. He also condemned the Supreme Court's overnight ruling in which it refused to issue an emergency stay as “an unprecedented assault” on a woman’s constitutional right to an abortion and warned that the high court’s decision “unleashes unconstitutional chaos” that will allow millions of Texas women in need of reproductive care to suffer.

Backing the federal government’s stance, abortion rights groups have held that the district court previously did the right thing in blocking the ban at the beginning of October. 

“We hope the Supreme Court will put an end to harms this law is causing,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said after the ruling.

Marking the third time the conservative-leaning appeals court ruled in favor of the Texas law, the Fifth Circuit moved in a 2-1 ruling Thursday night to keep the controversial law in place less than a week after the circuit temporarily reinstated it. 

The law has virtually eliminated access to abortion in Texas after six weeks of pregnancy, forcing some to travel out of state where backlogs for care have been reported.

Attorneys with the Justice Department have argued that the law, which makes no exceptions for rape or incest, unconstitutionally restricts a woman’s access to an abortion.

In the six weeks that it has been in place, the law has brought abortion care in Texas to a standstill, drawn condemnation from the Biden administration and been the source of legal challenges over the state’s ability to ban the procedure.

At the center of the challenges is the provision delegating enforcement power from the state to private individuals to sue doctors, or anyone who “aids and abets” the procedure, with fines of at least $10,000 per violation.

The Justice Department sued the state in September after the Supreme Court allowed the law to take effect.

In another abortion-related dispute, the high court is set to hear arguments Dec. 1 over the constitutionality of a Mississippi ban on abortions performed after 15 weeks of pregnancy. 

While a decision in that matter is not expected until the end of the court’s next term in June 2022, with a solidified conservative majority of the court, abortion rights groups fear its results could lead to the overturn of Roe v. Wade, the 1973 case that established a person’s constitutional right to an abortion.

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Robin Marty/CC BY 2.0

At the center of the challenges is the provision delegating enforcement power from the state to private individuals.