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Biden DOJ formally asks Supreme Court to block Texas abortion law

It is the 3rd time the nation’s highest court has been asked to step in and block Texas’ near-total abortion ban

Arguing that Texas’ near-total ban on abortion defies the U.S. Supreme Court’s landmark 1973 Roe v. Wade decision, the Biden Justice Department on Monday urged the high court to lift an order that allowed enforcement of the law to continue.  

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.

The law has been in effect since September and makes no exceptions for rape or incest. A federal judge earlier this month blocked the law, but his ruling was in place for just 48 hours before it was overturned by the conservative-leaning Fifth Circuit in a 2-1 decision.

On Monday, the Justice Department formally asked the Supreme Court to restore the federal judge’s ruling blocking the law while the appeal plays out in the Fifth Circuit. The DOJ on Friday announced its intentions to challenge the Fifth Circuit’s ruling in the Supreme Court.

The New Orleans-based appellate court tentatively set oral arguments in the case for the week of Dec. 6.

Since the the Texas law took effect Sept. 1, President Joe Biden has maintained that it is a violation of women’s health care rights. Attorneys with the DOJ argued in their new filing on Monday that Texas, in short, successfully nullified the Supreme Court’s Roe v. Wade decision “within its borders.”

“The question now is whether Texas’s nullification of this court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional,” the government’s filing says.

Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas, said the effects of Texas’ law over the last seven weeks “have been devastating,” with low-income and minorities especially feeling the weight of the ban.

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“We applaud this move by the Department of Justice to challenge this unconstitutional law all the way to the Supreme Court,” Piñon said in a statement. “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.”

The law has virtually eliminated access to abortion in Texas after six weeks of pregnancy, bringing reproductive care in the state to a standstill and forcing some to travel out of state for the procedure. It has also turned Texas into ground zero for the battle over abortion rights and a state's ability to ban the procedure.

At the center of the challenges is a provision in the Texas law 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 DOJ sued Texas in September after the Supreme Court allowed the law to take effect. Texas abortion providers and advocates have also appealed a separate challenge to SB 8 to the Supreme Court, but the high court’s conservative majority have so far ignored the request for relief.

The high court will hear arguments Dec. 1 over the constitutionality of a Mississippi case involving a ban on abortions performed after the 15th week of pregnancy. A decision in that matter is not expected until the end of the court’s next term in June 2022.

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Robin Marty|CC BY 2.0

Whole Women's Health in McAllen, Texas.