The Biden Administration, accusing the state of Texas of nullifying Supreme Court rulings with its new abortion ban, asked the Court on Monday to act promptly to strike down that law.
Urging the Court not to wait until lower courts finish reviewing the law, the new filing made two requests:
- Put the Texas law, which has been in effect for more than six weeks, on hold while the government’s new appeal is reviewed by the Justices.
- Speed up the grant of review so that the case would be heard and decided during the current term, which will run through June.
It will take five votes on the Court to do the first. A different effort, by abortion clinics and doctors, to temporarily block the Texas law failed on September 1, with five Justices opposed and four in favor. To get five votes this time would require at least one of the six to see this case differently.
It will take only four votes, though, to agree to hear the government’s new challenge, even though that would involve the unusual approach of bypassing a lower federal appeals court, which is studying the law now. Since four Justices already are on record as troubled by the Texas law’s sweep, review appears likely but whether the law is suspended depends upon getting five votes.
The Court quickly accepted the government’s appeal for filing, and asked the state of Texas to file a response within three days – by noon Thursday. That indicates that the Court is prepared to act quickly.
Normally, each case must make its own way at the Court during a term. If the Court has already agreed to decide a related case, others like it might simply be held until a decision emerges in that other case. The Court, in fact, already has the abortion issue under review this term. But that case and the government case are quite different, so the normal practice may not be followed this time.
Moreover, the Court usually shows a good deal of respect for federal government cases coming to it, since they represent appeals by an equal branch of the national government.
The Texas law, enacted in May, is the strictest anti-abortion law in the nation. Titled the “Texas Heartbeat Act,” it forbids any abortion at any time after a doctor detects fetal heart activity, which may be only a weak electric signal that would not constitute a normal heart beat. That can occur no earlier than six weeks. In practical effect, then, the law forbids all abortions after six weeks.
Under Supreme Court precedents in effect for decades, no state can constitutionally ban abortion until the fetus is capable of living, if delivered, outside the woman’s body – something that cannot happen before 22 weeks at the earliest, and more often not before 24 weeks.
A federal judge in Austin blocked the law in the Biden Administration’s case on October 6, but the law went back into effect on October 14 when a divided federal appeals court panel ended that suspension. That led to the Administration’s new appeal Monday.
After the Supreme Court on September 1 voted 6-to-3 to permit the law to go into effect temporarily while lower courts reviewed the clinics’ challenge, that had the effect of ending almost all abortions in the state, although doctors could still perform the procedure before six weeks into pregnancy – if the patient even knew, by then, that she was pregnancy, which is not common.
The Biden Administration, in Monday’s filing, argued that “Texas has successfully nullified this court’s decisions within its borders.” As a result, the legal document said, many Texas women who can afford to do so are going to neighboring states to seek to end their pregnancies, while other women could be forced to carry the pregnancy to term.
The Supreme Court has set a December 1 hearing for a separate case in which the state of Mississippi is asking that the Justices use that case to end altogether the constitutional right to abortion, by overturing the two main rulings on that right: the 1973 decision in Roe v. Wade and the 1992 decision in Planned Parenthood v. Casey.
That case involves a Mississippi law that would outlaw abortions at 15 weeks of pregnancy – less restrictive than the new Texas law, but still barring the procedure before the fetal viability line the Court has established.
Both the Mississippi law and the new Texas law do not make any exceptions to their ban if the pregnancy resulted from rape or incest. Both have only narrow exceptions for medical emergencies.
While the Mississippi case has developed into a direct challenge to the right to end a pregnancy, the controversy over the new Texas law would amount to just as broad a challenge, but it also has another, very unusual question: can a state pass a law that interferes with rights, and then make it impossible for anyone to challenge that law in federal court, by turning over enforcement of the ban to private citizens who would sue only in state courts.
Under the law, If the private person suing wins the case, they can collect at least $10,000 from those involved in a prohibited abortion. (Such lawsuits cannot be aimed directly at the pregnant women themselves, so clinics and doctors would be targeted.)
The earlier challenge to the Texas law by clinics and doctors sought to strike down that unusual federal court bypass procedure. But, in allowing the law to take effect last month, six Justices said it was not clear that a challenge to that procedure could be pursued at all in federal court, since no state officers were involved in enforcing the ban.
The federal government’s case is an attempt to get around that problem. Because the Constitution does not give state government any immunity to being sued by the federal government, the Justice Department opted to sue the state of Texas directly. It argues that states cannot pass laws that clearly nullify federal rights and then thwart any attempt to protect those rights in federal courts.
The federal government, according to the new appeal, has a special duty to safeguard the constitutional rights of the people and to protect the supremacy of the Constitution over state laws that violate the Constitution. The Constitution’s Article VI makes the Constitution “the supreme law of the land,” binding on states, too.
Noting that other states where the government opposes abortion are seeking to imitate the Texas law, the government’s new appeal said that “our constitutional system does not permit states to so easily thwart the supremacy of federal law.”