DOJ previews Supreme Court arguments against Texas abortion law


President Biden’s Justice Department argued in court papers Wednesday that the Supreme Court must allow Texas officials to be sued for banning abortions in the state after a fetal heartbeat is detected.

The Justice Department, asking the justices to strike down Senate Bill 8, said Texas lawmakers drafted the fetal heartbeat bill specifically to evade judicial review and to prevent courts from reviewing the law’s constitutionality.

The law allows only private citizens to bring lawsuits against the law’s violators, which, Texas has argued, means the federal government cannot sue the state.

“S.B. 8’s architects have candidly acknowledged that the law was designed to deter constitutionally protected abortions while evading judicial review,” the Justice Department said in its brief. “S.B. 8 was designed to nullify this Court’s precedents and to shield that nullification from judicial review. So far, it has worked.”

The federal government noted neighboring states have been flooded with women from Texas trying to obtain abortions since the law went into effect Sept. 1.

The Justice Department wants to sue Texas since Supreme Court precedents have granted women a right to an abortion up until viability, which historically was between 24 to 28 weeks.

Government lawyers will present the arguments in person before the Supreme Court on Monday.

The justices will decide whether the federal government can sue Texas over its law, and evaluate the citizen-enforcement scheme.

Whole Woman’s Health, an abortion provider in the state, is also suing Texas officials and will appear before the justices on Monday as well.

In its brief to the high court on Wednesday, the abortion clinic said the justices must allow state officials to be held accountable for infringing on women’s rights.

“If Texas gets away with this ploy, the constitutional right to abortion will be the first but certainly not the last target of States unwilling to accept federal law with which they disagree,” the clinic said.  

Texas officials have told the court they shouldn’t be sued because they do not enforce S.B. 8, private citizens are the ones who may bring lawsuits to hold abortion providers accountable if they perform an abortion after a fetal heartbeat is detected.

The state officials said in their brief Wednesday that the harm — or injury, known as Article III standing — that the Justice Department and abortion providers claim to suffer is not traceable to them.

“Because neither lawsuit presents a case or controversy within the meaning of Article III, both should be dismissed,” the state officials wrote.

The Justice Department and the abortion providers petitioned the justices on the matter earlier this month after the 5th U.S. Circuit Court of Appeals allowed the law to remain in effect while litigation continues.

The case reached the circuit court after Texas appealed a decision by U.S. District Judge Robert Pitman, an Obama appointee, that blocked the law.

The 5th Circuit, though, quickly reversed that move and the law has remained in effect.

Under the law, private citizens can sue if they have knowledge a provider illegally performed an abortion after a heartbeat was detected.

Anyone who successfully sues someone who assists in an abortion after six weeks would receive at least $10,000.

The Supreme Court first declined to block S.B. 8’s enactment last month, leaving the legislation in place while litigation against it continues in lower courts.

The abortion providers were the first to challenge the law — prior to the Justice Department filing its separate lawsuit.

The Supreme Court, in initially declining to halt S.B. 8’s enforcement, did not resolve whether the law was constitutional, but the court noted the abortion providers fighting it had sued defendants who are not likely to enforce the law.

Since the Supreme Court decided in 1973 that women had a right to abortion in the case of Roe v. Wade, pro-life advocates and conservative states have aimed to chip away at that ruling.

Texas is not alone in its recent attempt.

The Supreme Court has agreed to decide whether Mississippi’s ban on abortion after 15 weeks runs afoul of its abortion ruling during its new term, which began earlier this month. That case will be heard in December with a ruling expected in June.

Unlike in the Texas case, lower courts blocked the Mississippi law from taking effect, but the Supreme Court agreed to review that move.

Emily Zantow contributed to this report. 

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