Texas asks Supreme Court not to block its fetal heartbeat abortion law

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Texas asked the Supreme Court on Thursday not to grant the Justice Department’s request to block the state’s law banning abortion after a fetal heartbeat is detected.

President Biden’s Justice Department had requested that the court prevent enforcement of Senate Bill 8 while litigation against it continues, charging that the law runs afoul of the Constitutional right to an abortion.

But in its filing, the state said the Justice Department doesn’t have the standing — an injury sufficient to bring a lawsuit — to challenge Texas’s law.

The state also noted the federal government sued Texas, but Texas officials do not enforce the law — private citizens bring civil lawsuits against abortionists if they perform an abortion past the detection of a fetal heartbeat.

“Texas executive officials do not enforce SB 8, and Texas’s judicial branch is not adverse to litigants who appear before it and who believe SB 8 is unconstitutional. As there is therefore no state executive or judicial official who can be enjoined,” the state argued in its brief.

“The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion,” the filing added.

If the high court were to grant review of the case before the 5th U.S. Circuit Court of Appeals weighs the legality of the law, Texas requested that the parties debate the validity of Roe v. Wade, the 1973 case that granted women a right to an abortion up to viability, which was then generally between 24 and 28 weeks.

The Texas law bans abortion at around six to eight weeks of pregnancy, which is about the time a fetal heartbeat is first detected.

The Justice Department petitioned the justices Monday after the 5th Circuit allowed the law to remain in effect while litigation continues.

U.S. District Judge Robert Pitman, an Obama appointee, first blocked the Texas law, siding with the federal government. But the state appealed to the 5th Circuit, which quickly reversed him.

Texas women have been traveling to neighboring states to receive abortions due to the legislation, according to The Associated Press.

The Supreme Court declined to block S.B. 8’s enactment last month against a separate lawsuit brought by abortion providers.

That case is also pending at the 5th Circuit, and the same three-judge panel is expected to weigh both the Justice Department case and the lawsuit brought by the abortion providers.

The three-judge panel includes: Judge Edith Jones, a Reagan appointee; Judge Kyle Duncan, a Trump appointee; and Judge Kurt D. Engelhardt, another Trump appointee.  

The Supreme Court, in its initial refusal to halt S.B. 8’s enforcement, did not resolve whether the law was constitutional, but noted the abortion providers fighting it had sued state and local officials who are not likely to enforce the law — essentially the same argument that Texas made Thursday.

Under S.B. 8, anyone who successfully sues someone who assists in an abortion after six weeks would receive at least $10,000.

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 Roe ruling during its new term, which began last week. The 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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