The Department of Justice requested Monday that the Supreme Court temporarily block enforcement of the Texas law outlawing abortion procedures after six weeks of pregnancy.
The request marks the second challenge by the DOJ to reach the court on an emergency appeal that seeks to place a hold on the ban while litigation contesting its constitutionality plays out in lower courts. In early September, the Supreme Court turned away the first appeal by a 5-4 vote, allowing the law to take effect.
Since then, the law has bounced back and forth through lower courts, and, most recently, the U.S. Court of Appeals for the 5th Circuit allowed the law to remain in effect while legal challenges play out.
Last week, the DOJ signaled it would make an additional plea to strike down the law, titled S.B. 8, while litigation continues.
The Supreme Court signaled intent to move quickly with the latest challenge, ordering Texas to file a response by Thursday at noon, according to an official readout.
DOJ TO GO TO SUPREME COURT ON TEXAS ABORTION LAW
Justices have yet to weigh in on the constitutionality of the abortion law in the Lone Star State, as it is not directly enforced by the state. Instead, the law encourages private citizens to sue anyone who assists pregnant women in getting a procedure.
The Justice Department requested in its application for the Supreme Court to undo the 5th Circuit’s decision, saying Texas defied Roe v. Wade “by banning abortion long before viability — indeed, before many women even realize they are pregnant.”
Included in the DOJ’s citations was the Supreme Court’s 1992 Planned Parenthood v. Casey decision in the case that upheld the right to an abortion, which said: “A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
“Thus far, S.B. 8 has worked exactly as intended: Except for the few days the preliminary injunction was in place, S.B. 8’s in terrorem effect has made abortion effectively unavailable in Texas after roughly six weeks of pregnancy. Texas has, in short, successfully nullified this Court’s decisions within its borders.”
The DOJ added that allowing the law to remain in effect would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights.”
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Whether or not the Constitution provides a right to abortion will be a primary focus for the Supreme Court in December, when justices are expected to hear a challenge to Mississippi’s law that would ban abortion after 15 weeks. The case presents a challenge to the court’s abortion precedent, including the landmark Roe v. Wade case, which says states cannot block abortion procedures before fetal viability.
