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Texas asks Supreme Court to keep abortion ban in place

If the high court decides to take up the merits of the Biden administration’s challenge, Texas says it should use the opportunity to overturn Roe v. Wade.

WASHINGTON (CN) — Texas fired back at the Biden administration’s challenge to its nearly complete ban of abortions in a response brief filed Thursday asserting the government’s lawsuit was out of bounds, while also suggesting the court take another look at the validity of its landmark abortion decisions Roe v. Wade and Planned Parenthood v. Casey

Senate Bill 8, also called the Texas Heartbeat Act, bans all abortions after fetal cardiac activity is detected, which is about six weeks after a woman’s last menstrual period and two weeks after a woman’s first missed period. The law is being challenged because of its conflict with prior precedents in Roe and Casey which legalized abortion up until viability — roughly four months after the six-week deadline in SB 8. The law does not make exceptions for cases of rape or incest. 

The GOP-controlled Texas Legislature passed SB 8 along party lines in its spring session and set a Sept. 1 date for its enforcement. In early July, abortion providers led by Whole Woman’s Health filed suit in Austin federal court to preemptively stop the law but the Fifth Circuit issued a three-paragraph order that effectively canceled their injunction hearing.

The approximately 20 abortion providers challenging the law then asked the Supreme Court for an emergency stay order to block the Fifth Circuit's decision, but the justices denied the request in a 5-4 decision and the controversial law went into effect.

The Biden administration then sued to challenge the law and U.S. District Judge Robert Pitman, an Obama appointee, blocked SB 8, ruling it unconstitutional. Only 48 hours later, the Fifth Circuit, seen by many as the most conservative appeals court in the country, overturned Pitman's ruling in a 2-1 decision.

On Monday, the Department of Justice formally asked the Supreme Court to lift the Fifth Circuit's order that has allowed the law to continue to be enforced. 

In its response filed Thursday, Texas claims the DOJ lacks equitable cause and jurisdiction to sue Texas over SB 8. The government alleges the law violates the 14th Amendment, but Texas argues the right to an abortion is not required by law. 

“The idea that the constitution requires states to permit a woman to abort her unborn child is unsupported by any constitutional text, history, or tradition,” the brief states. 

The Department of Justice suggested the high court could bypass the Fifth Circuit and hear arguments in the case. Texas says that if the court decides to take that route, it should consider overturning Roe and Casey

“The Court erred in recognizing the right to abortion in Roe and in continuing to preserve it in Casey,” the response brief states. “Properly understood, the Constitution does not protect a right to elective abortion, and any laws affecting abortion should be subject only to a rational-basis test …. If it reaches the merits, the Court should overturn Roe and Casey and hold that SB 8 does not therefore violate the Fourteenth Amendment.”

Pro-abortion rights advocates do not mince words when speaking about the consequences of the Texas law.

Roe v. Wade doesn't exist at all in Texas right now and if that situation isn't rectified soon, it never will again,” Molly Duane, senior staff attorney at the Center for Reproductive Rights and counsel on the Whole Woman’s Health case, said in a phone call. 

The abortion providers' case continues in the Fifth Circuit. They have also appealed to the Supreme Court again to bypass the Fifth Circuit and ask for an expedited briefing. On Monday, the Supreme Court agreed to expedite consideration of their certiorari petition and ordered the defendants in the case to submit a response by Thursday. 

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In their response also filed Thursday afternoon, state officials called the abortion providers' lawsuit “deeply flawed” and urged the court to keep the case in the Fifth Circuit. 

“Given that the Fifth Circuit is prepared to do so imminently—having already set briefing for this case on an expedited basis, with argument only 46 days away— there is no basis for eschewing the normal avenue for appellate review by granting a writ of certiorari before judgment,” the brief states.

While Texas is arguing abortion rights do not fall under the 14th Amendment in the Department of Justice case, the state defendants' response in the Whole Woman’s Health case encourages Congress to take up this issue. 

“If the government is of the view that state laws violate citizens’ constitutional rights, Congress can use its Fourteenth Amendment enforcement power to preempt state law,” the brief states.  

Currently, the two lawsuits are arguing preliminary procedural matters — whether abortion providers sued the right defendants and whether the federal government has a cause of action to sue Texas for constitutional violations — while the larger substantive issues lie in the background. 

“It is interesting that the Supreme Court sees the two cases as moving in tandem and I think reflects an acknowledgment of the underlying substantive rights issue,” Duane said. “One of the briefs submitted by a defendant in the DOJ case pretty boldly acknowledged that they were explicitly trying to evade judicial review in the federal court.”

What makes this law different from previous challenges is how it is enforced. Instead of government officials enforcing the law, the enforcement power has been turned over to private citizens to sue anyone who aids in an illegal abortion. This includes everyone from those performing the abortion to an Uber driver who transported the patient to the clinic. 

This enforcement mechanism has created obstacles for those who seek to challenge the law because it is enforced by the judiciary. 

“This allows the state of Texas to raise jurisdictional issues about standing and sovereign immunity,” Adriana Pinon, senior staff attorney in policy council at the ACLU in Texas and co-counsel in the Whole Woman’s Health case, said in a phone call. “It allows the state of Texas to argue that the court does not have the ability to hear the case, which of course it's our position that that's bluntly incorrect … and gimmicks like the type that the state of Texas has been trying to employ cannot be a way to violate the Constitution.”

Joe Pojman, executive director of Texas Alliance for Life, said the success of SB 8 proves “the days are long gone when the abortion provider challenging a law that protects our unborn babies before viability can click his fingers and expect the court to immediately enjoin the law. Those days are gone.”

While SB 8 has been able to ban most abortions in the state, anti-abortion advocates are still looking to a Mississippi case, Dobbs v. Jackson Women’s Health, that the Supreme Court is set to hear in December.

“I don't think that this law will be the major case that will overturn or will give the court an opportunity to change the precedent of Roe and Casey,” Pojman said. “I believe it will be that Dobbs case … And that makes us really excited because Texas has passed another law … and it would give complete protection to the unborn child before viability when and to the extent that Supreme Court overturns Roe and Casey."

He added, "That means if the Supreme Court completely overturns what we consider to be the terrible and unjust Casey precedent, then our law would go into effect and completely protect unborn babies to the point of conception fertilization.”  

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