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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