The department’s announcement means the high court will be asked for the second time to put the law on hold while legal challenges to it continue. In a divisive 5-to-4 decision last month, the court allowed the law to take effect, though even the majority said it raised constitutional concerns.
The developments in Texas underscore what could be a moment of reckoning for abortion rights at the Supreme Court, as opponents of the procedure see a new opportunity for victory because of the court’s changed membership. Three justices chosen by President Donald Trump were in the majority that refused to block the law last month.
On Dec. 1, the court will hear a challenge to a Mississippi law that conservatives have urged the court to use to overturn the constitutional right to abortion established nearly a half-century ago in Roe v. Wade. More than 125 friend-of-the-court briefs have been filed on both sides of the issue.
Mississippi’s law would ban most abortions after 15 weeks, and was struck down by lower courts as a clear violation of Supreme Court precedent. Roe and subsequent decisions say a state may not impose undue burdens on the right to choose abortion before fetal viability, normally gauged to be between 22 and 24 weeks.
Texas’s law is far more restrictive. It bars abortion as early as six weeks into the pregnancy, when many do not realize they are pregnant, and makes no exceptions for rape or incest.
It, too, would probably have been struck down, except for an enforcement mechanism specially designed to avoid federal court review.
Usually in challenging abortion restrictions, opponents seek to enjoin government officials from enforcing laws that violate constitutional protections. But the Texas law is enforced by private citizens, rather than the state government. Any individual can sue anyone who helps a woman get an abortion after cardiac activity is detected in the womb. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.
The Supreme Court’s initial ruling on the ban stemmed from a different challenge that raised separate legal issues from the Justice Department complaint. In that earlier case, the majority’s one-paragraph opinion allowing the ban to stand noted the law’s “complex and novel” procedural questions, and said it was not clear that abortion providers challenging the law were suing the proper defendants.
Chief Justice John G. Roberts Jr., who dissented, said the “not only unusual, but unprecedented” procedure of outsourcing the ban’s enforcement deserved more exacting judicial scrutiny before being allowed to take effect.
The court’s three liberal justices were more heated.
“The Court’s order is stunning,” wrote Justice Sonia Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
The Justice Department then entered the fight, and won a stay of the law from a district judge, who said he would “not sanction one more day of this offensive deprivation of such an important right.”
“A person’s right under the Constitution to choose to obtain an abortion before fetal viability is well established,” U.S. District Judge Robert L. Pitman, a nominee of President Barack Obama, wrote in a 113-page ruling. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”
But the U.S. Court of Appeals for the 5th Circuit quickly put Pitman’s order on hold, and on Thursday it said the law would remain in effect, setting a hearing the week of Dec. 6.
In a 2-to-1 order, the judges gave no detailed reasoning for their action. Judges James C. Ho, a Trump nominee, and Catharina Haynes, a nominee of President George W. Bush, were in the majority. Judge Carl E. Stewart, a nominee of President Bill Clinton, dissented.
The majority cited a previous ruling in the original challenge, which said that because the ban is enforced by private individuals and not government officials, it is not clear when and how the law can be challenged in federal court.
“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8,” Justice Department spokesman Anthony Coley said in a brief statement Friday. It did not say when.
The battle over the law’s enforcement mechanism has effectively halted almost all abortions in Texas, with clinics in nearby states reporting a spike in the number of patients they are seeing from Texas. Providers and advocates say poorer women, or those who have inflexible work or child-care obligations, are being forced to continue with unwanted pregnancies.
The legal back-and-forth, with the district judge suspending the law and the appeals court temporarily reinstating it less than 48 hours later, has created a state of confusion, abortion providers say.
“When the Fifth Circuit panel stayed the preliminary injunction last weekend, more than 20 patients at Planned Parenthood health centers had urgent care ripped away from them — even though they had access less than 24 hours before,” Helene Krasnoff, vice president for public policy law and litigation at Planned Parenthood Federation of America, said in a statement. “And thousands of Texans continue to be deprived of their rights by S.B. 8, which is blatantly unconstitutional and violates fifty years of precedent.”
Texas Attorney General Ken Paxton (R) has argued that the federal government cannot sue Texas officials, and the only way to directly challenge the constitutionality of the law is to wait until a doctor is sued under its provisions in state court. Three such lawsuits have been filed, but none have moved forward yet.
In a tweet late Thursday, Paxton said the 5th Circuit’s ruling is “a testament that we are on the right side of the law and life.” He pledged to “continue to fight back against the Biden Admin’s lawless overreach.”
To be successful in halting the law, the Justice Department would have to persuade at least one of the conservative justices who were in the majority for the previous Texas decision — Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh or Amy Coney Barrett — to switch sides.
The Supreme Court was asked to consider the law before it took effect; the Justice Department has drawn attention to the changed conditions in the state since it has been in place.
And the Justice Department can now point to Pitman’s detailed ruling to bolster its contention that the federal government must be permitted to take action to prevent an end run around the judicial system.