“As has been expressed by multiple justices, 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 filing says, asking the court to reconsider Roe and Planned Parenthood v. Casey, which affirmed the right in 1992.
“The court erred in recognizing the right to abortion in Roe and in continuing to preserve it in Casey.”
But Texas said the court need not take up those issues. Instead, it says, the court should find that the Biden administration lacks standing to challenge the Texas law in federal court.
“Federal courts are not ‘roving commissions assigned to pass judgment on the validity of the Nation’s laws,’ ” says the filing, quoting a 1973 Supreme Court decision. “Neither is the Department of Justice.”
“Texas designed S.B. 8 to violate the Constitution, as interpreted by this Court, and to thwart judicial review,” acting solicitor general Brian H. Fletcher wrote in his filing. He added, “That proposition is as breathtaking as it is dangerous.”
He said the result of the Supreme Court’s earlier decision to allow the law to go into effect Sept. 1 has been “the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights.”
The Texas law bars most abortions after cardiac activity is noted in the embryo. That can be as early as six weeks after a menstrual cycle, when many do not realize they are pregnant. The law makes no exceptions for rape or incest.
Supreme Court precedents limit prohibitions on abortion to the point of fetal viability, thought to be 22 to 24 weeks.
But Texas included an enforcement mechanism specifically 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 a prohibited abortion. Successful lawsuits would result in an award of at least $10,000 to the person who filed the complaint.
When the Supreme Court considered a request to keep the state law from going into effect, the majority’s one-paragraph opinion cited 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.
“Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” the majority wrote in allowing the law to go into effect.
In Thursday’s filing, Texas took that a step further, saying nothing has changed just because the federal government is involved.
“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 said.
Texas was supported by 19 states, who said they “have a critical interest in opposing the U.S. Attorney General’s assertion of authority to haul any State into court any time he believes any state legal rule violates anyone’s constitutional rights.”
The Supreme Court could decide what to do in the next few days. It is faced with the federal government’s request in U.S. v. Texas to put the law on hold. And abortion clinics and providers in Texas are asking in Whole Women’s Health v. Jackson that the court not wait for a ruling on the law from the 5th Circuit, which has scheduled a hearing on the merits of the law in early December.
The Supreme Court is scheduled on Dec. 1 to hear a challenge to the Mississippi law that conservatives have urged the court to use to overturn the constitutional right to abortion established by Roe.
Mississippi’s law would ban most abortions after 15 weeks of pregnancy, and lower courts struck it down as a clear violation of Supreme Court precedent regarding pre-viability restriction.