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Justice Department asks Supreme Court to block Texas’ abortion ban as legal challenges continue

A group of people protest in support of women's reproductive healthcare and abortion access outside the Texas Capitol.
Gabriel C. Pérez
Ishia Lynette and Namdie Adams hold signs in support of abortion rights at a rally outside the Texas Capitol on Sept. 11.

The Biden administration has asked the U.S. Supreme Court to block the Fifth Circuit Court of Appeals’ recent ruling allowing Texas’ six-week abortion ban to stay in effect.

The Fifth Circuit, the most conservative federal appeals court in the country, sided with state officials who asked it to keep the law in place while legal challenges move through the courts.

As the case proceeds, the majority of people seeking abortions in Texas have been unable to obtain the procedure in the state.

In their petition to the Supreme Court, federal officials claim Senate Bill 8 defies the legal precedent set by Roe v. Wade, which grants people the constitutional right to an abortion in the U.S.

“S.B. 8 defies those precedents by banning abortion long before viability — indeed, before many women even realize they are pregnant,” the Justice Department wrote in its filing. “Texas is not the first State to question Roe ... But rather than forthrightly defending its law and asking this Court to revisit its decisions, Texas took matters into its own hands by crafting an ‘unprecedented’ structure to thwart judicial review.”

Other states have passed similar laws that aim to limit abortion as early as six weeks into a pregnancy, but they have been blocked by the courts. Texas' law has been allowed to stay in effect because it was written to be enforced by anyone, not by the state.

Under the law, people can sue anybody who provides assistance of any kind to a person who gets an abortion after six weeks — whether it's the doctor who performs the procedure or a person who offers a ride to an appointment. The person who sues does not even need to live in Texas.

Federal officials say the law’s “use of that scheme has already allowed Texas to nullify this Court’s precedents” for a month and a half.

“The fundamental question presented in this case is whether States may nullify disfavored constitutional rights by purporting to disclaim their own enforcement authority and delegating enforcement of unconstitutional laws to private bounty hunters,” the U.S. Justice Department wrote in its filing. “That state of affairs should not be allowed to persist — or spread to other States or other rights — without this Court’s review.”

Ashley Lopez covers politics and health care. Got a tip? Email her at Follow her on Twitter @AshLopezRadio.
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