Supreme Court urged to halt “plainly unconstitutional” Texas abortion law

The Justice Department asked the Supreme Court for an emergency halt to what it called a “plainly unconstitutional” Texas law that has practically stopped access to abortion in the nation’s second-largest state.

The action means the court will again have to confront the controversial law, Texas SB8, which generally outlaws the procedure after six weeks of pregnancy.

New Jersey Attorney General Andrew J. Bruck as joined a coalition of 24 Attorneys General supporting the federal challenge to the Texas law in a brief asking the nation’s highest court to find that a federal judge’s October 6 injunction temporarily halting enforcement of the Texas law was proper, and that a Fifth Circuit Court of Appeals ruling staying that injunction on October 14 was incorrect.

Among other things, today’s amicus brief argues that Texas’s abortion law clearly violates the constitutional right to an abortion prior to viability – a Fourteenth Amendment right long recognized by the Supreme Court and cemented by “nearly a half century of binding precedent.”

In a divisive 5 to 4 decision last month, the court allowed the law to go into effect, although dissenters said it violated the nearly 50-year-old precedent in Roe v. Wade that guaranteed a right to abortion before fetal viability.

The Biden administration raises different arguments in its filing, and says the court must intervene to prevent an end run around its authority and the Constitution.

“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.”

The Texas law (S.B. 8) bans most abortions after approximately six weeks, and contains no exceptions for pregnancies that result from rape, sexual abuse and incest, or for pregnancies involving a fetal defect incompatible with life after birth.

Today’s brief argues that S.B. 8 is tantamount to “an across-the-board ban on constitutionally protected conduct” and asserts that the law has made it all but impossible to obtain an abortion in Texas.

The brief further argues that Texas’ law has created widespread fear among abortion providers of being targeted under a provision that deputizes private citizens and private entities – but not Texas state or local officials – to enforce the law by filing civil lawsuits.

Under the law, private parties are allowed to recover a minimum of $10,000 from individuals who facilitate an abortion prohibited by the law, including anyone who performs or induces a prohibited abortion, anyone who aids or abets the performance or inducement of a prohibited abortion, and anyone who intends to participate in a prohibited abortion.

Today’s multi-state brief refers to Texas’ granting of enforcement powers to private citizens – and not state officials – as an evasive “scheme” employed for the purpose of “trampling constitutional rights under the color of state law.”

On October 6, a federal judge in Texas issued a preliminary injunction blocking enforcement of the Texas law, and in a 113-page ruling that accompanied the injunction agreed with the position taken by both DOJ and the amicus states.

In his ruling, the judge wrote that, “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

On October 8, the Fifth Circuit Court of Appeals temporarily held the injunction in abeyance, and, on October 14, issued a stay blocking the injunction issued by Judge Pitman. These rulings cleared the way for the Texas law to go into effect.

DOJ has since asked the Supreme Court to vacate the Fifth Circuit’s stay, which would put Judge Pitman’s preliminary injunction back in force.

Today’s multi-state brief supports DOJ’s request, noting that Judge Pitman’s preliminary injunction is necessary to halt “irreparable harms” being done to countless Texas residents.

The brief observes that such harms “are rippling well beyond Texas into other states, as people are forced to seek care elsewhere, in many cases overwhelming capacity and threatening our own residents’ access to care.”

Last month, a multi-state coalition filed an amicus brief with the U.S. District Court supporting DOJ’s lawsuit and asserting that Texas’ law “represents a new and dangerous frontier.”

At its core, New Jersey and the other participating states asserted in that September filing, the law represents “open and purposeful disregard” of precedent set in Roe v. Wade, and in another, more recent U.S. Supreme Court case, Planned Parenthood v. Casey.

The September brief also asserted that if Texas’s law is upheld and additional states ultimately use similar strategies to enact “copycat” laws placing similar strictures on most abortions, it could have disastrous consequences for the nation.

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