Texas, Justice Department, abortion providers file arguments as abortion ban battle draws closer to Supreme Court


Hannah Wolfe, left, protests against abortion rights as Laurie Arbeiter protests for abortion rights in front of Wolfe, outside the United States Supreme Court building in Washington, United States, October 4 2021.

Lea Millis | Reuters

Texas officials presented their case to the Supreme Court on Wednesday to dismiss two challenges to a restrictive state law that bans most abortions as early as six weeks pregnant.

In a 93-page brief, officials argued that since Texas law is enforced by private citizens instead of the state government, the two lawsuits were wrongly brought against them. “No official in the state executive actually enforces [the law]Texas wrote, “making the injunction an inappropriate attempt to impose a law rather than a person.”

But the Biden administration, in its own court record, called the enforcement mechanism a “brazen attack on the supremacy of federal law,” arguing that “if Texas is right, no decision of this court is certain. “.

And a group of abortion rights advocates and providers in a separate brief urged the High Court to reject Texas’ “cynical strategy” to avoid judicial review.

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These documents were filed less than a week before all nine justices were ready to hear oral arguments in the two cases – Whole Woman’s Health v. Jackson and United States v. Texas – which were recently rushed for briefing and oral argument.

The court had previously been criticized for refusing to rule on an emergency offer to block the law before it came into force in September. The majority in that 5-4 decision included the three people appointed by former President Donald Trump to the bench, while Chief Justice John Roberts sided with the Liberals in court.

But the judges later granted an appeal to consider a challenge to the law, even though the litigation was still pending in a lower court. The court set a timeline in the case on Friday and one presented by the Justice Department, with briefings due Wednesday, responses due Friday and arguments set for Monday morning.

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The law, SB 8, prohibits most abortions after detection of a fetal heartbeat, which can occur as early as the sixth week of gestation. At this point, many women have yet to find out that they are pregnant.

Critics say SB 8 violates Roe v. Wade, the 1973 Supreme Court ruling granting the right to an abortion prior to fetal viability, which is typically around 24 weeks. The Texas brief makes no explicit reference to Roe, but argues that the law is consistent with another case, Planned Parenthood v. Casey of 1992, which protects against states imposing an “undue burden” on access to abortion.

SB 8, which was signed by Republican Gov. Greg Abbott in May, does not include an exception for pregnancies resulting from rape or incest.

Rather than tasking state officials with enforcing the six-week ban, SB 8 delegates this power to private citizens, who are allowed to sue, for at least $ 10,000, anyone who “assists or encourages “an abortion.

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Because of this, the two cases against the law suffer from “the inability to identify a suitable defendant,” Texas officials argued in their brief on Wednesday.

But attorneys for Texas abortion providers have argued that federal courts must be able to respond to complaints against the “grossly unconstitutional law.”

The provisions of the law “create a one-on-one-do-you-lose-lose regime whose obvious purpose is to deter and impede access to federal and state courts,” the advocates wrote.

The Justice Department argued that SB 8’s “unprecedented structure” is designed “to thwart judicial review.”

If allowed to stay, Texas legislative strategy would mean that “states do not need to comply with, or even challenge, precedents with which they disagree,” the DOJ wrote in its memory. “They can simply prohibit the exercise of any right they oppose; reject state enforcement; and delegate to the general public the power to bring harassment actions threatening ruinous liability.”

The DOJ noted that “other states are already seeing SB 8 as a model.”