Justice Department asks Supreme Court to lift Texas abortion ban

In papers filed Monday, acting U.S. Solicitor General Brian Fletcher urged the court to intervene on an emergency basis to block the law. Fletcher also suggested the justices hear arguments in the case and issue a definitive ruling, a move that would raise the stakes in what already is a watershed fight.

The department said the Texas law violates Supreme Court precedents protecting abortion rights and unconstitutionally attempts to avoid judicial review with a novel mechanism that puts enforcement in the hands of private parties.

“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,” said Fletcher, the Biden administration’s top Supreme Court lawyer.

The Supreme Court asked Texas to respond by 12 p.m. Washington time Thursday. 

The Supreme Court has already refused to block the law once, when it rejected abortion providers on Sept. 1 and largely shut down the procedure in the second-most populous U.S. state. The majority said in that 5-4 decision that providers challenging the law had “raised serious questions regarding the constitutionality” of the measure but hadn’t shown they could overcome procedural obstacles stemming from the unusual enforcement mechanism.

The Justice Department request adds a new layer to a Supreme Court term already guaranteed to be a pivotal one for abortion rights. The court will hear arguments in December on a Mississippi appeal that aims to give states far more power to restrict abortion and even asks the court to overturn Roe v. Wade, the landmark 1973 ruling that legalized the procedure nationwide.

The new request follows last week’s 2-1 federal appeals court decision that let the law stay in effect as the case goes forward even though a trial judge ruled the measure was unconstitutional.

Judicial power

The Texas law, known as Senate Bill 8, bars abortion after fetal cardiac activity can be detected and puts clinics that violate it at risk of being shut down. The measure lets private parties sue a clinic or anyone who helps a woman get an abortion—and collect a minimum of $10,000 in damages per procedure — but doesn’t authorize government officials to sue alleged violators.

The provision left it unclear how, if at all, a court could stop the law. Normally, judges faced with an unconstitutional law can issue an order directed at the government officials who have enforcement powers.

In its Sept. 1 decision, the Supreme Court said that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”

In temporarily blocking the law on Oct. 6, U.S. District Judge Robert Pitman said he could issue an order binding the state as a whole as well as the judges and clerks who would handle any private enforcement suits.

Ruling otherwise would mean that “any number of states could enact legislation that deprives citizens of their constitutional rights, with no legal remedy to challenge that deprivation, without the concern that a federal court would enter an injunction,” Pitman wrote.

Pitman also concluded the Justice Department had legal standing to challenge the law, in part because of the impact on federal agencies that arrange for abortions in Texas, including the Bureau of Prisons and the Defense Department.

—With assistance from Chris Strohm.

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