Texas, DOJ and abortion providers file arguments as abortion ban fight nears Supreme Court

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

Leah Millis | Reuters

Texas officials on Wednesday laid out their case for the Supreme Court to dismiss two challenges to a restrictive state law that bans most abortions after as early as six weeks of pregnancy.

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

But the Biden administration in its own court filing slammed that enforcement mechanism as a “brazen attack on the supremacy of federal law,” arguing that “if Texas is right, no decision of this Court is safe.”

And a group of abortion-rights providers and advocates in a separate brief urged the high court to reject Texas's “cynical strategy” to avoid judicial review.

Those filings came less than a week before the nine justices are set to hear oral arguments in both casesWhole Woman's Health v. Jackson and United States v. Texas — which were recently fast-tracked for briefing and argument.

The court had previously come under fire for declining to rule on an emergency bid to block the law before it went into effect in September. The majority in that 5-4 ruling included all three of former President Donald Trump‘s appointees to the bench, while Chief Justice John Roberts sided with the court's liberals.

But the justices later granted an appeal for them to consider a challenge to the statute, even as litigation was still pending in a lower court. On Friday, the court laid out a schedule in that case and another one brought by the Department of Justice, with briefings due Wednesday, replies due Friday and arguments set for Monday morning.

The law, S.B. 8, bans most abortions after the detection of a fetal heartbeat, which can occur as early as the sixth week of gestation. By that point, many women have yet to discover they are pregnant.

Critics say S.B. 8 violates Roe v. Wade, the 1973 Supreme Court ruling that grants the right to an abortion before fetal viability, which is generally around 24 weeks. Texas' brief makes no explicit reference to Roe, but argues that the law is consistent with another case, 1992's Planned Parenthood v. Casey, which protects against states placing an “undue burden” on abortion access.

S.B. 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 task state officials with enforcing the six-week ban, S.B. 8 delegates that power to private citizens, who are allowed to sue, for at least $10,000, anyone who “aids or abets” an abortion.

For that reason, both of the cases against the law suffer from the “inability to identify an appropriate defendant,” Texas officials argued in their brief Wednesday.

But lawyers for the Texas abortion providers argued that federal courts must be able to respond to claims against the “blatantly unconstitutional statute.”

The law's provisions “create a heads-I-win-tails-you-lose regime whose evident purpose is to deter and obstruct access to federal and state court,” the advocates wrote.

The Department of Justice argued that the “unprecedented structure” of S.B. 8 is designed “to thwart judicial review.”

If allowed to stand, Texas' legislative strategy would mean that “states need not comply with, or even challenge, precedents with which they disagree,” the DOJ wrote in its brief. “They may simply outlaw the exercise of whatever rights they disfavor; disclaim state enforcement; and delegate to the general public the authority to bring harassing actions threatening ruinous liability.”

The DOJ noted that “other states are already regarding S.B. 8 as a model.”



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