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Supreme Court speeds review of Texas abortion law after feds seek freeze on enforcement

The Department of Justice filed the application with America’s highest court Monday after announcing it would challenge the appeals court’s decision to leave the new law in place.

Update: Updated at 4:45 p.m. with new information throughout.

WASHINGTON — The U.S. Supreme Court signaled interest Monday in providing a quick review of Texas’ six-week abortion ban, giving abortion providers and the state until Thursday to argue whether they should or not.

The order came shortly after the Justice Department filed an emergency application asking the court to halt enforcement of Senate Bill 8, which outsources enforcement to anyone willing to sue doctors or others who help a woman obtain an abortion after a fetal heartbeat is detected.

The court already plans oral arguments Dec. 1 on a Mississippi ban that kicks in at 15 weeks — also long before the threshold set in Roe vs. Wade, the 1973 landmark that stemmed from a Dallas County woman’s challenge of a Texas law making abortion illegal.

Although the Supreme Court rebuffed efforts to prevent SB8 from taking effect, it has not ruled on its constitutionality.

Roe held that women have the right to terminate a pregnancy until a fetus is viable outside the womb, roughly 22 to 24 weeks, making the Texas law an aggressive challenge to five decades of precedent.

On Monday, the Biden administration asked the high court to so something it refused to do just before SB8 took effect on Sept. 1: halt enforcement until federal courts sort out its legality.

Abortions plummeted in Texas until Oct. 6, when a U.S. district judge in Austin halted enforcement on grounds it was a blatant violation of Roe. A panel of the 5th Circuit Court of Appeals reversed that ruling two days later and on Thursday, the 5th Circuit extended that order.

The Justice Department announced Friday that it would ask the Supreme Court to vacate the appellate ruling, restoring the lower court injunction and allowing pre-viability abortions to resume in Texas.

“For half a century, this Court has held that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’ ” the federal government argue in its filing on Monday.

“S.B. 8 defies those precedents by banning abortion long before viability — indeed, before many women even realize they are pregnant,” the application reads. “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.”

Justice Samuel Alito, who handles legal emergencies out of the 5th Circuit, gave Texas until noon ET Thursday to respond to the Justice Department request. Soon afterward, the court issued an order setting the same deadline for Texas and abortion providers challenging its law to provide input on whether the court should take up the case.

Given the overlap with the Mississippi case, that suggests the court could combine the cases, though Texas’ novel enforcement mechanism raises unique issues.

States weigh in

Democratic attorneys general from 23 states and the District of Columbia quickly threw their support behind the Justice Department’s application, urging the Supreme Court to block SB 8.

Massachusetts led the push, joined by California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.

“This ban is blatantly unconstitutional under this Court’s longstanding precedents; is inflicting irreparable harms on people across Texas; and is harming people in our own States as well, including by impeding access to abortion for our own residents due to the large number of Texas residents traveling to seek care elsewhere,” the states argue.

Some legal scholars have warned that if Texas is allowed to violate the Constitution by delegating enforcement to private citizens, other states could do the same with other rights — a potential outcome denounced by the states siding with the Justice Department.

“State legislatures across the country have strongly held policy preferences in areas as diverse as gun rights, freedom of religion, marriage equality, and voting rights that may at times be in tension with, or even conflict with, constitutional principles,” they argue. “A state cannot be permitted to disregard that precedent by passing an unconstitutional law and shielding it from federal judicial review.”

The Texas ban is tied to detection of cardiac function, which can begin as early as six weeks into a pregnancy — or two weeks after a woman might have missed her period. The law includes an exception if the life of the woman is in danger, but not if the pregnancy resulted from rape or incest.

Instead of state enforcement, Texas’ abortion ban creates a bounty system that lets private citizens sue abortion providers or anyone else who aids or abets a woman who terminates her pregnancy — from clinic workers to an unwitting Uber driver. Democrats from Texas to the White House have decried bringing private citizens into the mix, calling it a “vigilante” system.

Successful plaintiffs receive court awards of at least $10,000 for each successful suit, and defendants cannot recover costs, even if they prevail.

“Let me see if I’ve got this right. In Texas, you are free — because it’s your own body — to refuse being vaccinated, even though you may infect others, but a woman is not free to decide whether or not to have an abortion, even if she’s been raped,” horror writer Stephen King tweeted.

“The president continues to believe that Roe v. Wade should be [and] is the law of the land,” White House press secretary Jen Psaki said, reiterating

Biden’s support for a Democratic push in Congress to codify the rights recognized in Roe.

The mere threat of costly lawsuits has dramatically cut the rate of abortions in Texas.

Abortion providers conducted only about 10% of the usual number of abortions during the first month the law was in effect.

Clinics in Oklahoma and other neighboring states have seen a flood of desperate Texas women, overwhelming their capacity. With appointments hard to come by, women in states adjacent to Texas have themselves been forced out-of-state before their pregnancies would be too far along.

“In New Mexico, for example, all abortion clinics were reportedly booked for weeks just one day after S.B. 8 went into effect, and Texans have accounted for close to a third of the total abortion patients in New Mexico since September 1,” the states supporting the Biden administration argued in their friend of the court brief, adding that California, Colorado, Illinois and Nevada have also felt the strain. “Texas cannot evade compliance with binding precedent simply by delegating to private individuals the task of enforcing a patently unconstitutional law.”

Reaction to DOJ filing

Abortion providers and advocacy groups praised the Justice Department’s filing.

“The Department of Justice has asked the Supreme Court to block Texas’s radical abortion ban,” Planned Parenthood tweeted. “We are grateful for this action and hopeful this time the Court will stop the law.”

“This is why elections matter,” the National Abortion Rights Action League (NARAL) wrote on Twitter.

The American Civil Liberties Union, calling SB 8 “extreme,” noted that this is the third time the Supreme Court has had an opportunity to assess its legality, asserting that “it must now take action and stop this ban from continuing to wreak havoc in Texas, forcing people to carry pregnancies against their will.”

The Justice Department cited “ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights” as grounds for the justices to step even immediately.

“The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit,” the application reads. “As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional.”

When the 5th Circuit allowed the Texas law to stand for the second time, anti-abortion groups celebrated. On Monday, they remained optimistic that the Supreme Court will also uphold the law and perhaps use it to as a vehicle to overturn Roe.

“This law has already saved hundreds of lives since going into effect,” said Carol Tobias, president of National Right to Life Committee. “In no other area, from Kabul to the border crisis to inflation, has President Biden called for a whole-of-government response except in supporting abortion…. And the abortion industry’s unfettered onslaught against the most vulnerable among us — unborn babies — is shocking.”

Emily Caldwell. Emily Caldwell is covering politics in Washington for The Dallas Morning News. She is from College Station, Texas, and graduated from The University of Texas at Austin in May with degrees in journalism and Latin American studies. She spent a number of years at The Daily Texan, UT's student newspaper, and was the editor-in-chief this past year.

emily.caldwell@dallasnews.com @EmilyECaldwell

Todd J. Gillman. Todd became Washington Bureau Chief in 2009 and has covered East Texas, Dallas City Hall and politics since joining The News in 1989. He's been elected three times to the White House Correspondents’ Association board, with a term ending in 2023. Todd has a Master in Public Policy from Harvard and a BA from Johns Hopkins in international studies.

tgillman@dallasnews.com @toddgillman
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