The Department of Justice is going back to the U.S. Supreme Court to request that it block Texas’ near-total abortion ban while the legal fights continue.
“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8,” Justice Department spokesman Anthony Coley said in a brief statement Friday.
But it’s questionable whether the court’s conservative majority wil rule any differently than it did in another case in early September when it allowed the Texas abortion law to go into effect in a controversial 5-4 “shadow docket” ruling.
The Justice Department announcement comes a day after the U.S. Fifth Circuit Court of Appeals, the most conservative appellate court in the country, in a 2-1 decision rejected DOJ’s request to put on hold enforcement of Texas’ law which bars abortions as early as six weeks into pregnancy. The law also makes no exception for rape or incest.
The brief order was backed by Judges James C. Ho, a nominee of Donald Trump, and Catharina Haynes, a nominee of George W. Bush. Judge Carl E. Stewart, a nominee of President Bill Clinton, dissented.
Here is a copy of the ruling:
Last Friday, the same panel of judges temporarily reinstated the Texas law, less than 48 hours after U.S. District Judge Robert Pitman issued an order blocking the law at the request of the Justice Deparment. They gave the Justice Department until Tuesday to file a brief challenging the ruling.
Pitman, a nominee of Barack Obama, temporarily suspended enforcement of the abortion ban last week in a strongly worded 113-page ruling that said he would “not sanction one more day of this offensive deprivation of such an important right.”
“A person’s right under the Constitution to choose to obtain an abortion before fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”
But at the request of Texas Attorney General Ken Paxton, the 5th Circuit panel put Pitman’s order on hold and reinstated the law pending further review. It set a hearing date for the week of Dec. 6.
The conserevative judges on the 5th Circuit panel on Thursday cited the Supreme Court’s “shadow docket” ruling and its own previous decision in the case as the basis for its decision to leave the Texas law in effect. These previous decisions used the fig leaf offered by Texas that it was not clear whether federal courts have a role in reviewing the Texas law.
So far no court has addressed the issue of whether Texas’ ban violates the landmark 1973 Roe v. Wade ruling and subsequent Supreme Court decisions guaranteeing the right to an abortion until viability, usually about 22 to 24 weeks into a pregnancy.
The Texas law tried to skirt around judicial review of the law’s constitutionality by having the abortion ban enforced by private individuals rather than government officials.
In his filings to the 5th Circuit, Paxton cited that provision in the law to argue that the U.S. government cannot sue Texas officials. Instead, he claimed that the only way to directly challenge the law’s constitutionality is to wait until someone is sued under the law in state court.
Under the law, private Individuals can sue anyone who helps a woman get an abortion after cardiac activity is detected in the womb, usually around the six-week mark. Many women do not even know they are pregnant at that point. Successful lawsuits can result in an award of at least $10,000 to the person who filed the complaint and compensation for legal costs.
Since the law took effect on Sept. 1, Texas women have been forced to scramble to make long, costly trips to abortion clinics in nearby states. Women who lack the funds to make such trips or cannot take time off from work are forced to continue with unwanted pregnancies or seek riskier options for terminating a pregnacy.
The website of a Texas abortion rights group lists only 19 abortion clinics in the state. The Texas law may eventually be found to be unconstitutional, but the real danger is that more clinics may be forced to close the longer the law remains in effect.
The Justice Department, in a brief filed Monday night, sent a clear warning to conservative justices on the 5th Circuit and Supreme Court that there could be unintended consequences if they allow Texas’ abortion law to remain in effect.