Biden administration fires warning shot to conservative justices in brief to halt Texas abortion law


The Biden administration has filed a new brief to the 5th U.S. Circuit Court of Appeals urging the judges to suspend the new Texas law that effectively bans most abortions after six weeks.

Other states have tried to impose similar early bans on abortions, only to have them blocked by courts on constitutional grounds based on the landmark 1973 Roe v. Wade decision.

The Texas law pushed by Gov. Greg Abbott tried to skirtRoe by offloading enforcement solely onto private citizens. They can collect at least $10,000 in damages and recover their legal costs if they successfully sue abortion providers or anyone who aids and abets a woman seeking to end a pregnancy after fetal cardiac activity is dected..

In its brief filed Monday night, the Justice Department 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.

According to The Associated Press, the DOJ brief argued: 

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.

In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.

Here is a Tweet with the full Justice Department brief:

The brief adds that “state sovereingty does not encompass the authority to defy the Federal Constitution.”

Last Friday, the 5th Circuit Court of Appeals, one of the most conservative appellate courts in the country, temporarily reinstated Texas’ harsh abortion law. That came two days after U.S. District Judge Robert Pitman issued a sweeping order blocking the law  at the request of the Justice Deparment.

The 5th Circuit granted Texas’ request for an administrative stay of Pitman’s order. It asked the Justice Department to respond by 5 p.m. local time on Tuesday  to a request by Texas that Pitman’s order be frozen while its appeal is considered by the 5th Circuit.

It is not clear when the 5th Circuit court will issue a ruling on whether to extend its temporary order allowing the Texas law to stand. But whatever the ruling the case is likely to end up before the Supreme Court again.

In early September, the U.S. Supreme Court, in a 5-4 shadow docket decision, declined to block the Texas law and allowed it to go into effect. The high court did not rule on whether the law and its unorthodox vigilante enforcement method were constitutional.

The Supreme Court’s decision regarding a bill that most legal analysts considered unconstitutional was seen as a sign that the court’s conservative majority was ready to overturn Roe v. Wade. In early December, the high court is scheduled to hear a case on a Mississippi law that bans abortions after 15-weeks.

The see-sawing court rulings have caused untold hardships for Texas women seeking to exercise their constitutional right to have an abortion.

When the law known as Senate Bill 8 was in effect, Texas patients had to make long journeys to get abortions at clinics in neighboring states. During the 48-hours that Pitman’s order was in effect, some Texas clinics performed abortions for women more than six weeks into their pregnancies.

The AP reported that Planned Parenthood made its own filing to the 5th Circuit Monday night that included numerous stories of Texas women impacted by the law, including one patient who they said was only 12 years old.

“Oklahoma staff are working overtime to care for Texas patients denied abortions,” attorneys for Planned Parenthood told the court.

In addition many of the nation’s top medical organizationsfiled an amicus brief to the 5th Circuit to express their opposition to Texas’ abortion ban.

The Texas law bans a abortions after fetal cardiac activity is detected, usually around six weeks into a pregnancy. A woman might not even know she is pregnant at that point. The law did not make any exceptions for pregnancies resulting from rape or incest,

Pitman’s strongly worded  113-page ruling effectively rebutted the specious arguments put forth by Texas Attorney General Ken Paxton and other Republican officials in Texas that the Justice Department had no legal authority to sue the state and hold Texas officials for lawsuits filed by private citizens.

“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their own lives in ways that are protected by the Constitution,” Pitman wrote in his opinion.

“This Court will not sanction one more day of this offensive deprivation of such an important right.”

And finally this underocer video which seems to be going viral on Twitter shows just how extreme Gov. Abbott is when it comes to women’s reproductive rights.


This is a Creative Commons article. The original version of this article appeared here.

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