The Justice Department asked the Supreme Court on Monday to temporarily block enforcement of the Texas law banning abortion after six weeks of pregnancy.
It was the second challenge of the law to reach the court on an emergency appeal, seeking to put it on hold while lawsuits contesting its constitutionality work their way through the lower courts. By a 5-4 vote, the court turned away the first appeal in early September, saying the case presented “complex and novel” questions about whether the court had the authority to hear it, given the unusual structure of Senate Bill 8, as the law is known.
The court signaled its intent to move quickly with the latest challenge, ordering Texas to file a response by noon Thursday.
The appeal filed Monday involved a separate challenge to the law brought by the Biden administration. It claimed that Texas could not take away the right of access to abortion without providing a means to defend the right in court.
“Rather than forthrightly defending its law and asking this court to revisit its decisions, Texas took matters into its own hand by crafting an unprecedented structure to thwart judicial review,” the Justice Department said in its emergency appeal.
Allowing the law to remain in effect would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights,” it said.
The Texas law, unlike every other abortion restriction to come before the Supreme Court, does not depend on state officials to enforce it. Instead, anyone can file a private lawsuit against an abortion provider and seek up to $10,000. The law has stopped nearly all abortions in the state, forcing women seeking treatment to travel to other states.
Texas has “successfully nullified” the Supreme Court’s past decisions on abortion within the state’s borders, the Justice Department’s court filing said.
U.S. District Court Judge Robert Pitman blocked enforcement of the law in early October, saying Texas was carrying out “an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” But the U.S. Court of Appeals for the 5th Circuit put a hold on his ruling, which allowed the law to go back into effect.
The issue of whether the Constitution provides a right to abortion will be squarely before the Supreme Court in December, when the justices hear a challenge to Mississippi’s law that would ban abortion after 15 weeks. That case presents a direct challenge to the court’s abortion precedents, including Roe v. Wade, which say states cannot ban abortion before fetal viability.
CORRECTION (Oct. 18, 2021, 1:58 p.m. ET): A previous version of this article misspelled the last name of a U.S. District Court judge. He is Robert Pitman, not Pittman.