Texas asks Supreme Court to leave abortion ban in place

Texas on Thursday asked the Supreme Court to leave its controversial abortion ban in place, arguing the Justice Department has no jurisdiction to fight it. Photo by Bonnie Cash/UPI

Oct. 22 (UPI) — Texas urged the Supreme Court on Thursday to reject the Justice Department’s request to block the state’s restrictive abortion law, stating the Biden administration has no standing to challenge it.

The state’s attorney general, Ken Paxton, filed its response to the Justice Department’s Monday request for the Supreme Court to block the law, the most restrictive in the country, after an appeals court days earlier ruled against the Biden administration and allow it to stand.

The law, which went into effect Sept. 1, bans most abortions after fetal cardiac activity is detected, which occurs around the sixth week of a pregnancy and before most know they are pregnant. The ban is enforced by the public, who can bring lawsuits against anyone who aids, abets or preforms an abortion. Successful lawsuits can mean a $10,000 cash judgement for those who file them.

In the filing on Thursday, Paxton argues the Justice Department has no place to challenge the law as the prohibition is not enforced by the state but by citizens.

“At bottom, the federal government’s complaint is that S.B. 8 is difficult to effectively enjoin. But there is no requirement that a state write its laws such that they can be easily enjoined,” the filing states. “Neither the federal government nor abortion providers are entitled to demand Texas write its law to permit them to be challenged in a pre-enforcement action in federal court.”

The state adds that the Justice Department’s lawsuit is “extraordinary in its breadth and consequence” and it fails to show what irreparable injury the government will incur if the law stands.

“The federal government cannot get an abortion,” Paxton writes.

The Biden administration argues that the law is unconstitutional as it bans abortions “long before viability,” violating previous Supreme Court rulings, including the landmark Rowe vs. Wade case.

“Texas took matters into its own hands by crafting an ‘unprecedented’ structure to thwart judicial review,” the Justice Department argued.

The Justice Department filed its ask after the three-judge panel of the 5th Circuit Court of Appeals ruled, without giving reason, that the law could stay active.

The filing comes the Supreme Court has been asked to expedite a separate lawsuit filed against the state by Texas abortion providers, which has yet being ruled on by an appeals court.

The Supreme Court early last month ruled 5-4 against the providers who had filed an emergency application to block the law from going into effect.

In a separate filing on Thursday, Paxton asked the Supreme Court to reject the providers’ request for the rarely used request to fast-track the case to the Supreme Court without an appeals judgement.

“If the structure of Texas’ Heart-Beat Law requires novel applications of this Court’s jurisdictional doctrines, that is all the more reason to let the Fifth Circuit consider these issues first,” he wrote.


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