DOJ urges Supreme Court to block fetal heartbeat law in Texas

AP Photo/Jose Luis Magana

The legal challenges continue against the new Texas fetal heartbeat law. The Department of Justice filed a brief on Monday asking the Supreme Court to temporarily block the law while legal challenges move forward. DOJ describes the law as “plainly unconstitutional.” The court signaled it will act quickly.


Justice Samuel Alito, who oversees the federal appeals court responsible for Texas, gave officials until Thursday at noon to respond to DOJ’s application. A ruling would likely come in a few days. DOJ requests that the Supreme Court adds consideration of the question of constitutionality to its docket. The court already has an abortion case in Mississippi on its fall docket.

Leaving the law in effect, the brief said, would allow Texas to flout half a century of Supreme Court precedents that forbid states from banning abortions before fetal viability, or about 22 to 24 weeks into a pregnancy. The challenged law, called Senate Bill 8, has been in force since the beginning of September and effectively bars abortions after around six weeks of pregnancy.

“It virtually eliminated access to abortion in Texas after six weeks of pregnancy,” the brief said. “Texas has, in short, successfully nullified this court’s decisions within its borders.”

Saying the matter was urgent and important, the brief also asked the court to consider adding the question of the law’s constitutionality to the docket of cases it plans to hear this year, bypassing the appeals court, which is scheduled to hear arguments on it in December. The Supreme Court is already scheduled to hear another major abortion case, involving a Mississippi law, in December.

“S.B. 8 is an affront to the United States’ sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this court remain available to challenge unconstitutional state laws,” the Justice Department brief said.


In a separate case, abortion providers are asking the Supreme Court to take another look at the law and its ruling last month that allowed the law to go into effect. Last month a majority of the justices ruled that procedural obstacles counseled against granting their request to block the law. The law, signed by Governor Abbott in May, was allowed to go into effect on September 1. The court ordered Texas officials to respond to the abortion providers’ motion by noon Thursday, the same deadline as the one set to respond to DOJ’s filing. DOJ objected to the joint deadline by claiming the cases are different.

Late last month, the providers asked the court to take another look at the case and to put their request on an unusually fast track. Late Monday afternoon, after having taken no action on the request for almost a month, the court ordered officials in Texas to respond to the providers’ motion by noon on Thursday, the same deadline it had set for a response to the Justice Department’s application.

The Justice Department, in a brief filed by Brian H. Fletcher, the acting solicitor general, said the two cases were different. The federal government has interests and powers different from those of private litigants, he wrote, adding that it is not required to overcome the procedural hurdles at issue in the earlier ruling.


Brian H. Fletcher, the acting solicitor general, argued that the federal government has different powers and interests than private litigants. He said the federal government is not required to overcome procedural obstacles as private individuals are required to do.

The Texas law is the strictest fetal heartbeat law in the country. Pro-abortionists argue that many women don’t realize they are pregnant by six weeks, the cut-off time when a fetal heartbeat is usually first detected. The unique feature in the Texas law, known as SB 8, is that private citizens can enforce the law against abortion providers and also against those who might assist a woman in getting an abortion – like a driver or someone paying for the abortion. There is a tipline where private citizens can report violations and monetary rewards are offered in return. In other words, the state wouldn’t bring a lawsuit against an abortion provider, it would be a private citizen. In past legal challenges, the laws passed in other states have been struck down due to the federal law allowing abortion to take precedent over state law.

There have been several rulings on the law since it went into effect on September 1. Lawsuits have been filed against it and so far the lawsuits have not made it to trial. The law remains in effect now, thanks to a ruling by the U.S. Court of Appeals for the Fifth Circuit last week. A three-judge panel stayed the ruling of Judge Pitman, a liberal district court judge in Austin, that the law must be struck down. DOJ wants the Supreme Court to lift the stay now in place.


Fletcher argues that the Texas law if allowed to remain in effect, is a slippery slope that would allow other states to write laws that “nullify other precedents or suspend other constitutional rights. Our constitutional system does not permit states to so easily thwart the supremacy of federal law.”

“A state might, for example, ban the possession of handguns in the home or prohibit independent corporate campaign advertising and deputize its citizens to seek large bounties for each firearm or advertisement,” Mr. Fletcher wrote, noting that both laws would contravene Supreme Court precedents.

“The state’s ingenuity,” Mr. Fletcher wrote, “does not permit it to nullify constitutional rights in that manner.”

This argument is illogical to me. The Second Amendment, for example, is in the Bill of Rights. Roe v Wade was decided by the Supreme Court and those opposed to it consider it an unconstitutional decision made by a liberal pro-abortion court. Legal abortion for women was declared permittable prior to the viability of the fetus. We know the ruling was made using the Due Process Clause of the 14th Amendment – the right to privacy.

We’ll wait for the responses to both of these cases that are due by Thursday. In the meantime, the legal challenges continue and the question of the constitutionality of the law in Texas won’t be settled anytime soon.


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David Strom 5:00 PM | May 23, 2024