Texas urges Supreme Court to reject new challenge to its strict abortion law

WASHINGTON —

Questioning whether a “right to abortion exists” in this country, Texas state lawyers urged the Supreme Court on Thursday to reject the Biden administration’s plea to suspend a new state law that makes it illegal for doctors to perform abortions after about six weeks of a pregnancy.

In a court filing, they stated that the federal government does not have the authority to intervene in Texas’ dispute. They wrote that the Justice Department has no standing since it has not been hurt by SB 8. “The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion.”

Moreover, “if a right to abortion exists, it is a private right,” they said, and disputes may be resolved through lawsuits “between private parties — not the state,” they said.

This refers to the Texas Heartbeat Act’s novel bounty-hunter provision, which prohibits abortions once a fetal beat can be detected. This is usually around six weeks. According to the filing, doctors who performed illegal abortions were subjected to private lawsuits. However, state officials weren’t charged with its enforcement.

Now, the justices must decide whether they will intervene in Texas’ case to either temporarily block the law or review its constitutional status fast-track or both.

In September, the court voted 5-4 to block the Texas law’s implementation. They cited “complex and new… procedural issues.”

A week later, U.S. Atty. General Merrick Garland declared that the Justice Department would sue Texas for violating constitutional rights of pregnant women. For nearly 50 years, the high court had said women had a right to choose abortion, he said, and Texas had no authority to defy the Constitution.

But earlier this month, in a 2-1 decision, the U.S. 5th Circuit Court of Appeals kept Texas’ law in force. The Justice Department filed an emergency appeal to that court on Monday.

The appeal requested that the court stop the Texas law from being in effect because it was clearly not constitutional. The U.S. solicitor General acting in this case suggested that the court also consider reviewing the case in order to resolve the procedural and constitutional questions raised by Texas law.

Citing that request, the Texas attorneys said they would welcome an opportunity to argue for overturning Roe vs. Wade and the right to abortion.

“There will always be states who seek to protect unborn life through their laws, and there will be those who seek to challenge such laws, unless and until this court returns the question of abortion to where it belongs — the states,” they wrote.

The justices are already set to reconsider the right to abortion in a case from Mississippi, which is defending a 15-week limit on abortions. After winning a May review, the state’s lawyers raised the stakes by arguing that the court should completely overturn Roe vs. Wade and allow states to make almost all abortions a crime if necessary. The court will hear arguments on Dec. 1 in that case, Dobbs vs. Jackson Women’s Health Organization.

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