Texas' six-week abortion ban: Biden administration takes case back to Supreme Court

WASHINGTON – Texas' ban on abortion after six weeks of pregnancy returned to the Supreme Court on Monday after the Biden administration sought emergency review of a lower court's ruling that allowed the controversial law to remain in place. 

The appeal gives the high court a chance to temporarily block enforcement of the most restrictive abortion law in the country for the second time in as many months and represents the latest development in a whirlwind of litigation around the Texas ban.

Because the case is filed on the court's emergency docket, the justices are likely to move swiftly – possibly within a matter of days – to address it. 

The law "is plainly unconstitutional under this court’s precedents," the Justice Department told the court in its appeal. "And Texas’s insistence that no party can bring a suit challenging S.B. 8 amounts to an assertion that the federal courts are powerless to halt the state’s ongoing nullification of federal law. That proposition is as breathtaking as it is dangerous."

Justice Department lawyers appealed to the Supreme Court days after the New Orleans-based U.S. Court of Appeals for the 5th Circuit ruled the Texas ban could remain in effect. The Biden administration wants to block enforcement while a lower court addresses the underlying constitutional questions raised in the challenge to the law.

A spokesperson for Texas Attorney General Ken Paxton did not respond to a request for comment. The Supreme Court has asked Texas to respond to the appeal by midday Thursday. 

A three-judge panel of the 5th Circuit released a one-paragraph order Thursday allowing the law to remain in effect. One of the judges, nominated by President Bill Clinton, dissented. The other two judges were nominated by Republican presidents.  

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The rapid legal machinations underscore the significance of a controversy that has thrust abortion back into the mainstream of America's culture wars and given advocates on both sides of the debate reason to question the future of the court's landmark 1973 decision in Roe v. Wade establishing a right to abortion.

Opponents of the Texas law have described the Justice Department's lawsuit, filed last month, as the best opportunity to quickly put the issue back before the Supreme Court. But the case is one of several percolating in state and federal courts challenging the law.

The Texas law, signed by Republican Gov. Greg Abbott in May, bans abortions when cardiac activity is detected, which can occur at six weeks. The law includes no exception for rape or incest but permits the procedure for "medical emergencies."

Abortion clinics in Texas sued state court officials and the Texas attorney general in July to stop the law, but the Supreme Court turned away the challenge in September, allowing the law to remain in effect for the time being. A 5-4 majority pointed to the unusual mechanism Texas embraced to enforce the law to assert that the defendants in the case couldn't be sued because they were not technically enforcing the law. 

Rather than having the state government enforce the ban, Texas encourages private citizens to sue anyone who helps a person get an abortion. A successful plaintiff could receive at least $10,000 from the abortion provider or others in damages.

The Justice Department stepped in after that Supreme Court decision, filing a new lawsuit against the state of Texas. The Biden administration accused the state of working "in open defiance of the Constitution," noting that the court's decisions in Roe v. Wade and Planned Parenthood v. Casey in 1992 prohibited states from banning abortions before a fetus can survive outside the womb, or at about 24 weeks of pregnancy. 

U.S. District Judge Robert Pitman, who was nominated by President Barack Obama, temporarily blocked the Texas law on Oct. 6, asserting that the state "deliberately circumvented the traditional process" and "drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates." Texas appealed the decision a day later. 

The three-judge panel of the 5th Circuit that included judges appointed by Presidents Clinton, Donald Trump and George W. Bush stayed the lower court's ruling late Thursday.

With conservatives carrying an ostensible 6-3 majority on the Supreme Court for the first time in decades, Republican state lawmakers are seeking to test the court’s commitment to the Roe and Casey decisions with laws that ban abortions much earlier than is permitted by those rulings. 

The high court agreed in May to hear a blockbuster challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy. That dispute, which is set to be argued on Dec. 1, is expected to address central questions about the constitutionality of abortion and restrictions on it imposed by states.