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Department of Justice asks Supreme Court to stop Texas Heartbeat Law

by | Oct 19, 2021

By Dave Andrusko

The Supreme Court agreed Monday afternoon to consider expediting the challenge of Texas abortion providers to Senate Bill 8 even before the Fifth Circuit considers the merits of the law. Such a move in highly unusual.

“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,” Adam Liptak reported for the New York Times.

“The Supreme Court is already scheduled to hear another major abortion case, involving a Mississippi law, in December.”

The justices gave Texas until Thursday to respond to the petition “asking that the case be fast-tracked,” according to the Texas Tribune.

The move came just hours after the Biden Administration’s Department of Justice (DOJ), in a separate challenge, asked the High Court “to halt the near-total abortion ban while the U.S. Justice Department’s legal challenge to the new restrictions goes through the courts,” Allyson Waller and James Pollard reported. With the DOJ and abortion providers attacking the “Texas Heartbeat Law” on separate tracks, it raises the possibility that both appeals will be on the Supreme Court docket as soon as next week.

Last month, without ruling on the law’s constitutionality, the court allowed the law to go into effect.

Josh Blackmun, a law professor at South Texas College of Law in Houston, told the Texas Tribune that the Department of Justice and abortion providers “essentially [are] making different arguments.” The DOJ focuses more on “suing the [state] government on behalf of the people of Texas” while the abortion providers’ lawsuit “focuses on how they’re being particularly hindered by the law,” he explained.

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

The brief added, “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.”

Meanwhile in less than two months, the justices will hear Dobbs v. Jackson Women’s Health Organization, a Mississippi law that bans the dismemberment of living unborn children after 15 weeks. The issue before the court is whether all bans on previable abortion are unconstitutional.

“Saying that a state’s interest becomes compelling at 15 weeks gestation is just as plausible as saying that it becomes compelling at viability,” said the response brief filed by Mississippi Attorney Lynn Fitch. Such “line-drawing” is by nature a legislative task.

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