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Biden administration urges Supreme Court to suspend Texas abortion ban

David G. Savage, Los Angeles Times on

Published in Political News

WASHINGTON — The Biden administration on Monday asked the Supreme Court to intervene and suspend the Texas law that has banned most abortions there.

The Justice Department filed an emergency appeal that asks the justices to put the Texas on hold and to declare it unconstitutional.

The acting solicitor general said a district judge in Austin had properly suspended enforcement of the law and argued his decision should be put back in force.

On Thursday, the 5th Circuit by a 2-1 vote issued a one-paragraph order setting aside that ruling.

The administration’s appeal raises a significant question of legal procedure. At issue is whether the U.S. government can sue a state for violating the constitutional rights of its people.

On a broader level, the overriding question is whether the more conservative Supreme Court will protect the right to abortion even as it weighs whether to revise or repeal its precedents on the issue.

On Dec. 1, the court will hear arguments in a case from Mississippi, which adopted a 15-week limit on abortion.

Before acting on the Justice Department’s emergency request over the Texas law, the justices are likely to first ask for a response from the Texas attorney general. It would take the votes of five justices to suspend the Texas law.

 

They split 5-4 in early September and refused to prevent the Texas law from taking effect. It is also possible they would decide to review the unusual legal and constitutional issues raised by the Texas law.

The 1973 Roe v. Wade decision struck down a Texas law that banned nearly all abortions, and ever since then, the high court has held that states may not prohibit pregnant women from obtaining an abortion prior to the time the fetus is viable.

But that still-standing constitutional right to abortion has not prevented Texas from enforcing a new law that makes it illegal for doctors to perform abortions after about the sixth week of a pregnancy.

When abortion providers sued in August to block the Texas Heartbeat Act from taking effect, they ran into two procedural barriers. First, the state could not be sued directly for adopting an unconstitutional law because states have a “sovereign immunity” that shields them being sued in federal court by individuals — or so the Supreme Court said in 1890.

And second, Texas officials couldn't be sued for enforcing the new law because they had no role in enforcing it. Instead, the novel law used a type of bounty-hunter provision. It authorized private individuals to step forward and sue those who participated in an illegal abortion and collect $10,000 or more for doing so.

That threat was enough to force most abortion providers to stop performing procedures after six weeks.

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