WASHINGTON — Just about 10 minutes before the filing deadline, Texas responded Thursday to the Justice Department’s emergency request for the U.S. Supreme Court to block the state’s six-week abortion ban while federal courts sort out its constitutionality, saying the federal government should butt out.
“Texas executive officials do not enforce [Senate Bill 8], and Texas’s judicial branch is not adverse to litigants who appear before it and who believe SB 8 is unconstitutional,” the state wrote. “As there is therefore no state executive or judicial official who can be enjoined, there is no Article III case or controversy in which a federal court may enter an injunction.”
This argument, which essentially contends that the Justice Department has no authority to sue Texas over its abortion law, known as Senate Bill 8, because it’s enforced by private citizens rather than the state, was expected from Texas Attorney General Ken Paxton, who is listed on the court document submitted by the state to the Supreme Court.
The Thursday deadline also applied to any person or group looking to submit a brief with additional information or insight regarding the case to the court, ten of which have been filed — eight in opposition to the Texas law, known as Senate Bill 8.
The States of Indiana, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia filed a brief Thursday before noon in support of Texas and against the Justice Department’s application.
On Monday, the Supreme Court signaled interest in providing a quick review of the state’s law, a move that comes a little over a month before the court is scheduled to hear oral arguments on a Mississippi abortion ban that kicks in at 15 weeks. Both cases are posing distinct legal challenges to Roe vs. Wade, the 1973 landmark that stemmed from a Dallas County case.
U.S. Attorney General Merrick Garland spearheaded the Biden administration’s challenge to SB 8, filing a lawsuit challenging the constitutionality of the ban in district court. After a federal district judge in Travis County sided with the Justice Department and blocked the law, the 5th Circuit Court of Appeals reversed that ruling, allowing the six-week ban to take effect again.
Legal scholars, medical organizations and even a group of former prosecutors and law enforcement leaders have filed briefs in support of the Justice Department’s application to have the Supreme Court block SB 8.
While the arguments vary, almost all contend the law is a clear violation of Roe and it’s taking a toll both on Texas women seeking an abortion and the neighboring states they’re forced to travel to to receive one.
Gov. Greg Abbott, Attorney General Paxton and other proponents of SB 8 are confident they’ll prevail, however, because the Supreme Court has already already allowed the law to stand once, when it declined to issue an injunction to block it back in September.
On Wednesday, the Human Coalition, a nonprofit committed to ending abortion, and the National Institute of Family and Life Advocates, a charitable organization and member of the National Pro-Life Religious Council, filed a brief “to equip this Court with the information it needs to assess whether women are actually irreparably harmed by SB 8 and enjoining the law is in the public interest.”
“[These groups] do not take a position regarding how the Court should rule on the Application for stay filed by the United States and opposed by the State of Texas,” their brief reads. “But [they] submit this brief to rebut the United States’ shocking claim that allowing SB 8 to remain in place will ‘irreparably harm’ women seeking abortion.”
Numerous other challenges are playing out in other courts as well. In addition to the Justice Department’s action, oral arguments for the lawsuit filed by Whole Woman’s Health, Planned Parenthood and other abortion providers — which in September was the emergency appeal to block SB 8 that the Supreme Court refused to grant — will be heard in December.
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