WASHINGTON, D.C. — The Texas abortion law — banning abortions after six weeks of pregnancy — continues to have the Supreme Court’s attention more than a month after the nation’s high court ruled against blocking the law.
In the most recent development, the Justice Department filed a brief Oct. 18 asking the court to block enforcement of the state’s abortion law by reinstating a decision by a federal District Court judge in early October who called the law unconstitutional and temporarily blocked it.
The Oct. 18 brief, filed by Acting Solicitor General Brian Fletcher, asked the justices to treat this petition as one that would need full review by the court, not something to be determined in what has been described as the shadow docket for emergency requests.
He stressed the current Texas law has “successfully nullified” Supreme Court decisions about abortion “within its borders” since the court has previously ruled that states cannot restrict abortion before viability, or 24 weeks of pregnancy. In December, the court will take up a Mississippi ban on abortion after 15 weeks of pregnancy.
Hours after the Justice Department’s action, the Supreme Court announced it was considering taking up the abortion providers’ challenge to the state’s abortion law even before a decision on this case is made by a federal appellate court.
Texas, a defendant in the abortion providers’ suit, was given until noon Oct. 21 to respond to this petition. The state was given the same deadline to respond to the Justice Department’s challenge to the abortion law sent to Justice Samuel Alito, who takes emergency requests about rulings from the 5th U.S. Circuit Court of Appeals.
On Oct. 15, a three-judge panel of the 5th Circuit extended a previous ruling to allow the state law to remain in effect.
The federal government’s two challenges, questioning the constitutionality of the state abortion law from different angles, make it seem likely the Supreme Court could hear both challenges to the Texas abortion law in its current term.
In response to the Justice Department’s brief, Carol Tobias, president of National Right to Life Committee, said in an Oct. 18 statement that “the Biden administration’s unconditional support of the abortion industry shows just how far pro-abortion Democrats will go to curry favor with abortionists and abortion supporters.”
The Texas abortion law, signed by Republican Gov. Greg Abbott in May, became effective at midnight central time Sept. 1. It is one of the strictest abortion measures in the country, banning abortions in the state after a fetal heartbeat is detectable, which the law says is six weeks. The law has an exception for medical emergencies but not for rape or incest.
Currently, at least 12 other states have legislation banning abortions early in pregnancy, but these bans have been blocked by courts.
When the Supreme Court ruled against blocking the Texas abortion law Sept. 1, the Texas Catholic Conference, the public policy arm of the state’s Catholic bishops, said this action marked the first time since Roe v. Wade that the nation’s high court “has allowed a pro-life law to remain while litigation proceeds in lower courts.”