The Biden administration urged a federal appeals court to reinstate a judge’s order blocking Texas’s new ban on most abortions, arguing the strictest such law in the nation flouts more than 200 years of precedent.
The law barring most abortions after about six weeks of pregnancy, before many women know they’re pregnant, far exceeds the power granted to state legislatures under the Constitution, the Justice Department said late Monday in a filing with the U.S. Court of Appeals in New Orleans.
“Texas defends its novel scheme by invoking state sovereignty,” the Justice Department said. “But state sovereignty does not encompass the authority to defy the Federal Constitution.”
The U.S. is fighting to revive a temporary injunction that would block enforcement of the law while the case proceeds. The injunction was granted by a judge on Oct. 6 but then temporarily stayed by the appeals court two days later. Texas and the Biden administration are now fighting over whether the court should grant a longer-lasting stay pending appeal.
In arguing to deny the stay and revive the injunction, the Justice Department cited an 1810 Supreme Court ruling by one of the nation’s most influential chief justices, John Marshall, who said the Constitution “imposes limits to the legislatures of the several states, which none claim a right to pass.”
With its new law, Texas “flouts that principle by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions,” the Justice Department said.
“Recognizing that SB8 contravenes controlling Supreme Court precedent, Texas instead crafted the law to hinder judicial review,” the Justice Department said in Monday’s filing. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind.”
The Texas law, known as SB-8, has no exceptions for rape or incest. It was drafted to make it difficult to challenge in court by delegating enforcement from the state to individuals empowered to sue for $10,000 anyone who performs abortions or even helps by, for example, driving a woman to an abortion clinic.
Regional affiliates of Planned Parenthood on Monday night provided the appeals court with a filing describing how the law is already harming women and girls. Many are becoming desperate as they struggle with pregnancies they don’t have the finances or emotional strength to endure.
The filing describes one 16-year-old as unsure whether she can afford to travel out of state to get a legal abortion. The girl’s mother, who also became pregnant as a teen, “knows she is not ready to have a baby,” according to the filing.
Another woman described in the filing, already the mother of a kindergartner, became pregnant again just before she ended a relationship with her child’s “very abusive” father. She wants an abortion because she’s a single working mother receiving no child support who says there’s “no way that I could physically, mentally, emotionally go through that again.”
The office of Texas Attorney General Ken Paxton didn’t immediately respond to an after-hours request for comment on the federal government’s filing.
