Indiana leads 18-state amicus brief siding with Texas heartbeat abortion law

Indiana Attorney General Todd Rokita and 17 other states have filed an amicus brief before the 5th Circuit Court of Appeals in support of a controversial Texas abortion law that makes abortion illegal in that state after heartbeat activity is detected in an embryo.

Indiana is leading the 18-state brief filed Monday, joined by Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

The states are requesting the 5th Circuit to vacate the preliminary injunction against the Texas law known as Senate Bill 8, which virtually ended abortion in the nation’s second-largest state after six weeks of pregnancy.

“This case does not permit, much less require, the Court to address S.B. 8, but instead presents a question of considerable significance for federalism and the separation of powers —whether the U.S. Attorney General has inherent authority to challenge state laws as violative of individual constitutional rights even absent congressional authorization,” the amicus brief reads.

In December, the U.S. Supreme Court issued a ruling that allowed the controversial Texas abortion law to stand, but also allowed providers to sue over the law.

The Texas law – dubbed the “heartbeat law” – has been in effect since Sept. 1 when the Supreme Court declined to intervene, except for a 48-hour period in early October when the law was blocked in federal court by U.S. District Judge Robert Pitman.

The 5th Circuit Court of Appeals has already twice voted to allow enforcement of the Texas abortion ban.

The Indiana-led brief argues, among other things, that no constitutional provision authorizes the U.S. Attorney General to sue states for all perceived violations of individual rights. It also asserts that no constitutional or statutory provision authorizes the challenge to Texas’s abortion law.

“Under principles reaffirmed in Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021), the United States is not entitled to injunctive relief against Texas officials or unnamed private individuals who might bring suit under S.B. 8,” the brief states. “The only benefit it could obtain from this demand for equity is an advisory opinion about S.B. 8’s constitutionality — something federal courts may not give.”

“We will continue to protect the lives of the unborn and the health of women, especially against those who believe the individual states are incapable of passing our own laws to do so,” Rokita said in a Tuesday statement.

The case is United States of America v. State of Texas, 21-50949.

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