The Biden administration is again urging the courts to step in and suspend a new Texas law that has banned most abortions since early September, as clinics hundreds of miles away remain busy with Texas patients making long journeys to get care.
The latest attempt Monday came three days after the 5th U.S. Circuit Court of Appeals reinstated the nation’s most restrictive abortion law after a brief 48-hour window last week in which Texas abortion providers — following a blistering ruling by a lower court — had rushed to bring in patients again.
The days ahead could now be key in determining the immediate future of the law known as Senate Bill 8, including whether there is another attempt to have the U.S. Supreme Court weigh in.
The law bans abortions in Texas once cardiac activity is detected, which is usually at six weeks and before some women even know they are pregnant. Although other GOP-controlled states have had similar early bans on abortions blocked by courts, the Texas law has proved durable because the state offloads enforcement solely onto private citizens, who can collect at least $10,000 in damages if they successfully sue abortion providers.
“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.
In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.
It is not clear when the 5th Circuit court will decide whether to extend what is currently a temporary order allowing the Texas law to stand. The court gave the Texas attorney’s general office until Thursday to respond to the Justice Department’s latest arguments.
Just as some Texas abortion providers last week quickly moved to once again perform abortions for patients past six weeks, the New Orleans-based appeals court set that order aside while it reviews the case. Planned Parenthood, the largest abortion provider in Texas, relayed to the court in a separate filing Monday night numerous stories of Texas women impacted by the law, including one patient who they said was only 12 years old.
“Oklahoma staff are working overtime to care for Texas patients denied abortions,” attorneys for Planned Parenthood told the court.
The Texas law is the nation’s biggest curb to abortion since the landmark Roe v. Wade decision nearly a half-century ago. A 1992 decision by the Supreme Court prevented states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy. But the Texas law has so far evaded being blocked by courts because of its novel enforcement scheme.
The Biden administration sued Texas over the law last month after it went into effect. Texas officials have defended the restrictions, which were signed by Republican Gov. Greg Abbott in May, saying they have no ability to stop private individuals from bringing lawsuits.