The Biden administration on Monday asked the Supreme Court to block the Texas Heartbeat Act, accusing the state of "nullifying" the constitutional rights of its citizens.
The Texas law, also called S.B. 8, allows private citizens to sue abortion providers if they perform abortions once a fetal heartbeat is detectable. A 5-4 Court in September refused to block implementation of the law, rebuffing an emergency appeal from abortion clinics in Texas. The Justice Department says its claim is different because the federal government has a special duty to stop end-runs around the Constitution.
"The United States has a sovereign interest in ensuring the supremacy of federal law by preventing a state from suspending a constitutional right within its borders," the government's emergency appeal reads.
The Biden administration has taken the lead in the legal fight against the Texas Heartbeat Act. Apart from Monday's emergency appeal, Attorney General Merrick Garland has promised to step up prosecutions under a federal law that forbids injuring, intimidating, or interfering with patients or workers near abortion clinics. And President Joe Biden has promised a "whole-of-government" response to the law.
The Justice Department also suggested the Court should add the Texas case to its regular docket and resolve the case through normal process. The justices would hear arguments sometime in early 2022, with a decision to follow by summer.
Abortion services have practically ended in Texas since the law took effect. The overwhelming majority of abortions occur after six weeks, and clinics around the state have said in court filings that they are complying with the law.
Enforcement of a given statute is usually assigned to a distinct set of public officials. If said statute is blocked in the courts, a judge will issue an order prohibiting the relevant officials from enforcing it. Because private citizens, not public officials, enforce S.B. 8, abortion clinics have struggled to home in on a particular target and permanently enjoin the law.
The Justice Department argues it gets around that problem because the federal government can, "in appropriate circumstances," sue the states when they violate the constitutional rights of their citizens or interfere with the government's activities. Federal Bureau of Prisons officials, for example, are responsible for arranging abortions when pregnant inmates request them.
"Because the law has essentially eliminated abortion in Texas after six weeks of pregnancy, federal employees and contractors who are required to facilitate abortion care cannot do so within the states," the filing reads.
In general, the government says Texas's contrary arguments "amount to an assertion that the federal courts are powerless to halt the state's ongoing nullification of federal law. That proposition is as breathtaking as it is dangerous."
A coalition of 23 mostly blue states plus the District of Columbia filed an amicus brief in support of the Biden administration's emergency appeal. They said the Texas law had spillover effects in other states.
"Such cross-border harms are already occurring as a result of S.B. 8. In New Mexico, for example, an influx of patients from Texas has already strained provider resources and made it more difficult for New Mexico residents to receive timely care," the brief reads. "Similar impacts are affecting other states as well."
U.S. District Judge Robert Pitman sided with the administration and on Oct. 6 briefly blocked S.B. 8, but the Fifth U.S. Circuit Court of Appeals stayed his decision, prompting the government's emergency appeal to the Supreme Court.
S.B. 8 is thought to have stopped almost 5,000 abortions, according to Marjorie Dannenfelser of the pro-life Susan B. Anthony List.
Texas will file a response by Thursday at noon. The case is No. 21A85 U.S. v. Texas.