The Biden administration asked the Supreme Court on Monday to do what the justices declined to do last month when asked by a group of Texas abortion providers: block the enforcement of a Texas law that imposes a near-total ban on abortions performed after the sixth week of pregnancy. In an emergency request by Acting Solicitor General Brian Fletcher, the Department of Justice told the court that by making “abortion effectively unavailable” after six weeks, “Texas has, in short, successfully nullified” the Supreme Court’s “decisions within its borders.”
The new request in United States v. Texas asks the justices to reinstate a decision of a federal district judge who declared the law unconstitutional and temporarily blocked it earlier this month. An appeals court quickly issued a stay of the district judge’s decision, prompting the federal government to seek emergency relief at the Supreme Court.
Rather than handle the request on the so-called shadow docket, Fletcher also suggested in his filing that the justices could treat the request as a petition for review, schedule full briefing and oral argument, and resolve the merits of the case without waiting for the litigation to conclude in the lower courts.
The Texas law, known as S.B. 8, is one of several early-stage abortion bans that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court held that the Constitution protects the right to have an abortion before a fetus can survive outside the womb. That benchmark, known as viability, occurs around 24 weeks of pregnancy, but S.B. 8 prohibits abortions after about six weeks of pregnancy – a time measured from the first day of the patient’s last menstrual period and before many people realize that they are pregnant. To make it more difficult to challenge the law in court, especially before it went into effect, the Texas law turns to private individuals, rather than government officials, to enforce the ban, deputizing them to bring lawsuits against anyone who either provides or “aids or abets” an abortion. The law also establishes an award of $10,000 for a successful lawsuit.
Abortion providers went to federal court in Texas in July, where they argued (among other things) that the law violates their patients’ constitutional right to end a pregnancy before viability. The proceedings quickly made their way to the Supreme Court, which on Sept. 1 – shortly after the law had already gone into effect – denied the providers’ request to block enforcement of the law. By a vote of 5-4, in a one-paragraph order issued late at night, the court said that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But the majority nonetheless refused to stop the law from going into effect because, the court wrote, it wasn’t clear whether the state officials whom the abortion providers had named as defendants in the case “can or will seek to enforce the Texas law” in a way that would allow the court to get involved in the dispute at that stage.
Chief Justice John Roberts dissented from the court’s order, calling the Texas scheme “unprecedented.” In an opinion joined by Justices Stephen Breyer and Elena Kagan, he argued that by ceding authority to enforce the law to private citizens, the law “insulate[s] the State from responsibility.” Each of the court’s three liberal justices – Breyer, Kagan and Justice Sonia Sotomayor – also penned their own dissents, with Sotomayor describing the law as “flagrantly unconstitutional.”
The majority’s refusal to intervene on an emergency basis sent the case back to the U.S. Court of Appeals for the 5th Circuit, which is scheduled to hear oral argument in early December. In the meantime, the providers returned to the Supreme Court on Sept. 23, asking the justices to take up the case on its merits docket and definitively resolve the legality of Texas’ unusual enforcement scheme without waiting for a final ruling from the 5th Circuit — a maneuver known as a petition for certiorari before judgment. On Monday afternoon, the court granted the providers’ request to fast-track the justices’ consideration of their petition, directing the defendants in the case to file their response to the petition by noon on Thursday, Oct. 21.
Separately, the Biden administration went to federal court in Texas in September, seeking to block the enforcement of the ban. In an emergency motion seeking a preliminary injunction, filed on Sept. 15, the Department of Justice emphasized that the only way abortion providers can challenge the law’s constitutionality is by first violating it, potentially subjecting themselves to substantial penalties. Therefore, the government concluded, the law is an “effective blockade” of constitutional rights and an “effort to circumvent the supremacy of the U.S. Constitution itself.” The law also “subverts the mechanisms Congress designed” to guarantee that plaintiffs can block unconstitutional laws before they are enforced, the government added, and interferes with (among other things) the federal government’s obligations to provide access to abortions – for example, for federal inmates and some members of the military. Because the law is “an extraordinary and unprecedented attempt to evade a State’s obligation to respect” the Constitution “through the mechanisms established by Congress,” the government concluded, the United States has the right to sue to block the law’s enforcement.
In a 113-page ruling on Oct. 6, U.S. District Judge Robert Pitman granted the administration’s request to put the law on hold. Observing that the right to obtain an abortion before the fetus becomes viable is “well established,” Pitman wrote that Texas was “[f]ully aware that depriving its citizens of this right” directly would be “flagrantly unconstitutional” but nonetheless created “an unprecedented and transparent statutory scheme to do just that.” Texas, Pitman continued, intentionally drafted its abortion ban “with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” But “there can be no question,” Pitman concluded, that the law “operates as a ban on pre-viability abortions in contravention of Roe v. Wade.”
Texas appealed Pitman’s order to the 5th Circuit, which on Oct. 8 agreed to temporarily put the order on hold, thereby reinstating the abortion ban. Six days later, on Oct. 14, the court of appeals issued a new, one-paragraph order that kept the ban in place and fast-tracked the state’s appeal: The court of appeals ordered the court’s clerk to set the case for oral argument before the same three-judge panel that will hear the abortion providers’ appeal in early December.
In a 39-page filing on Monday, Fletcher asked the justices to wipe away the 5th Circuit’s stay of Pitman’s order. That relief would reinstate Pitman’s decision blocking the law while the litigation continues. Fletcher posed the question to the Supreme Court as “whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit.” The answer is no, Fletcher continued, because the Texas law is “clearly unconstitutional” and because the United States has the power to ask the court to block the enforcement of the law “to protect its sovereign interests – including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.”
Fletcher emphasized that the 5th Circuit did not dispute that allowing the law to remain in effect would injure both the interests of the United States and “thousands of Texas women who are being denied their constitutional rights.” Instead, Fletcher noted, the 5th Circuit’s stay of Pitman’s ruling simply pointed to its decisions in the earlier challenge to S.B. 8., filed against individual state officials because the abortion providers could not sue the state of Texas. “But those reasons,” Fletcher wrote, “do not apply to this very different suit” brought by the United States, which can sue Texas. Therefore, Fletcher concluded, the justices should vacate the 5th Circuit’s stay and allow Pitman’s decision blocking enforcement of the law to go back into effect. Moreover, Fletcher suggested, the court could treat the government’s emergency filing as a petition for certiorari before judgment, grant review, and have briefing and oral argument in the case this term.
The Biden administration’s request went to Justice Samuel Alito, who fields emergency requests from the 5th Circuit. Alito acted quickly, ordering the state to file its response by noon on Thursday, Oct. 21, and — with the order later on Monday directing a response in the providers’ case — setting up the possibility that the court could act on both S.B. 8 cases at the same time.
This post is also published on SCOTUSblog.