Hannah Wolfe, left, protests against the right to abortion, while Laurie Arbeiter protests for the right to abortion in front of Wolfe in front of the US Supreme Court building in Washington, USA, on October 4, 2021.
Leah Millis | Reuters
Texas officials on Wednesday filed their case that the Supreme Court dismissed two appeals against a restrictive state law that bans most abortions as early as six weeks of gestation.
In a 93-page briefing, officials argued that both lawsuits were falsely filed against them because Texas law is being enforced by private individuals rather than the state government. “No official in the state executive actually enforces this [the law]”Wrote Texas,” which makes the injunction an inappropriate attempt to impose a law, not a person. “
But the Biden administration criticized this enforcement mechanism in its own lawsuit as a “shameless assault on the supremacy of federal law”, arguing that “if Texas is right, no decision by that court is certain”.
And a group of abortion rights vendors and advocates, in a separate brief, called on the Supreme Court to reject Texas’ “cynical strategy” in order to avoid judicial review.
Those filings came less than a week before the nine judges on both cases – Whole Woman’s Health v Jackson and United States v Texas – were due to hear oral arguments that were recently speeded up for briefing and reasoning.
The court had previously come under fire for refusing to rule on an urgent motion to block the law before it came into effect in September. The majority in that 5: 4 ruling included all three members of the bank appointed by former President Donald Trump, while presiding judge John Roberts sided with the court’s liberals.
But the judges later upheld an appeal to consider challenging the law, despite a lawsuit pending in a lower court. On Friday, the court tabled a timetable for the case and another from the Justice Department, with briefings by Wednesday, responses by Friday and arguments for Monday morning.
The law, SB 8, prohibits most abortions after the detection of a fetal heartbeat, which can occur as early as the sixth week of pregnancy. At this point, many women have not yet discovered that they are pregnant.
Critics say SB 8 violates Roe v. Wade, the 1973 Supreme Court ruling granting the right to abortion before the fetus is viable, which is generally around 24 weeks. Texas’ pleading does not specifically mention Roe, but argues that the law interfered with another case, Planned Parenthood v. Casey of 1992, which protects against states imposing an “undue burden” on access to abortion.
SB 8, signed by Republican Governor Greg Abbott in May, makes no exception for pregnancies resulting from rape or incest.
Rather than appointing state officials to enforce the six-week ban, SB 8 delegates that authority to private individuals who can sue anyone who “aids” or “instigates” an abortion for at least $ 10,000.
Because of this, both trials against the law suffer from an “inability to identify a suitable defendant,” argued Texas officials on their brief Wednesday.
However, lawyers for the Texas abortion providers argued that federal courts must be able to respond to claims against the “blatantly unconstitutional law”.
The law’s provisions “create a head-I-win-pay-you-lose regime, the obvious purpose of which is to deter and prevent access to federal and state courts,” the lawyers wrote.
The Justice Department argued that the “unprecedented structure” of SB 8 was designed to “thwart a judicial review”.
If it persisted, Texas’s legislative strategy would mean that “states must fail or even challenge precedents they disagree with,” the DOJ wrote in its letter. “They can simply prohibit the exercise of rights that prejudice them, refuse state enforcement, and empower the public to engage in harassing measures that threaten ruinous liability.”
The DOJ noted that “other states are already viewing SB 8 as a model”.