The Biden administration on Monday asked the Supreme Court to intervene and suspend a Texas law that has banned most abortions there.
The Justice Department filed an emergency appeal that asks the justices to put the Texas on hold and to declare it unconstitutional.
The acting solicitor general said a district judge in Austin had properly suspended enforcement of the law and argued his decision should be put back in force.
On Thursday, the 5th Circuit by a 2-1 vote issued a one-paragraph order setting aside that ruling.
The administration’s appeal raises a significant question of legal procedure. At issue is whether the U.S. government can sue a state for violating the constitutional rights of its people.
On a broader level, the overriding question is whether the more conservative Supreme Court will protect the right to abortion even as it weighs whether to revise or repeal its precedents on the issue.
On Dec. 1, the court will hear arguments in a case from Mississippi, which adopted a 15-week limit on abortion.
Before acting on the Justice Department’s emergency request over the Texas law, the justices are likely to first ask for a response from the Texas attorney general. It would take the votes of five justices to suspend the Texas law.
They previously split 5-4 in early September when first refusing to prevent the Texas from taking effect.
The conservative majority said the case presents “complex and novel antecedent procedural questions.” Chief Justice John G. Roberts Jr., in dissent, said the court should have put the law on hold while judges weighed those questions.
The Roe vs. Wade decision of 1973 struck down another Texas law that had banned nearly all abortions. Ever since, the high court has held that states may not prohibit pregnant women from obtaining an abortion prior to the time the fetus is viable.
But that still-standing constitutional right to abortion has not prevented Texas from enforcing a new law that makes it illegal for doctors to perform abortions after about the sixth week of a pregnancy.
When abortion providers sued in August to block the Texas Heartbeat Act from taking effect, they ran into two procedural barriers. First, the state could not be sued directly for adopting an unconstitutional law because states have a “sovereign immunity” that shields them being sued in federal court by individuals—or so the Supreme Court said in 1890.
And second, Texas officials could be sued for enforcing the new law because they had no role in enforcing it. Instead, the novel law used a type of bounty-hunter provision. It authorized private individuals to step forward and sue those who participated in an illegal abortion and collect $10,000 or more for doing so.
That threat was enough to force most abortion providers to stop performing procedures after six weeks.
After the court declined to block the law, the Justice Department sued Texas, noting that the states are not shielded from lawsuits filed by the federal government. It sought a ruling that would declare the Texas law unconstitutional and suspend its enforcement.
“The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” Atty. Gen. Merrick Garland said in announcing the suit. “This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”
The suit went before U.S. District Judge Robert Pitman in Austin, an Obama appointee. And after hearing arguments from both sides, he issued a 113-page opinion on Oct. 6 that explained why the Texas abortion ban is unconstitutional and why the U.S. government had the authority to challenge it in court.
His order decision was set aside by the 5th Circuit.
“Supreme Court needs to step in and stop this madness,” said Nancy Northup, president of the Center for Reproductive Rights. “It’s unconscionable that the 5th Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas.”