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Biden administration to ask Supreme Court to block new Texas abortion law as challenges continue

This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas.

Texas Attorney General Ken Paxton and other supporters of the new restrictions hailed the latest federal appeals court ruling that allows enforcement to continue while the legal battle plays out.
supporters
File – In this July 9, 2013 file photo, opponents and supporters of an abortion bill hold signs near a news conference outside the Texas Capitol, in Austin, Texas. New abortion restrictions passed by the Texas Legislature are unconstitutional and will not take effect as scheduled on Tuesday, a federal judge has ruled. (AP Photo/Eric Gay, File)(Eric Gay – AP)

By BeLynn Hollers

The Justice Department revealed Friday it plans to ask the U.S. Supreme Court to block enforcement of Texas’ abortion ban after a federal appeals court again allowed enforcement to continue while the case works it way through legal proceedings.

As President Joe Biden’s administration and other opponents of Texas’ new abortion law vowed to remain vigilant in their fight Friday, proponents hailed the latest court ruling.

Texas Attorney General Ken Paxton expressed confidence on Twitter after Thursday night’s ruling by saying, “The 5th Circuit has ruled on our side — a testament that we are on the right side of the law and life. I’ll continue to fight back against the Biden Administration’s lawless overreach.”

In a radio show on WBAP (820 AM) Friday morning, Paxton said the state law “was passed by our duly elected representatives, the way it’s supposed to work, it’s always supposed to work that way. And obviously this saves about 150 babies a day.”

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Late Thursday evening, the 5th U.S. Circuit Court of Appeals denied the Department of Justice request to immediately halt Senate Bill 8, also known as the “Heartbeat Act.” The law, enacted on Sept. 1, bans abortions after fetal cardiac activity is detected, which is approximately six weeks into a pregnancy.

SB 8 has a unique enforcement mechanism in which those who “aid or abet” people seeking abortion after six weeks of pregnancy can be sued by private citizens of any state. Those obtaining the abortion cannot be sued. Anyone who brings a successful lawsuit can receive damages of at least $10,000.

The new decision by the federal court is the third time the court has allowed the law to remain in effect since its enactment, which some advocates are saying has prevented hundreds of abortions since Sept. 1.

Those opposing abortion say the new decision by the 5th Circuit is not the end, and they hope to take it all the way to the U.S. Supreme Court. Abortion providers were denied their emergency motions in September to halt the law in a 5-4 decision, with Chief Justice John Roberts dissenting.

“We are excited to continue saving hundreds of lives through the Texas Heartbeat Act. However, the battle is not finished. We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will ultimately defeat these attacks on our life-saving efforts,” said Texas Right to Life Director of Media and Communication Kimberlyn Schwartz.

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Schwartz’s group has vowed to take anyone who violates SB 8 to court. Texas Right to Life created a tip line website to report those “aiding or abetting” abortions, though the organization says it is still working on reinstating it after it was dropped by its website host GoDaddy.com in September.

Amy Hagstrom Miller, president & CEO of abortion provider Whole Woman’s Health, has unsuccessfully tried to overturn the law in court and declared, “This injustice must stop.”

“We are unwavering in our commitment to provide compassionate, high-quality abortion care, and we are heartbroken that the 5th Circuit is doing everything in its power to stand in our way. It’s been 45 days since SB 8 took effect and we continue to be forced to turn away nearly all the patients who through our doors — patients we care deeply about and who deserve access to abortion care in their communities. The emotional toll for our staff and providers is matched only by the anguish our patients face when they are denied abortion care,” she said in a statement to The Dallas Morning News.

Since the law was enacted, many women have crossed state lines to obtain abortions.

Progress Texas advocacy director Diana Gómez says Congress must act in the wake of the 5th Circuit’s decision.

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“Congress must step in and address threats to abortion access in Texas and across the country through federal legislation. We need our government to guarantee access to a full range of reproductive care, and that includes abortion care. Meanwhile, abortion funds, clinics, and other on-the-ground organizations are working to ensure that Texans who need abortions can still get them. We will continue to support our communities and fight to defend abortion access for all, no matter what the courts decide,” she said in a statement.

Legal landscape ahead

Thursday’s decision by the 5th Circuit says that both the Whole Woman’s Health and the DOJ’s case will be argued at the same time. The ruling also says that the Texas law stays on the books while arguments are made in the court.

“So, in total yesterday there was some room for disagreement about whether or not, the Texas law would stay in effect until the 5th Circuit issued its opinion, but now we don’t have any doubt about that and we know that things are gonna stay as they have been for the last several weeks, until the 5th Circuit hears the case,” said David Coale, an appellate lawyer in Texas and partner at Lynn Pinker Hurst & Schwegmann.

The DOJ plans to ask the Supreme Court for a stay that would halt the law until the case is decided in the 5th Circuit.

In the meantime, the Supreme Court is to hear a case from Mississippi that challenges Roe vs. Wade on Dec. 1. If justices vote to overturn Roe, which stemmed from Dallas County, then these cases will become moot, Coale explained.

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Many opponents to the Texas abortion ban have suggested that it’s time for the United States Congress to codify a legal right to abortion into federal law. Which Coale said might have the adverse effect of overturning Roe, essentially making the state’s case moot.

“What the 5th Circuit would do if Roe was overruled, the Circuit would have to do the same thing in reverse and say, ‘Wait a minute, why doesn’t the U.S. automatically win this case?’ ” Coale said.

On Sept. 24 the U.S. House approved a bill called the “Women’s Protection Act” which aims to put Roe vs. Wade protections into federal law and cement women’s legal right to an abortion.

The Democratic majority approved the bill 218-211, moving the bill to the Senate, where passage is unlikely in the evenly divided Senate, where Democrats would need the support of at least 10 Republicans to succeed. The GOP is overwhelmingly against the proposal.

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