Biden administration to ask Supreme Court to stop enforcement of Texas’ near-total abortion ban

The Supreme Court in Washington on Sept. 21, 2021.

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The Biden administration will ask the U.S. Supreme Court to stop enforcement of Texas’ near-total abortion ban, according to a Friday statement from a U.S. Department of Justice spokesperson.

Courts have pingponged back and forth on the law’s enforceability over several weeks. The Justice Department’s move comes after a panel of federal appellate judges ordered late Thursday that the ban will remain in place while its constitutionality is decided.

The law, commonly known as Senate Bill 8, bans abortions as early as six weeks into a pregnancy, before many know they are pregnant. Because of how it was written, SB 8 has been able to largely flout the constitutional right to have an abortion before fetal viability.

Under the law, enforcement of the new restrictions is left to private citizens instead of state officials by allowing anyone to file lawsuits against people who perform or assist someone in getting an abortion. People or groups that are successfully sued can face penalties of at least $10,000.

In addition to their order Thursday leaving the ban in place, the three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law. Arguments in that case are expected to start in December.

The 5th Circuit’s decision followed a U.S. district judge’s ruling that briefly blocked the law’s enforcement last week.

“We are confident Texas will ultimately defeat these attacks on our life-saving efforts,” said Kim Schwartz, communications director for the anti-abortion organization Texas Right to Life, in a statement late Thursday.

After the appellate court’s decision last night, some abortion providers spoke out against it.

“The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law’s enforcement in a 5-4 vote.

Abortion advocates remain unsure of what the Supreme Court will do and if it will ultimately uphold the precedent of Roe v. Wade’s landmark decision in a case out of Mississippi that the court will begin hearing Dec. 1.