WASHINGTON – The Texas attorney general on Thursday urged the Supreme Court to keep the state’s restrictive abortion law in effect, saying the federal government was not entitled to challenge it.
If the judges are inclined to hear the Justice Department’s request to block the law while legal challenges are pending, the state attorney general, Ken Paxton, wrote, they should use the case to try Roe v. Overrule Wade and abolish the constitutional right to abortion.
State law, in force since September 1, prohibits most abortions after six weeks and makes no exceptions for pregnancies due to rape or incest. Abortion clinics in Texas have largely stopped performing the procedure, requiring women seeking an abortion to travel out of the state.
The law, known as Senate Law 8, should evade review by a federal court. It banned state officials from enforcing the law and ordered private individuals to sue anyone who performed or assisted in an abortion in any way, including advice, financial assistance, or a trip to the clinic.
Successful plaintiffs are entitled to a minimum of $ 10,000 in damages and payment of their legal fees. The defendants will have to pay their own legal fees whether they win or lose.
Mr. Paxton wrote that the structure of the law had tied the hands of the judges.
“Basically, the federal government complains that it is difficult to command SB 8 effectively,” wrote Mr Paxton. “But it is not necessary for a state to write its laws in such a way that they can be easily enforced.”
It would be dangerous, he added, to allow the federal government to challenge state laws it objected to. “The United States lawsuit against Texas is extraordinary in scope and consequences, and has ramifications for precedents that have been in place for much longer than any right to abortion has been recognized,” he wrote.
Mr Paxton denied the Justice Department’s allegations that state law ran counter to Roe v. Wade and Planned Parenthood v. Casey, decisions in which the court said the constitution forbids states to ban abortions before the fetus is viable, or around 10 p.m. to midnight weeks.
“Merely creating liability for some abortions is not a prohibition,” Paxton wrote. The only reason many women in Texas cannot have abortions, he wrote, “is because abortion providers choose not to have abortions because they do not want to sue their liability in a state court under a law they believe is unconstitutional . “
After devoting most of his letter to the procedural arguments of why the Justice Department was unable to block the law, Paxton targeted the leading precedents and asked the court to overturn them if it decides to cancel the Department’s motion to consider.
“Correctly understood, the Constitution does not protect the right to cancel voting,” he wrote, adding, “If it becomes legitimate, the Court should overturn Roe and Casey.”
Last month, the Supreme Court, in a bitterly divided 5-to-4 decision, rejected an urgency motion from abortion providers in Texas to block the law while providers’ legal challenge continued. In an unsigned statement in this separate lawsuit, the majority cited “complex and novel” procedural obstacles to the law’s blocking and stressed that it did not judge the constitutionality of the law.
The majority wrote that their verdict “in no way restricts any other procedural challenge to Texas law, including in Texas courts.” Officials in Texas have said vendors can challenge the law by violating it, suing, and invoking the unconstitutionality of the law as part of their defense.
Chief Justice John G. Roberts Jr. joined the three more liberal members of the court in dissenting opinion.
The Ministry of Justice then filed its own lawsuit against the law, which is not subject to the procedural obstacles of the providers.
On October 6, Justice Robert L. Pitman of the Austin District Court ruled on behalf of the federal government and issued an injunction prohibiting the state, its officials, and individuals acting in concert with them from enforcing the law.
“It is up to them that other courts find a way to avoid this conclusion,” he wrote. “This court will not punish this insulting deprivation of such an important right for a day.”
An injunction is an appropriate response, wrote Judge Pitman, to a law that was both constitutional and designed to avoid judicial review.
Understand the Texas Abortion Act
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The citizens, not the state, will enforce the law. The law effectively represents ordinary citizens – including those outside of Texas – and allows them to sue clinics and others who violate the law. It will give them at least $ 10,000 per illegal abortion if they are successful.
“Aware that it would be blatantly unconstitutional to deprive its citizens of this right through direct government action,” he wrote, “the state has developed an unprecedented and transparent legal system to do just that.”
A divided, three-judge jury from the New Orleans Fifth District Court of Appeals suspended Judge Pitman’s verdict and restored the law. The Justice Department then filed a motion with the Supreme Court to lift the suspension.
In their separate lawsuit, after losing a first round in the Supreme Court, abortion providers filed a new motion last month urging judges to swiftly hear their dispute and bypass the appeals court through a trial called ” certiorari before the judgment ”.
This practice is seldom used, typically during national crises such as the seizure of the steel industry by President Harry S. Truman and President Richard M. Nixon’s refusal to turn over tapes to a special prosecutor.
The vendors said the court should use the process to determine what they think is a pressing question: “Whether a state can shield a law that prohibits the exercise of a constitutional right from federal review by exposing it to the public delegates enforcement authority? this prohibition through civil actions. “
In a second filing on Thursday, Mr Paxton urged the judges to reject the vendors’ request for expedited handling of their dispute. “This case does not deserve to be included in the small number of cases in which this court took the extraordinary step of granting Certiorari prior to the judgment,” he wrote.
In December, the Supreme Court will hear arguments contesting a Mississippi law that bans most abortions after 15 weeks. The case is a direct challenge by Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.