Texas Urges Supreme Court to Leave Its Restrictive Abortion Law in Place

The Biden administration had asked the court to block the law. State officials called the request procedurally flawed, saying the court was powerless to grant it.

WASHINGTON — Texas’ attorney general urged the Supreme Court on Thursday to leave the state’s restrictive abortion law in place, saying that the federal government was not entitled to challenge it.

If the justices are nonetheless inclined to hear the Justice Department’s request that they block the law while legal challenges proceed, wrote Ken Paxton, the state’s attorney general, they should use the case to overrule Roe v. Wade and to eliminate the constitutional right to abortion.

The state law, which has been in effect since Sept. 1, bans most abortions after six weeks and makes no exceptions for pregnancies resulting from rape or incest. Abortion clinics in Texas have largely stopped performing the procedure, requiring women seeking abortions to travel out of state.

The law, known as Senate Bill 8, was intended to evade review in federal court. It barred state officials from enforcing the law and deputized private individuals to sue anyone who performed an abortion or assisted with it in any way, including by providing counseling, financial assistance or a ride to the clinic.

Successful plaintiffs are entitled to damages of at least $10,000 and payment of their legal fees. Defendants must bear their own legal fees whether they win or lose.

Mr. Paxton wrote that the law’s structure tied the justices’ hands.

“At bottom, the federal government’s complaint is that S.B. 8 is difficult to effectively enjoin,” Mr. Paxton wrote. “But there is no requirement that a state write its laws such that they can be easily enjoined.”

It would be a dangerous thing, he added, to allow the federal government to challenge state laws to which it objected. “The United States’ lawsuit against Texas is extraordinary in its breadth and consequence, having an impact on precedents that have existed far longer than any right to abortion has been recognized,” he wrote.

Mr. Paxton contested the Justice Department’s assertion that the state law was at odds with Roe v. Wade and Planned Parenthood v. Casey, decisions in which the court said that the Constitution forbids states from banning abortions before fetal viability, or around 22 to 24 weeks.

“Merely creating the potential for liability for some abortions is not a ban,” Mr. Paxton wrote. The only reason many women in Texas cannot obtain abortions, he wrote, “is that abortion providers choose not to provide them because they do not wish to litigate their liability in a state court under a statute they deem unconstitutional.”

After devoting most of his brief to procedural arguments about why the Justice Department lacked the ability to sue to block the law, Mr. Paxton took aim at the leading precedents, asking the court to overrule them if it decides to consider the department’s application.

“Properly understood, the Constitution does not protect a right to elective abortion,” he wrote, adding, “If it reaches the merits, the court should overturn Roe and Casey.”

Last month, in a bitterly divided 5-to-4 decision, the Supreme Court rejected an emergency request from abortion providers in Texas to block the law while the providers’ legal challenge moved forward. In an unsigned opinion in that separate lawsuit, the majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.

The majority wrote that its ruling “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” Officials in Texas have said that providers can challenge the law by violating it, getting sued and asserting the law’s unconstitutionality as part of their defense.

Chief Justice John G. Roberts Jr. joined the court’s three more liberal members in dissent.

The Justice Department then filed its own challenge to the law, one that it said was not subject to the procedural barriers the providers had faced.

On Oct. 6, Judge Robert L. Pitman of the Federal District Court in Austin ruled for the federal government, granting it a preliminary injunction forbidding the state, its officials and private individuals acting in concert with them from enforcing the law.

“That other courts may find a way to avoid this conclusion is theirs to decide,” he wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”

An injunction was an appropriate response, Judge Pitman wrote, to a law that both violated the Constitution and was drafted to evade judicial review.

Understand the Texas Abortion Law

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The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

“Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional,” he wrote, “the state contrived an unprecedented and transparent statutory scheme to do just that.”

A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, stayed Judge Pitman’s ruling, reinstating the law. The Justice Department then filed an application asking the Supreme Court to lift the stay.

In their separate suit, the abortion providers, after losing a first round in the Supreme Court, filed a new request last month, asking the justices to hear their challenge quickly, bypassing the appeals court, using a procedure called “certiorari before judgment.”

That procedure is rarely used, typically in cases involving national crises like President Harry S. Truman’s seizure of the steel industry and President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.

The providers said the court should use the procedure to decide what they said was a pressing question: “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohi­bition through civil actions.”

In a second filing on Thursday, Mr. Paxton urged the justices to turn down the providers’ request for expedited treatment of their challenge. “This case does not merit inclusion in the small number of cases where this court has taken the extraordinary step of granting certiorari before judgment,” he wrote.

In December, the Supreme Court will hear arguments in a challenge to a Mississippi law that bans most abortions after 15 weeks. The case is a direct challenge to Roe v. Wade, the 1973 decision that established a constitutional right to abortion.