Texas attorney general urges Supreme Court to allow controversial abortion law to remain in effect as challenges play out

By Ariane de Vogue, CNN Supreme Court Reporter

Texas Attorney General Ken Paxton urged the Supreme Court Thursday to allow Texas’ controversial law that bars most abortions after six weeks of pregnancy to remain in effect while legal challenges play out.

He also asked the justices to deny a request from the Biden administration to leapfrog over a federal appeals court and agree to hear oral arguments this term and decide for itself whether the law passes constitutional muster. Paxton said, however, if the court does agree to add the case to its docket, the justices should use it as a vehicle to overturn Roe v. Wade, the 1973 landmark decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.

“The heartbeat provisions in SB 8 reasonably further Texas’s interest in protecting unborn life, which exists from the outset of pregnancy,” Paxton wrote. He also said if the Supreme Court takes up the case it should overturn Roe and hold that SB 8 does not “violate the Fourteenth Amendment.”

In December, the justices are already scheduled to hear a separate dispute concerning a Mississippi law that bars abortion after 15 weeks. In that case, the state is also asking the court to overturn Roe.

The dispute places the justices back in the center of a firestorm created by the Texas law that bars abortions before most women even know they are pregnant. Back in September, they agreed to allow the law to go into effect, but split bitterly in a 5-4 order. This time, however, they will review concrete evidence about the law’s impact on the ground, which may sway some justices to change their votes. The court could issue an order as early as Thursday, but may wait for a reply from the government before acting.

Paxton’s brief comes in response to a request from the Biden administration as well as abortion providers in the state to block a law that the government calls “clearly unconstitutional.”

Acting Solicitor General Brian Fletcher told the justices in court papers filed earlier in the week that the law had “nullified” the court’s abortion precedents within the state’s borders. He said allowing it to remain in effect would “perpetuate the ongoing irreparable injury to thousands of Texas women who are being denied their constitutional rights.”

As the justices consider the law again, they will review the record detailing how the law has impacted women and clinics on the ground over the past six weeks.

In sworn declarations, abortion providers say that it has had a chilling effect because staff are “plagued by fear and instability,” and they “remain seriously concerned that even providing abortions in compliance with S.B. 8 will draw lawsuits from anti-abortion vigilantes or others seeking financial gain” under the law’s enforcement provision, which offers up to $10,000 in damages.

Providers in neighboring states said under oath that they have been overwhelmed with patients traveling from Texas seeking an abortion. When Judge Robert Pitman of the US District Court for the Western District of Texas temporarily blocked the law earlier this month, he said that from the moment it went into effect, “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”

And in a stark rebuke to the Supreme Court, Pitman wrote: “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of the offensive deprivation of such an important right.”

The 5th US Circuit Court of Appeals, however, has stayed Pitman’s ruling, meaning the law is in effect for now. It rejected the Justice Department’s petition to lift the stay last Thursday night. DOJ immediately told reporters it planned to appeal.

A key issue in the case is whether the federal government has the legal right or “standing” to bring the challenge at hand. The DOJ says it does, in part, because private individuals bringing suit are acting as agents of the state and the government has the power to protect the fundamental rights of its citizens.

Paxton, a Republican, says the federal government doesn’t have the right to step in because of the unique way the law was written that bars Texas from enforcing it. Instead, private individuals are able to bring suit against anyone they think might be helping a woman get an abortion.

In Thursday’s filing, Paxton says that the law does not violate the Constitution “either as it was originally ratified or under current doctrine”

“The idea that the Constitution requires States to permit a woman to abort her unborn child is unsupported by an constitutional text, history or tradition,” he said.

In Monday’s briefs, the Justice Department called Texas’ arguments “breathtaking” and “dangerous.”

“If Texas is right, States are free to use similar schemes to nullify other precedents or suspend other constitutional rights,” the DOJ said.

Shadow docket

Although it is very rare for the Supreme Court to take up a case before the appeals process in the lower courts has played out, they may be interested in actually holding arguments and reading extensive briefs before weighing in on the law again. In September, they considered the law on the court’s emergency docket — often referred to as the “shadow docket” — drawing criticism from those who felt like the justices acted on a significant issue without the benefit of full briefing on the matter.

On September 1, for example, when the court allowed the law to go forward, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, criticized the majority for acting “hastily” on an order “of great consequence.”

“The majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent and impossible to defend,” Kagan wrote.

Dissension at the Supreme Court as justices take their anger public

Justice Samuel Alito later that month gave an unusual speech rejecting criticism that the court had improperly handled some of the cases on its emergency docket. He said the recent criticism by the media and political actors was geared to suggest “that a dangerous cabal is deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view.”

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