This is the second challenge to the law to reach the Supreme Court, though the court initially decided not to take up the first. A group of abortion providers led by Whole Woman’s Health sued the state court system, a private citizen, and a number of state agencies in July in an effort to stop the law but failed to convince the Supreme Court to step in. The court agreed to take up their case after a second attempt and set arguments for the same date as the lawsuit between Texas and the federal government. Their case is also continuing at the Fifth Circuit Court of Appeals and is set for argument the week of December 6.
Unlike that case, the Biden administration’s lawsuit is a direct case between the U.S. Department of Justice (DOJ) and the State of Texas.
That makes an important difference, the DOJ argues.
The Biden Administration’s Arguments
The Texas legislature passed the Heartbeat Act during the regular Texas legislature this year as Senate Bill (SB) 8. It authorizes citizens to sue anybody that performs or aids the abortion of an unborn child with a detectable pulse. The government cannot enforce SB 8, and the mother of the child cannot be sued.
Since the government cannot enforce the law, the Supreme Court denied the abortion providers’ request to stop it under the reasoning that an injunction against Texas courts and agencies would be improper and ineffective. The Fifth Circuit denied their request for the same reason, among others.
Although their case is separate from the Biden administration’s, these two orders strongly influenced the latest events in the administration’s lawsuit. When the Fifth Circuit batted down the DOJ’s attempt to stop enforcement of the law last week, the judges released a one-page order that simply said they would allow the law to stand for the same reasons described in these two orders.
In its application to the Supreme Court, the DOJ criticizes this reasoning, claiming that the Whole Woman’s Health case is materially different.
“[T]hose reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants,” the DOJ writes.
“This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States.”
The DOJ further claims that SB 8 is unconstitutional in more ways than one. In addition to the obvious alleged conflicts with abortion jurisprudence like Roe v. Wade and Planned Parenthood v. Casey, the Biden administration argues that SB 8 could keep the federal government from providing for certain abortions that would otherwise be legal, such as abortions for women in the prison system.
In response, Texas argues that the Constitution does not protect federal obligations to provide abortions, legal or not.
“Under binding case law, the federal government is not adverse to Texas merely because it thinks a Texas law is unconstitutional. And it lacks standing because it has not been injured by SB 8,” the state writes.
“The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion.”
Additionally, Texas maintains that SB 8’s civil enforcement structure still prevents the court from enjoining the government. Put another way, the state argues that no justiciable controversy exists between the DOJ and Texas since any injuries potentially caused by SB 8 come from private citizens filing lawsuits.
“Texas’s judicial branch is not adverse to the federal government merely because SB 8 lawsuits might be filed in Texas courts,” the state’s brief reads.
“The federal government’s argument is particularly troubling as it assumes that the entire judicial branch of a State is ‘adverse’ to a litigant who believes a law is unconstitutional. Adopting that view would create a massive expansion in constitutional litigation because anyone who disagrees with a law could sue the courts that might enforce it, forcing judges to take sides in constitutional disputes before the cases reach their courts.”
Furthermore, Texas said the testimonies of federal witnesses showed that SB 8 did not harm the federal government’s obligations to provide abortions. For example, an official from the Bureau of Prisons said she was aware of only four pregnant women in federal custody in Texas, none of whom had requested an abortion. In any case, the state claimed, Texas law presumes no authority over federal functions.
Roe v. Wade
While much of the case involves deep legal procedure, both the Biden administration and the State of Texas ultimately grapple with the validity of Roe v. Wade.
“This Court has long recognized that the Constitution protects a pregnant woman’s right ‘to have an abortion before viability and to obtain it without undue interference from the State,’ which until viability lacks ‘interests… strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure,’” the DOJ writes.
“Because SB 8 bans abortion several months before viability, it is unconstitutional without recourse to the undue-burden standard.”
Texas ultimately calls Roe poor jurisprudence, saying that the 14th Amendment does not guarantee a right to abortion.
“As has been expressed by multiple Justices, the idea that the Constitution requires States to permit a woman to abort her unborn child is unsupported by any constitutional text, history, or tradition,” the State writes.
“Properly understood, the Constitution does not protect a right to elective abortion, and any laws affecting abortion should be subject only to a rational-basis test. The heartbeat provisions in SB 8 reasonably further Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”
The group of abortion providers that unsuccessfully asked the Supreme Court to stop enforcement of SB 8 before it went into effect made a second petition to the court some weeks afterward. While their case proceeds at the Fifth Circuit, they also await potential appeal to the Supreme Court.
The court will hear oral arguments between the United States and Texas on November 1.
Here is a timeline of both cases’ paths to the Supreme Court.
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