The Justice Department asked a federal judge late Tuesday to issue an order that would prevent Texas from enacting a law that prohibits nearly all abortions, ratcheting up a fight between the Biden administration and the state’s Republican leaders.
The Justice Department argued in its emergency motion that the state adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights,” reiterating an argument the department made last week when it sued Texas to prohibit enforcement of the contentious new legislation.
“It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” the department said in the lawsuit. “But Texas has done just that.”
As such, the department asked Judge Robert L. Pitman of the Western District of Texas to issue a temporary restraining order or a preliminary injunction that would prevent enforcement of the law.
“This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States,” the Justice Department said in its brief.
Representatives for Gov. Greg Abbott of Texas, a Republican, did not immediately respond to an e-mail seeking comment.
The Justice Department’s filing is the latest salvo in the Biden administration’s fight to stop Texas from enacting a law that prohibits most abortions after about six weeks of pregnancy, often before many women are aware they are pregnant. There is no heart at this stage of development, only electrical activity in developing cells. The law makes no exception for pregnancies resulting from rape or incest.
The motion comes two weeks after the Supreme Court, in a 5-4 decision, declined to block the Texas legislation. The majority stressed that it was not ruling on the law’s constitutionality and did not intend to limit “procedurally proper challenges” to it.
At the centre of the legal debate over the law is the mechanism that essentially deputizes private citizens, rather than the state’s executive branch, to enforce the new restrictions by suing anyone who performs an abortion or “aids and abets” a procedure. Plaintiffs who have no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win.
In its court filing, the Justice Department called this mechanism “an unprecedented scheme that seeks to deny women and providers the ability to challenge SB 8 in federal court.”
It said that in other cases where states had enacted laws that abridged reproductive rights to the extent that the Texas law does, courts had stopped those measures from taking effect.
Texas’ “attempt to shield a plainly unconstitutional law from review cannot stand,” the department said in its motion.
The Supreme Court did not rule on whether Senate Bill 8 was constitutional when it refused to block the law. The Justice Department has placed its constitutionality at the heart of the lawsuit, which could force the court to consider new factors and possibly come to a different decision if it hears the case.
Opponents and supporters of the Texas law recognize that it is an enormous shift in the nation’s battle over abortion, which has long rested on whether the Supreme Court will overturn Roe v. Wade, the landmark 1973 decision that granted women the constitutional right to the procedure.
The Texas law essentially allows a state to all but ban abortions before a legal test of that watershed case. If the law is not stopped by the courts, other Republican-led state legislatures could use it as a blueprint for their own restrictions.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.