- The Washington Times
Monday, October 18, 2021

The Biden administration asked the Supreme Court Monday to block Texas’ law banning abortions after a fetal heartbeat is detected.

The Justice Department wants the high court to reverse the 5th U.S. Circuit Court of Appeals’ ruling last week granting Texas’ request to halt an injunction put into place by a district court judge this month.


“Women with sufficient means are being forced to travel to other states to obtain pre-viability abortion care — causing chaos and backlogs at clinics in other states, and delaying abortions by weeks,” the department said in its 41-page filing.

The Supreme Court asked for a response to the DOJ filing by noon Thursday. The court previously declined abortion providers’ request to block the state from enacting the law on Sept. 1, leaving the legislation in place while litigation against it continues in lower courts. In the 5-4 unsigned decision, the court cited procedural issues and noted that it was not ruling on whether the law is constitutional.

Now, the DOJ wants the justices to block the law until they hear oral arguments and decide whether it is constitutional.

The Texas law, known as Senate Bill 8, prohibits abortions after a fetal heartbeat is heard, which is typically around six to eight weeks. 

The Justice Department, however, argues Supreme Court precedent dating back decades allows women to have an abortion until a fetus is viable, which is usually around 24 to 28 weeks. 

“Texas has, in short, successfully nullified this court’s decisions within its borders,” the DOJ said. “But rather than forthrightly defending its law and asking this court to revisit its decisions, Texas took matters into its own hands by crafting an ‘unprecedented’ structure to thwart judicial review,” the department said. 

The DOJ claims Texas knew of the constitutional problems with the law, so it intentionally designed the legislation to make it harder to challenge in courts by allowing private citizens to enforce the law, rather than state officials.

“The question now is whether Texas’ nullification of this court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not,” the department wrote.

The Texas chapter of Planned Parenthood applauded the DOJ’s request in a statement on Monday.

“We are grateful for this action and hopeful this time the court will stop the law,” the healthcare provider said.

The Washington Times sent a request for comment to Texas Attorney General Ken Paxton on Monday.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

• Emily Zantow can be reached at ezantow@washingtontimes.com.


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