Texas AG Urges Supreme Court to Leave Anti-Abortion Law Intact

Members of the Supreme Court pose for a group photograph at the Supreme Court in Washington on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett. Erin Schaff/Pool/Getty Images

Texas Attorney General Ken Paxton has filed court papers with the Supreme Court, asking the nine justices to deny an attempt to rescind the state’s recent ban on abortions after six weeks.

“The heartbeat provisions in SB 8 reasonably further Texas’s interest in protecting unborn life, which exists from the outset of pregnancy” and further doesn’t “violate the Fourteenth Amendment,” Paxton wrote (pdf) in a submission to the court on Oct. 21, referring to Senate Bill 8.

On Oct. 18, the Justice Department’s lawyers suggested that the Supreme Court could leapfrog over lower courts that are considering arguments on the law and make its own decision.

But if the Supreme Court takes up a legal challenge recently filed by the Biden administration, the justices could move to overturn the 1973 landmark Roe v. Wade decision that essentially legalized the procedure nationwide. Paxton made the court ruling in response to the Department of Justice’s request to the Supreme Court to quickly block the state law while separate litigation over its legality is considered.

“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton wrote, saying that the law protects “Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”

Previously, the Supreme Court voted 5–4 to allow the Texas law to be enforced in early September in a separate challenge that was filed by pro-abortion groups and providers. Chief Justice John Roberts joined Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in the dissent.

Texas Attorney General Ken Paxton speaks during the launch of an antitrust investigation into large tech companies outside of the U.S. Supreme Court in Washington on Sept. 9, 2019. Mandel Ngan/AFP via Getty Images

In a key difference from other anti-abortion laws, Texas’s SB 8 grants private citizens—not the state of Texas—the ability to enforce it by enabling them to sue anyone who assists a woman in obtaining an abortion after cardiac activity is detected in the unborn child. Roberts, in his dissent last month (pdf), wrote that he had concerns with how the law is enforced.

Referring to the law’s enforcement mechanism, Paxton on Oct. 21 argued that the Department of Justice lacks standing because it’s suing the state, noting that “Texas executive officials do not enforce SB 8.”

“There is therefore no state executive or judicial official who can be enjoined” to stop enforcing the law even if a temporary injunction is handed down, he wrote.

Earlier in October, Judge Robert Pitman of the U.S. District Court for the Western District of Texas temporarily blocked SB 8 and argued that its enforcement means “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”

“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,” wrote Pitman, an appointee of President Barack Obama.

However, the 5th U.S. Circuit Court of Appeals rejected Pitman’s ruling, meaning that the law can be enforced for now.

The Supreme Court also is slated to hear Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that bars most abortions after the 15th week of pregnancy.