Texas urges Supreme Court to leave 6-week abortion ban intact

Texas' attorney general on Thursday urged the Supreme Court to deny efforts to upend the state’s 6-week abortion ban.

Texas’ request came in court filings submitted in two separate legal challenges to the state’s restrictive abortion law, S.B. 8, including by the Department of Justice (DOJ) and another by Texas abortion providers. 

The controversial law, which bans most abortions and makes no exceptions for rape or incest, has faced legal pushback both prior to and following its Sept. 1 effective date, when the conservative majority Supreme Court declined to block it. 

The court’s move came in a 5-4 vote that broke largely along familiar ideological lines, with the exception of Chief Justice John Roberts, who joined the court’s three more liberal justices in dissent.

The ruling drew nationwide furor and appeared to contribute to a sharp dropoff in the court’s approval rating and fuel the perception, held by a majority of the public, that the court bases its rulings more on politics than law. 

Since Texas’s six-week abortion ban kicked in last month, legal challenges by DOJ and Texas-based abortion providers have percolated back up to the justices. 

On Monday, DOJ, on behalf of the Biden administration, asked the Supreme Court to block the law while the administration's legal challenge proceeds in the lower courts.

Abortion rights advocates argue Texas’s six-week ban clearly violates the constitutional right to abortion first recognized in the landmark 1973 decision in Roe v. Wade, which prohibits states from banning abortion before a fetus is viable, typically around 24 weeks of pregnancy.

"S.B. 8 is plainly unconstitutional under this Court’s precedents," DOJ's Monday filing stated. "Texas has not seriously argued otherwise."

The department announced it would seek the Supreme Court’s intervention last Friday just hours after a New Orleans-based federal appeals court ruled that the statute can remain in effect while it weighs the Biden administration's legal challenge.

Texas, in a response brief Thursday, emphasized the unique legislative design of S.B. 8, which employs a novel approach to enforcing the ban, giving private citizens the ability to file lawsuits that fetch at least $10,000 if successful.

When the Supreme Court previously allowed S.B. 8 to take effect, the 5-4 majority cited those procedural complexities as its primary reason for declining to intervene before lower courts had a chance to weigh in.

Texas told the justices Thursday that the federal government had “failed to learn the lessons” of the court’s Sept. 1 ruling.

Separately, Texas also urged the justices on Thursday to deny a formal request for appeal from the abortion providers who were rebuffed by the court in last month’s 5-4 ruling. 

These latest developments come as the court prepares to hear arguments Dec. 1 over Mississippi’s 15-week abortion ban, which poses a direct challenge to Roe v. Wade.

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