The Department of Justice Asks SCOTUS to Block Texas’ Near-Total Abortion Ban

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Posted: Oct 18, 2021 3:15 PM
The Department of Justice Asks SCOTUS to Block Texas’ Near-Total Abortion Ban

Source: AP Photo/Jose Luis Magana

On Monday, the Department of Justice (DOJ) asked the Supreme Court of the United States (SCOTUS) to temporarily block S.B. 8, Texas’ law that prohibits abortion after fetal heartbeat detection.

In the 41-page filing, the DOJ argues that the Fifth Circuit Court of Appeals should not have stayed U.S. District Judge Robert Pitman’s temporary injunction on S.B. 8. Furthermore, the filing mentions that fetal heartbeat detection occurs at roughly six weeks gestation, before many women know that they are pregnant.

“S.B. 8 defies those precedents [set by Roe v. Wade and Planned Parenthood v. Casey] by banning abortion long before viability -- indeed, before many women even realize they are pregnant,” the filing reads. “And by banning abortions after roughly six weeks of pregnancy, S.B. 8 has blocked the vast majority of all abortions that would otherwise have been performed in the State.”

As we reported, SCOTUS voted 5-4 to uphold S.B. 8 in September, shortly after the law took effect.This decision came after abortion providers and advocacy groups submitted a last-minute request asking the Court to strike down S.B. 8.

In response to SCOTUS’ decision, President Biden issued a statement promising a “whole-of-government” approach to fight S.B. 8. Days later, Attorney General Merrick Garland announced that the DOJ would sue Texas over S.B. 8.

This month, Pitman, an Obama appointee, issued a temporary injunction on S.B. 8 at the request of the Biden administration. Two days later, the Fifth Circuit Court of Appeals issued an administrative stay on S.B. 8, allowing the law to take effect again. Shortly after, the DOJ asked the Fifth Circuit to reconsider its decision. The Fifth Circuit did not reverse course. 

Last week, Rebecca reported that the DOJ intended to ask SCOTUS to overturn the Fifth Circuit’s stay of the District Court’s preliminary injunction. Seventeen state attorneys general filed an amicus brief siding with Texas, which I covered today.

In December, SCOTUS will hear the case of Dobbs v. Jackson Women’s Health Organization, which deals with the constitutionality of a 15-week abortion ban in Mississippi. Dobbs could overturn the precedents set by landmark cases Roe v. Wade and Planned Parenthood v. Casey.

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