Texas officials on Thursday urged the U.S. Supreme Court to leave in place the nation’s strictest abortion law and reject calls by the Biden administration to intervene, Bloomberg reports.
State Attorney General Ken Paxton, in court papers filed Thursday, said President Joe Biden’s Justice Department lacked grounds to challenge the measure, which bans most abortions past six weeks after conception by permitting lawsuits against abortion providers and anyone who “aids or abets” in the procedures.
DOJ argued the law is “clearly unconstitutional” because it bans abortions at roughly six weeks, long before a fetus can survive outside the womb. The Supreme Court’s major abortion rulings make clear that states can regulate but not prohibit abortions before the point of fetal viability.
Texas defended an order by a three-judge panel of the 5th U.S. Circuit Court of Appeals that allowed the abortion law to go back into effect after a lower-court judge put it on hold.
“In sum, far from being demonstrably wrong, the Fifth Circuit’s conclusion that Texas is likely to prevail was entirely right,” the state wrote to the Supreme Court.
“The Court should deny the emergency application to vacate the Fifth Circuit’s stay pending appeal. The Court may also construe this response as a conditional cross-petition for certiorari on the question whether to revisit Roe [v. Wade] and [Planned Parenthood v.] Casey,” the court papers concluded.
The DOJ on Monday said the state is trying unconstitutionally to avoid judicial review with an unusual mechanism that puts enforcement in the hands of private parties.
A federal appeals court last week let the law go back into effect after a trial judge ruled the measure unconstitutional and blocked it for two days, Bloomberg reported.
The DOJ also asked the Supreme Court to hear arguments and issue a definitive ruling, rather than just an interim order. However, that would require the justices to bypass the appeals court, which has not made a final ruling.
Abortion providers have filed a similar request in a separate case, Bloomberg said.
There is no deadline for the Supreme Court to rule.
The Texas law took effect on Sept. 1 after the Supreme Court voted 5-4 to allow it to proceed. The court said clinics and doctors “raised serious questions regarding the constitutionality” of the measure but hadn’t overcome procedural obstacles stemming from the unusual enforcement stipulation.
Texas clinics have said abortions are down by about 80% since the law took effect.
The Supreme Court will hear arguments in December on a Mississippi appeal that asks the court to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortions nationwide.
The Associated Press contributed to this story.