Texas officials have filed a legal brief with the Supreme Court urging it to allow the abortion ban to continue saving babies while the lawsuits Joe Biden and the abortion industry filed against it move forward.
Today is the 54th day the Texas abortion ban is saving babies from abortion, and as many as 5,000 babies could possibly have been saved from abortions so far.
Texas officials argue the Supreme Court can’t overturn the law and must block the request for a temporary injunction against it because they are not charged with enforcing the abortion ban under the private right of action provisions of the law allowing for private lawsuits to be filed against abortionists and those who assist in killing babies.
In a 93-page brief, the officials argued that since the Texas law is enforced by private citizens instead of the state government, both lawsuits were wrongly filed against them. “No state executive official actually enforces [the law],” Texas wrote, “making the injunction an improper attempt to enjoin a law rather than a person.”
But the Biden administration in its own court filing slammed that enforcement mechanism as a “brazen attack on the supremacy of federal law,” arguing that “if Texas is right, no decision of this Court is safe.”
And a group of abortion-rights providers and advocates in a separate brief urged the high court to reject Texas’s “cynical strategy” to avoid judicial review.
Last week, the Supreme Court today refused a request by Joe Biden and abortion businesses in Texas to block the Texas abortion ban and the nation’s highest court agreed to review the pro-abortion lawsuits against the abortion ban and set oral arguments for November 1.
The court, in its order, said it would consider the following questions: whether “the state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil action”; and can “the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”
Justice Sonia Sotomayor dissented and said the Texas abortion ban should be blocked while the lawsuit continues. She falsely called killing babies in abortions health care and made it appear that pregnant women are harmed if they can’t get abortions — even though abortion harms women in a myriad of ways and mothers who give birth experience more joy and less harm by keeping their baby.
“The promise of future adjudication offers cold comfort, however, for Texas women seeking abortion care, who are entitled to relief now,” she wrote. “These women will suffer personal harm from delaying their medical care, and as their pregnancies progress, they may even be unable to obtain abortion care altogether.”
The Supreme Court needs just 4 votes to agree to review a case but five votes to issues a ruling — meaning SCOTUS reached those two thresholds to both review as well as to decide to leave the Texas abortion ban in place. In a prior ruling on the Texas abortion companies’ request to block the ban, the Supreme Court ruled 5-4 to allow to to stay in place, with Chief Justice John Roberts and the court’s three liberals dissenting and saying it should be blocked.
The Texas pro-life group behind the ban celebrated the ruling.
“This is a great development for the Pro-Life movement because the law will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether these lawsuits are valid in the first place,” Texas Right to Life Director of Media and Communication Kimberlyn Schwartz told LifeNews.com.
Texas Attorney General Ken Paxton filed legal papers with the Supreme Court urging it uphold the state’s abortion ban and deny Joe Biden’s demand that SCOTUS block it.
In its argument, Paxton and his team of attorneys say the federal government has no legal standing in the case and no right to overturn the Texas law because it hasn’t suffered any injuries from it:
Federal courts are not “roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
The United States’ lawsuit against Texas is extraordinary in its breadth and consequence, having an impact on precedents that have existed far longer than any right to abortion has been recognized. Nevertheless, the federal government asks this Court to apply the “ad hoc nullification machine” that pushes aside any doctrine of constitutional law that stands in the way of abortion rights.
Specifically, it asks the Court to ignore (among other things) requirements of justiciability, standing, and a cognizable cause of action—all so that the Court can reach the merits of the government’s challenge to Texas’s Senate Bill 8 (SB 8). The Court should decline this request. Under binding case law, the federal government is not adverse to Texas merely because it thinks a Texas law is unconstitutional. And it lacks standing because it has not been injured by SB 8. The federal government cannot get an abortion, and the Constitution does not assign it any special role to protect any putative right to abortion.
The Supreme Court previously ruled that it would not block the ban when it considered a similar request from abortion businesses.
Texas Right to Life Director of Media and Communication Kimberlyn Schwartz told LifeNews she expects Biden to lose his request to block the ban: “We are excited to continue saving hundreds of lives through the Texas Heartbeat Act. However, the battle is not finished. We are confident Texas will ultimately defeat these attacks on our life-saving efforts.”
As LifeNews.com reported, the 5th Circuit Court of Appeals rejected Biden’s demand to block the ban. Previously, U.S. District Judge Robert Pitman, who was appointed by Barack Obama, sided with the Biden administration’s Justice Department, which sued the state, arguing Texas’ law was unconstitutional because it went against Roe v. Wade.
Then, the 5th Circuit rejected Biden’s demand, voting 2-1 to allow the ban to stay in place as the underlying lawsuit continues. That was the third time it has allowed the law to stay in effect, responding to various pro-abortion legal challenges.
Biden officials called the ban “plainly unconstitutional” even though no right to abortion exists in the Constitution.
“S.B. 8 is plainly unconstitutional under this Court’s precedents,” the DOJ’s filing reads. “Texas has not seriously argued otherwise.”
“Texas’s insistence that no party can bring a suit challenging S.B. 8 amounts to an assertion that the federal courts are powerless to halt the State’s ongoing nullification of federal law,” the DOJ wrote. “That proposition is as breathtaking as it is dangerous.”
Last month, in a legal challenge from abortion businesses, the Supreme Court voted 5-4 to not block the ban while the lawsuit continued. Texas has until Thursday to file its response to Biden’s legal papers.
In its previous ruling, the Supreme Court said the pro-abortion groups did not provide sufficient reasons to justify blocking the law.
“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue,” the majority wrote. “But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. … In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.”
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett made up the majority in the decision. The justices who dissented were Chief Justice John Roberts, Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor. Kagan, Breyer and Sotomayor also wrote separate dissents slamming the court for allowing Texas to restrict abortions.
If the Supreme Court decides to not block the ban, it will likely stay in place until December, when the 5th Circuit has scheduled oral arguments on Biden’s request to block it. That means thousands more unborn children will be saved from abortions, as many women decide to keep their baby instead of ending their child’s life. Meanwhile, pregnancy centers that provide actual help and support for pregnant women are also experiencing higher numbers of calls and visit and are saving more babies from abortion.
As soon as Judge Pitman issued his decision putting the ban on hold, Texas Attorney General Ken Paxton appealed.
“We disagree with the Court’s decision and have already taken steps to immediately appeal it to the Fifth Circuit Court of Appeals,” Paxton wrote on Twitter Thursday morning. “The sanctity of human life is, and will always be, a top priority for me.”
Typically, state governments enforce pro-life laws and, when the laws are challenged, judges can block the states from enforcing them in a preliminary injunction. However, the Texas law leaves enforcement up to individual people. So, judges are considering whether they can stop all private citizens from enforcing the law – especially without allowing private citizens the chance to defend themselves in court first.
Pitman’s order prohibited state court judges and court clerks from accepting lawsuits that the law allows. That made it so some abortion businesses continued killing babies in abortions while others worried they would still not be able to do so legally because the law, even if blocked, still allows lawsuits against anyone killing babies in abortions or assisting them.
Attorneys for Texas said Biden’s Department of Justice is being unfair by asking the court to block “absent third parties” from enforcing the law “without letting them be heard.”
The Texas law went into effect Sept. 1, prohibiting abortions once an unborn baby’s heartbeat is detectable, about six weeks of pregnancy. Thus far, the courts have refused to temporarily block the law, and as many as 3,000 unborn babies already have been spared from abortion.
On Friday, attorneys for the Department of Justice argued that the law is unconstitutional and the federal government has an interest in seeing it blocked.
Then, Judge Pitman issued the ruling they were hoping for and endorsed abortion in the process.
“The United States is substantially likely to succeed on the merits of its claims. It is substantially likely that S.B. 8 violates the Fourteenth Amendment,” the judge wrote. “From the moment S.B. 8 went into effect, 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 this offensive deprivation of such an important right.”
In comments to LifeNews.com, Texas Right to Life blasted the opinion:
The ruling is wildly broad, preventing Texas state officials from enforcing the law, including the shocking order to block every Texas judge and court clerk from even receiving lawsuits filed by citizens against the abortion industry. The provision blocking lawmakers is entirely unnecessary since the language of the Texas Heartbeat Act already prohibits government officials from enforcing the policy. However, Pitman’s effort to obstruct state judges and court clerks from fulfilling their lawful duties is astonishing.
This is the legacy of Roe v. Wade: Judges catering to the abortion industry, crafting a conclusion first and then searching the depths of legal literature for a rationale later.
Pro-Life attorneys are likely to appeal the decision to the Fifth Circuit Court of Appeals immediately, in which we expect a fair hearing.
Until a higher court intervenes, the disappointing reality is that Pitman’s ruling will likely stop the Texas Heartbeat Act from being enforced.
Texas Right to Life maintained that abortionists could still be sued for violating the abortion ban, despite the ruling.
However, even with this ruling, abortionists can still be held liable for any abortions they commit in violation of the law.
The Texas Heartbeat Act states that an individual being sued under the law cannot claim as an affirmative defense that they were acting under the protection of a court order that had since been reversed or overturned:
“Notwithstanding any other law, the following [is] not a defense to an action brought under this section… a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;” (Section 171.208(e)(3), Texas Health and Safety Code)Thus, those who aid or abet abortions, even if currently permitted by this ruling, could eventually be sued for their actions today.
“Texas Right to Life is dedicated to holding the abortion industry accountable to the fullest extent possible under the law. We are confident that the Texas Heartbeat Act will ultimately withstand this legal challenge and succeed where other states’ heartbeat bills have not,” the pro-life group concluded.
The pro-life group Susan B. Anthony List also commented to LifeNews on Judge Pitman’s decision.
“The people of Texas speaking through their state legislators acted to protect unborn children with beating hearts, who are as human as you and me,” said SBA List President Marjorie Dannenfelser. “The Heartbeat Act is estimated to have saved more than 4,700 babies since it took effect over a month ago. Now an unelected judge has interfered with the clearly expressed will of Texans. For two generations, the U.S. Supreme Court has tied the hands of states to enact laws protecting unborn children and their mothers. It is time to restore this right to the people and update our laws.”
Judge Pitman’s ruling came roughly one month after the law went into effect on Sept. 1. The Supreme Court declined to block its enactment, leaving the law in place while litigation against it continues in lower courts.
“Texas has made clear it does not want to follow the Supreme Court‘s abortion precedents,” federal government attorney Brian Netter said during Friday’s hearing.
He asked the judge to issue an injunction blocking Texas and “all of its officers, employees and agents, including private parties” from suing abortionists who violate the law, CNN reports.
“The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights, while skirting judicial review,” Netter said.
However, Will Thompson, an attorney representing Texas Attorney General Ken Paxton’s Office, told the judge that the federal government is using “inflammatory rhetoric” to attack the law, and the heartbeat law is not the only legislation that allows private enforcement.
“This is not some kind of vigilante scheme. It’s a scheme that uses the normal and lawful process,” Thompson said.
Netter contended that private citizens really are just acting for the state as a proxy to enforce the law. The judge asked Thompson about this claim.
Afterward, Texas Right to Life slammed the Biden administration’s arguments as “maniacal” and “entirely unprecedented.”
Kimberlyn Schwartz, director of media and communications, summarized the hearing: “Ultimately, the Justice Department is asking the court to toss out all logic and judicial precedent in order to cater to the abortion industry. The Biden administration’s case is desperate and far-fetched, and we expect an impartial court to declare the lawsuit without merit.”
The Biden administration has taken multiple actions to thwart Texas’s efforts to save unborn babies from abortion. Along with the lawsuit, it also set aside $10 million – taxpayers’ money – to provide grants to the abortion industry in Texas and make additional Title X family planning funds available.
In 2020, about 54,000 unborn babies were aborted in Texas, and about 85 percent happened after six weeks of pregnancy, according to state health statistics.
While abortion activists say some women are traveling to other states for abortions, they admit that others are having their babies instead.
Meanwhile, pro-life advocates are reaching out to pregnant women across Texas with compassion and understanding, offering resources and emotional support to help them and their babies. Earlier this year, state lawmakers increased support for pregnant and parenting mothers and babies, ensuring that they have resources to choose life for their babies.
Texas Right to Life encouraged women seeking pregnancy help to visit its website for a list of resources. Find it here.
Polls show Americans support heartbeat laws. An April poll by the University of Texas-Austin found that 49 percent of Texans support making abortions illegal after six weeks of pregnancy, while 41 percent oppose it. In 2019, a national Hill-HarrisX survey also found that 55 percent of voters said they do not think laws banning abortions after six weeks – when an unborn baby’s heartbeat is detectable – are too restrictive.
About a dozen states have passed heartbeat laws to protect unborn babies from abortion, but Texas is the first to be allowed to enforce its law. Whether the law will remain in effect or ultimately be upheld as constitutional in court remains uncertain, but pro-life leaders are hopeful now that the U.S. Supreme Court has a conservative majority.