Justice Department to Ask Supreme Court to Block Texas Anti-Abortion Law: Spokesman

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

A Department of Justice spokesman confirmed on Friday that the agency will ask the Supreme Court to issue a temporary injunction against Texas’ anti-abortion law.

The Justice Department will specifically ask the high court to reverse the 5th U.S. Circuit Court of Appeals’ decision on Thursday night that lifted a lower court’s decision to block the Texas law, spokesman Anthony Coley said in a statement.

About a week ago, U.S. District Judge Robert Pitman, an Obama appointee, granted an emergency request from the Justice Department and blocked enforcement of the law, known as Senate Bill 8 (SB8), which essentially bans all abortions after the sixth week of pregnancy.

“The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit’s stay of the preliminary injunction against Texas Senate Bill 8,” spokesman Anthony Coley said in a statement to news outlets on Friday.

In September, the agency filed its lawsuit against the law and argued that it violates the Constitution, including the Supremacy Clause as well as the equal protection afforded under the 14th Amendment.

Before the law went into effect on Sept. 1, the Supreme Court in a 5-4 ruling in late August declined to stop it from going into effect. Chief Justice John Roberts joined associate Justices Elena Kagan, Stephen Breyer, and Sonya Sotomayor in dissenting, while Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett were in the majority.

Some critics of the measure have said SB8 has an unusual enforcement mechanism, where state officials are barred from enforcing the law. However, Texas residents can sue anyone, including doctors and medical staff, who helps a woman obtain an abortion.

“Texas does not even attempt to defend SB8’s constitutionality in this Court,” Justice Department lawyers argued in a filing (pdf) to the Fifth Circuit earlier this week. “Recognizing that SB8 contravenes controlling Supreme Court precedent, Texas instead crafted the law to hinder judicial review, by disclaiming enforcement powers and by attempting to render any post-enforcement review ineffective.”

Texas Attorney General Ken Paxton, when he filed an appeal against Pitman’s order earlier this month, argued that the state disagrees because the “sanctity of human life is, and will always be, a top priority for me.”

Pro-life groups, including the Texas Right to Life, applauded the 5th Circuit’s decision on Thursday.

“We are excited to continue saving hundreds of lives through the Texas Heartbeat Act,” the group’s director of media and communication Kimberlyn Schwartz said in a statement.

“However, the battle is not finished,” she added. “We expect the Biden administration to appeal to the Supreme Court of the U.S., and we are confident Texas will ultimately defeat these attacks on our life-saving efforts.”