Justice formally asks Supreme Court to block ‘plainly unconstitutional’ Texas abortion law

The Biden administration formally asked the Supreme Court on Monday to block a controversial Texas law that bans abortions after six weeks of pregnancy, calling it “plainly unconstitutional.”

The Department of Justice (DOJ) filed an application with the high court seeking an order that would suspend enforcement of the law known as S.B. 8 while the administration’s legal challenge proceeds.

“S.B. 8 is plainly unconstitutional under this Court’s precedents,” the DOJ’s DOJ’s filing reads. “Texas has not seriously argued otherwise.”

The department’s brief argued that the high court should not allow the law to stand because of procedural obstacles due to the way the law was designed.

“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.”

Monday’s filing marks the second time that the Supreme Court has been presented with the question of whether to block the Texas law. Last month, in a legal challenge from abortion providers in the state, a 5-4 majority allowed S.B. 8 to go into effect, citing the procedural obstacles presented by the law’s enforcement scheme.

The law’s abortion ban was designed to be enforced exclusively by private individuals bringing civil suits against those who helped facilitate or perform banned procedures. Because state officials have no role in enforcing the ban, Texas has argued that it is not a proper defendant in a suit challenging the law’s constitutionality.

The Fifth Circuit Court of Appeals sided with Texas last week, lifting a trial judge’s order that suspended the law’s enforcement.

The Supreme Court often dispenses with applications regarding preliminary injunctions without a full briefing, a process that has been increasingly referred to as the high court’s “shadow docket.”

The DOJ on Monday asked the court to consider adding the case to this term’s calendar to allow for a full briefing and to partially circumvent the Fifth Circuit, which is among the most conservative appellate courts in the country.

Texas has until Thursday to file its response with the court.