WASHINGTON — Just days after the Supreme Court agreed to fast-track challenges to a Texas abortion law, setting an exceptionally abbreviated schedule, the parties filed a flurry of briefs on Wednesday attacking and defending the law.
The court will hear arguments on Monday in two different challenges, one brought by abortion providers in the state and the other by the Justice Department. The court’s scheduling order required the two sides to file their opening briefs simultaneously, with responses due on Friday.
Both challengers said the law, which bars most abortions after six weeks of pregnancy, is at odds with Roe v. Wade, which prohibits states from banning abortions before fetal viability, or around 23 weeks. They added that the law, known as Senate Bill 8, was cynically drafted to avoid review by federal courts.
“S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review,” wrote Brian H. Fletcher, the acting solicitor general, in the federal government’s brief. “So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century.”
“Yet Texas insists,” Mr. Fletcher wrote, “that the court must tolerate the state’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal judiciary powerless to intervene.”
Ken Paxton, Texas’ attorney general, filed a single brief in both cases, arguing that neither the federal government nor the providers were entitled to sue. The right way to challenge the law, Mr. Paxton said, was for abortion providers to violate it, be sued in state court, and present constitutional or other arguments as defenses.
“The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court,” Mr. Paxton wrote. “And there is nothing unprecedented about vindicating constitutional rights as a state-court defendant. To the contrary, that is the normal path by which constitutional issues come to this court.”
“A time will come — and no doubt soon — for the state courts to rule on the constitutionality of S.B. 8, and this court will, in turn, retain the last word on the correctness of their adjudication of federal law,” Mr. Paxton wrote. “But the United States does not get a free pass around long-settled federal-courts doctrines because it would prefer to litigate in a federal forum just a bit faster.”
Abortion providers in the state, represented by the Center for Reproductive Rights and other groups, filed a brief urging the justices to ensure that the federal courts have a role to play.
“Where, as here, a state enacts a blatantly unconstitutional statute, assigns enforcement authority to everyone in the world and weaponizes the state judiciary to obstruct those courts’ ability to protect constitutional rights,” the brief said, “the federal courts must be available to provide relief.”
The cases, Whole Woman’s Health v. Jackson, No. 21-463, and United States v. Texas, No. 21-588, are focused on the novel structure of the Texas law, which was devised to avoid review in federal court.
In December, the justices will hear arguments in a separate case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, which takes on a Mississippi law that bans abortions after 15 weeks. That case is direct challenge to the constitutional right to abortion established by Roe v. Wade in 1973.
The Texas law, which has been in effect since Sept. 1, makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
Understand the Texas Abortion Law
The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.
Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.
Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.
The patient may not be sued, but doctors, staff members at clinics, counselors, and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it, and they are entitled to at least $10,000 and their legal fees if they win. Defendants who win their cases are not entitled to legal fees.
The Supreme Court refused to block the law on Sept. 1 in a bitterly divided 5-to-4 ruling.
Jonathan F. Mitchell, a lawyer who helped draft the law and who represents individuals who say they want to preserve their right to sue under it, also filed a brief, writing that the federal government was not entitled to challenge the law.
“The constitutionality of the statute must be determined in the lawsuits between private parties,” he wrote, “not in a pre-emptive lawsuit brought against the sovereign government, which is not ‘enforcing’ the statute but merely allowing its courts to hear lawsuits arising under the disputed statutory enactment.”
Mr. Fletcher, representing the federal government, said those were dangerous arguments.
“If Texas is right, no decision of this court is safe,” he wrote in his brief. “States need not comply with, or even challenge, precedents with which they disagree. They may simply outlaw the exercise of whatever constitutional rights they disfavor; disclaim enforcement by state officials; and delegate the state’s enforcement authority to members of the general public by empowering and incentivizing them to bring a multitude of harassing actions threatening ruinous liability — or, at a minimum, prohibitive litigation costs.”
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