Biden administration asks justices to block enforcement of Texas abortion law - SCOTUSblog - 0 views
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The Biden administration asked the Supreme Court on Monday to do what the justices declined to do last month when asked by a group of Texas abortion providers: block the enforcement of a Texas law that imposes a near-total ban on abortions performed after the sixth week of pregnancy.
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making “abortion effectively unavailable” after six weeks, “Texas has, in short, successfully nullified” the Supreme Court’s “decisions within its borders.”
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Rather than handle the request on the so-called shadow docket, Fletcher also suggested in his filing that the justices could treat the request as a petition for review, schedule full briefing and oral argument, and resolve the merits of the case without waiting for the litigation to conclude in the lower courts.
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To make it more difficult to challenge the law in court, especially before it went into effect, the Texas law turns to private individuals, rather than government officials, to enforce the ban, deputizing them to bring lawsuits against anyone who either provides or “aids or abets” an abortion. The law also establishes an award of $10,000 for a successful lawsuit.
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By a vote of 5-4, in a one-paragraph order issued late at night, the court said that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But the majority nonetheless refused to stop the law from going into effect because, the court wrote, it wasn’t clear whether the state officials whom the abortion providers had named as defendants in the case “can or will seek to enforce the Texas law” in a way that would allow the court to get involved in the dispute at that stage.
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In a 39-page filing on Monday, Fletcher asked the justices to wipe away the 5th Circuit’s stay of Pitman’s order. That relief would reinstate Pitman’s decision blocking the law while the litigation continues.
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take up the case on its merits docket and definitively resolve the legality of Texas’ unusual enforcement scheme without waiting for a final ruling from the 5th Circuit — a maneuver known as a petition for certiorari before judgment. On Monday afternoon, the court granted the providers’ request to fast-track the justices’ consideration of their petition, directing the defendants in the case to file their response to the petition by noon on Thursday, Oct. 21.
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In a 113-page ruling on Oct. 6, U.S. District Judge Robert Pitman granted the administration’s request to put the law on hold. Observing that the right to obtain an abortion before the fetus becomes viable is “well established,
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Texas was “[f]ully aware that depriving its citizens of this right” directly would be “flagrantly unconstitutional”
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The majority’s refusal to intervene on an emergency basis sent the case back to the U.S. Court of Appeals for the 5th Circuit, which is scheduled to hear oral argument in early December.
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The Biden administration’s request went to Justice Samuel Alito, who fields emergency requests from the 5th Circuit. Alito acted quickly, ordering the state to file its response by noon on Thursday, Oct. 21, and — with the order later on Monday directing a response in the providers’ case — setting up the possibility that the court could act on both S.B. 8 cases at the same time.