Texas’s pro-life “heartbeat” law, which prohibits abortion after a fetal heartbeat is detected, is under legal scrutiny once again. The Department of Justice (DOJ) filed suit against Texas days after the law took effect on September 1, when the Supreme Court of the United States, in a 5-4 decision, denied abortion providers’ emergency application to block the law from going into effect while legal challenges proceed in lower courts.
In his filing, Acting Solicitor General Brian Fletcher argued that Texas’s law is “clearly unconstitutional” and defies Supreme Court precedent. Fletcher further argued that failure to ban the law would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights.”
Current Supreme Court precedent holds that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
The current DOJ request comes after the Texas law was temporarily suspended, then reinstated. Earlier this month, U.S. District Judge Robert Pitman of the Western District of Texas ruled the law’s enforcement should be temporarily halted while litigation surrounding the law finishes, citing the “irreparable harm” those seeking abortions would suffer. However, Texas successfully appealed Pitman’s ruling to the U.S. Court of Appeals for the Fifth Circuit, where a three-judge panel stayed the lower court’s decision, allowing the law to be enforced pending litigation.
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Federal review of the Texas Heartbeat Act is complicated by the law’s unusual enforcement apparatus, which authorizes private citizens, rather than state officials, to enforce the law through civil lawsuits in state courts.
The Justice Department now wants the Supreme Court to lift the Fifth Circuit’s stay. The department further requests the Court hear oral arguments about the law this term to decide the law’s constitutionality.
If the Court agrees to hear oral arguments about the law, that will make it the second major abortion case of the Court’s term. The Court will consider a Mississippi law that prohibits abortion after 15 weeks in December, around the same time the 5th Circuit Court of Appeals intends to hold oral arguments on the Texas law.
The case is United States v. Texas, No. 21-463 in the Supreme Court of the United States.