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Texas asks Supreme Court to let its abortion ban stand

POLITICO logo POLITICO 10/21/2021 By Alice Miranda Ollstein
The Justice Department building is pictured on December 9, 2019 in Washington, D.C. © Samuel Corum/Getty Images The Justice Department building is pictured on December 9, 2019 in Washington, D.C.

Texas on Thursday urged the Supreme Court to turn away a Biden administration effort to halt enforcement of the state's six-week abortion ban but broached the possibility that justices could also opt to use the matter to more broadly consider decades-old precedents affirming abortion rights.

A pair of filings from the state marked the latest salvo over the state's law after the Justice Department this week asked the Supreme Court to take emergency action that would block Texas’ novel abortion ban from being enforced while litigation over its constitutionality goes forward.

“If it reaches the merits, the Court should overturn Roe and Casey,” Texas stated in one filing, referring to the Roe v. Wade and Planned Parenthood v. Casey decisions that affirmed the right to the procedure. But officials led by state Attorney General Ken Paxton expressed confidence the state's ban could be upheld on the merits because of its unique enforcement scheme that relies on suits filed by private parties, rather than state or local prosecutors.


Video: Court keeps Texas abortion law in place (TODAY)

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The measure, dubbed a “heartbeat” law by its proponents, prohibits abortions from the time cardiac activity can be detected in the fetus — typically about six weeks into pregnancy.

Texas also asked justices on Thursday not to take up a challenge to the law from abortion clinics in the state before 5th U.S. Circuit Court of Appeals rules on whether the clinics have standing to sue, an issue the court will take up in December. The state says the clinics and their patients shouldn’t be able to sue either state officials or private citizens who may or may not act to enforce the ban in the future.

The appeals court previously rejected the clinics’ emergency request to block the law. That's caused chaos for patients across the state, abortion rights supporters say.

Texas argued the case shouldn't leapfrog over the 5th Circuit, saying such moves should be reserved only for cases that “prevent widespread societal or monumental disruption.”

The Supreme Court is set to hear another blockbuster abortion case in December related to Mississippi's 15-week abortion ban, a case they could choose to combine with the multiple challenges to Texas' law.

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