Texas Given Deadline for SCOTUS Response as High Court Mulls Taking Up Abortion Law Case

The U.S. Supreme Court has ordered Texas to respond by midday Thursday to the Biden administration's move to block the state's controversial abortion law, the Associated Press reported.

On Monday, the Justice Department officially requested that the high court lift a federal appeals court's ruling that allows the Texas law, which effectively bans abortions after six weeks, to remain in effect after a U.S. District judge temporarily blocked it.

The Justice Department wrote in its plea to the Supreme Court that the Texas legislation challenges some of the court's previous rulings "by banning abortion long before viability—indeed, before many women even realize they are pregnant."

"The question now is whether Texas' nullification of this Court's precedents should be allowed to continue while the courts consider the United States' suit. As the [U.S. District Court judge] recognized, it should not," the Justice Department wrote.

The Biden administration has also brought up the possibility of having the high court provide a full review and ruling on the law's constitutionality during its current term, the AP reported. While it is rare for the court to get involved this early in a lawsuit, the administration said that the Texas law, and the possibility that other states could follow in its footsteps, warrant such early involvement.

For more reporting from the Associated Press, see below.

SCOTUS Sets Deadline For Texas Response
The Justice Department is asking the Supreme Court to lift a federal appeals court's ruling that allows the controversial Texas abortion law, which effectively bans the procedure after six weeks, to remain in effect. Above, the high court's building in Washington, D.C. J. Scott Applewhite/AP Photo

The law has been in effect since September, aside from the pause ordered by the U.S. District judge that lasted just 48 hours, and bans abortions once cardiac activity is detected, usually around six weeks and before some women know they are pregnant.

White House press secretary Jen Psaki said at Monday's news briefing that President Joe Biden would protect abortion rights and that the Justice Department would lead efforts to ensure that women have "access to fundamental rights that they have to protect their own health."

It's not clear whether the administration will prevail at a Supreme Court with a conservative majority that has been fortified by three appointees of former President Donald Trump and already has agreed to hear a major challenge to abortion rights in a case from Mississippi.

The Trump appointees, joined by two other conservatives, have once before rejected a plea to keep the law on hold, in a separate lawsuit filed by abortion providers. There was no immediate timetable for Supreme Court action on this latest motion.

While courts have blocked other state laws effectively banning abortion before a fetus can survive outside the womb, roughly around 24 weeks, the Texas law has so far avoided a similar fate because of its unique structure that leaves enforcement up to private citizens rather than state officials. Anyone who brings a successful lawsuit against an abortion provider for violating the law is entitled to claim at least $10,000 in damages.

In the 5-4 vote last month to allow the law to remain in effect, the high court acknowledged in an unsigned order that there were "serious questions regarding the constitutionality of the Texas law" but also "complex and novel" procedural questions about whom to sue and whether federal courts had the power to stop the law from being enforced.

In a dissenting opinion, Chief Justice John Roberts wrote that he would have put the "unprecedented" law on hold so that the court could consider "whether a state can avoid responsibility for its laws" by handing off enforcement. The court's three liberal justices also dissented.

The question now is whether the administration's presence in the new lawsuit will make a difference. A three-judge panel of the 5th U.S. Circuit Court of Appeals provided its answer late Thursday, extending its earlier order that allows the law to remain in effect. In a 2-1 vote, the court said it was siding with Texas.

Texas sought help from the appeals court after U.S. District Judge Robert Pitman ruled that the Justice Department did have the ability to sue and that he had the authority to stop the law from being enforced, writing that "women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution."

The judge conceded, however, that "other courts may find a way to avoid this conclusion."

Protests Against Texas Abortion Law
Women rights activists gather in front of the Supreme Court to protest the Texas abortion law on October 2. Tasos Katopodis/Getty Images