US President Joe Biden. Picture: REUTERS/JONATHAN ERNST
US President Joe Biden. Picture: REUTERS/JONATHAN ERNST

The Biden administration urged a federal appeals court to reinstate a judge’s order blocking enforcement of Texas’s new ban on most abortions, arguing the law flouts more than 200 years of precedent.

The Texas law barring most abortions after about six weeks of pregnancy, before many women know they’re pregnant, far exceeds the power granted to state legislatures under the constitution, the justice department said late on Monday in a filing with the US Court of Appeals in New Orleans.

“Texas defends its novel scheme by invoking state sovereignty,” the justice department said. “But state sovereignty does not encompass the authority to defy the federal constitution.”

The government is fighting to revive a preliminary injunction that would block enforcement of the law while the case proceeds. The injunction was granted by a judge on October 6 but then temporarily stayed by the appeals court two days later. Texas and the Biden administration are now fighting over whether the court should grant a longer-lasting hold pending appeal.

In arguing to revive the injunction, the justice department cited an 1810 Supreme Court ruling by one of the nation’s most influential chief justices, John Marshall, who said the constitution “imposes limits to the legislatures of the several states, which none claim a right to pass”.

Texas “flouts that principle by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions,” the Justice Department said.

The Texas law, known as SB-8, has no exceptions for rape or incest. It was drafted to make it difficult to challenge in court by delegating enforcement to individuals, who can sue anyone who performs abortions or helps, even by simply driving a woman to an abortion clinic.

“Recognising that SB8 contravenes controlling Supreme Court precedent, Texas instead crafted the law to hinder judicial review,” the justice department said in Monday’s filing. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind.”

The case is being closely watched in other Republican-led states that view the law as a template for restricting abortions and evading federal legal challenges. Conservatives nationwide are racing to rein in the procedure while seeking to weaken or overturn the landmark Supreme Court ruling in Roe v Wade, which guarantees access to it.

The office of Texas attorney-general Ken Paxton did not immediately respond to an after-hours request for comment on the federal government’s filing.

Bloomberg News. More stories like this are available on bloomberg.com

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