Civil and Human Rights

Scholars, medical groups and former prosecutors file Supreme Court briefs against Texas abortion law

WASHINGTON — Filings continued rolling in Tuesday ahead of Thursday’s U.S. Supreme Court deadline for submitting briefs in the federal government’s challenge to Texas’ new abortion law, and opponents have dominated the filings so far.

When the Department of Justice filed an emergency application on Monday asking the Supreme Court to halt enforcement of Texas’ six-week abortion ban, the court gave Texas until noon ET Thursday to respond to the request. In the meantime, interested parties are submitting briefs that provide additional information or insight to try to sway court justices.

These briefs, known as amicus briefs, are submitted by “friends of the court,” typically a person or group who is not involved in the legal action itself but has a strong interest in the matter.

The DOJ, acting on behalf of the Biden administration, is seeking to convince the court to block enforcement of Texas’ abortion law, known as Senate Bill 8, until federal courts sort out its legality.

As of Tuesday afternoon, eight groups had moved to file an amicus brief regarding the case — and none of them were filed in support of Texas’ new law, considered the toughest restrictions in the nation.

A brief was filed Tuesday afternoon on behalf of nearly 120 current and former prosecutors and law enforcement leaders, and former state attorneys general, federal and state court judges, U.S. attorneys and U.S. Department of Justice officials.

These officials “believe that if Senate Bill 8 … is permitted to remain in effect, including while this litigation is pending, it will erode trust in the rule of law and adversely impact the interests of public safety that [these officials] seek to advance,” their brief reads.

A group of Planned Parenthood organizations with health centers in Texas, Arkansas, Colorado, Kansas, New Mexico, Oklahoma and Nevada submitted an amicus brief on Monday to detail “SB8′s real-life impact on Texas patients being denied, and Planned Parenthood staff who are now prohibited from providing, the abortions patients need.”

The brief as a whole is mainly a collection of interviews with people identified only by their initials: “F.P. is a sixteen-year-old student denied an abortion under SB8. She is unsure whether she can travel out-of State”; “D.O. is the single mother of a kindergartener and is balancing work and school. She was just out of a relationship with her daughter’s father who ‘was just really bad … very abusive.’”

Legal scholars have also sought to weigh in on the constitutionality of the Texas law with a series of briefs. The Constitutional Accountability Center, a progressive think tank and law firm based in Washington, D.C., filed a brief in support of the Justice Department’s application.

“The United States has a right to sue here because SB8 imposes a substantial burden on interstate commerce, creates a crisis for the United States and the rule of law, and has resulted in a scenario in which it is exceedingly difficult, if not impossible, for private individuals to enforce their own Fourteenth Amendment rights,” the center wrote.

A group of constitutional law professors from across the country agreed, and in a separate brief filed Tuesday, wrote: “S.B. 8— which bans abortions once a heartbeat is detected, weeks before fetal viability — is plainly unconstitutional under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1992). No one seriously argues otherwise.”

Another group of law professors, this time two who say they have “substantial expertise in the governing principles that have traditionally constrained private enforcement schemes,” also filed a brief in support of the Justice Department’s application.

SB 8 is unique in that it relies on private citizens, not the state, to enforce the six-week ban through legal action, and some legal scholars have warned that if Texas is allowed to violate the Constitution by delegating enforcement to private citizens, other states could do the same with other rights.

Two briefs filed on behalf of medical organizations also came in Tuesday: one filed by a group of 19 national medical organizations and one from the Texas Medical Association, which has opposed SB 8 since it became law in early September.

“TMA’s members are united in their opposition against unreasonable interference in the physician-patient relationship with respect to virtually all medical treatments and against subjecting physicians to frivolous lawsuits,” the medical association wrote.

As court filings continue, it’s expected anti-abortion groups and legal experts will file briefs on Texas’ behalf.

“The Biden administration’s unconditional support of the abortion industry shows just how far pro-abortion Democrats will go to curry favor with abortionists and abortion supporters,” Carol Tobias, president of the National Right to Life Committee, said Monday after the Justice Department filed its application.

Those filings followed a brief filed Monday by 23 states and the District of Columbia as they quickly threw their support behind the Justice Department’s application Monday, urging the Supreme Court to block the six-week ban.

“This ban is blatantly unconstitutional under this Court’s longstanding precedents; is inflicting irreparable harms on people across Texas; and is harming people in our own States as well, including by impeding access to abortion for our own residents due to the large number of Texas residents traveling to seek care elsewhere,” the states wrote in their amicus brief.

The vast majority of the states who joined the brief have Democratic governors, including New Mexico and Colorado.

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