Briefs Draw Battle Lines as Texas Abortion Law Nears Supreme Court

WASHINGTON — Just days aft the Supreme Court agreed to fast-track challenges to a Texas termination law, mounting an exceptionally abbreviated schedule, the parties filed a flurry of briefs connected Wednesday attacking and defending the law.

The tribunal volition perceive arguments connected Monday successful 2 antithetic challenges, 1 brought by termination providers successful the authorities and the different by the Justice Department. The court’s scheduling bid required the 2 sides to record their opening briefs simultaneously, with responses owed connected Friday.

Both challengers said the law, which bars astir abortions aft six weeks of pregnancy, is astatine likelihood with Roe v. Wade, which prohibits states from banning abortions earlier fetal viability, oregon astir 23 weeks. They added that the law, known arsenic Senate Bill 8, was cynically drafted to debar reappraisal by national courts.

“S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review,” wrote Brian H. Fletcher, the acting solicitor general, successful the national government’s brief. “So far, it has worked: The menace of a flood of S.B. 8 suits has efficaciously eliminated termination successful Texas astatine a constituent earlier galore women adjacent recognize they are pregnant, denying a law close the tribunal has recognized for fractional a century.”

“Yet Texas insists,” Mr. Fletcher wrote, “that the tribunal indispensable tolerate the state’s brazen onslaught connected the supremacy of national instrumentality due to the fact that S.B. 8’s unprecedented operation leaves the national judiciary powerless to intervene.”

Ken Paxton, Texas’ lawyer general, filed a azygous brief successful some cases, arguing that neither the national authorities nor the providers were entitled to sue. The close mode to situation the law, Mr. Paxton said, was for termination providers to interruption it, beryllium sued successful authorities court, and contiguous law oregon different arguments arsenic defenses.

“The Constitution does not warrant pre-enforcement reappraisal of authorities (or federal) laws successful national court,” Mr. Paxton wrote. “And determination is thing unprecedented astir vindicating law rights arsenic a state-court defendant. To the contrary, that is the mean way by which law issues travel to this court.”

“A clip volition travel — and nary uncertainty soon — for the authorities courts to regularisation connected the constitutionality of S.B. 8, and this tribunal will, successful turn, clasp the past connection connected the correctness of their adjudication of national law,” Mr. Paxton wrote. “But the United States does not get a escaped walk astir long-settled federal-courts doctrines due to the fact that it would similar to litigate successful a national forum conscionable a spot faster.”

Abortion providers successful the state, represented by the Center for Reproductive Rights and different groups, filed a brief urging the justices to guarantee that the national courts person a relation to play.

“Where, arsenic here, a authorities enacts a blatantly unconstitutional statute, assigns enforcement authorization to everyone successful the satellite and weaponizes the authorities judiciary to obstruct those courts’ quality to support law rights,” the little said, “the national courts indispensable beryllium disposable to supply relief.”

The cases, Whole Woman’s Health v. Jackson, No. 21-463, and United States v. Texas, No. 21-588, are focused connected the caller operation of the Texas law, which was devised to debar reappraisal successful national court.

In December, the justices volition perceive arguments successful a abstracted case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, which takes connected a Mississippi instrumentality that bans abortions aft 15 weeks. That lawsuit is simply a nonstop situation to the law close to termination established by Roe v. Wade successful 1973.

The Texas law, which has been successful effect since Sept. 1, makes nary exceptions for pregnancies resulting from incest oregon rape, bars authorities officials from enforcing it and alternatively deputizes backstage individuals to writer anyone who performs the process oregon “aids and abets” it.

Understand the Texas Abortion Law

The diligent whitethorn not beryllium sued, but doctors, unit members astatine clinics, counselors, and radical who assistance wage for the process oregon thrust patients to it are each imaginable defendants. Plaintiffs bash not request to unrecorded successful Texas, person immoderate transportation to the termination oregon amusement immoderate wounded from it, and they are entitled to astatine slightest $10,000 and their ineligible fees if they win. Defendants who triumph their cases are not entitled to ineligible fees.

The Supreme Court refused to artifact the instrumentality connected Sept. 1 successful a bitterly divided 5-to-4 ruling.

Jonathan F. Mitchell, a lawyer who helped draught the instrumentality and who represents individuals who accidental they privation to sphere their close to writer nether it, besides filed a brief, penning that the national authorities was not entitled to situation the law.

“The constitutionality of the statute indispensable beryllium determined successful the lawsuits betwixt backstage parties,” helium wrote, “not successful a pre-emptive suit brought against the sovereign government, which is not ‘enforcing’ the statute but simply allowing its courts to perceive lawsuits arising nether the disputed statutory enactment.”

Mr. Fletcher, representing the national government, said those were unsafe arguments.

“If Texas is right, nary determination of this tribunal is safe,” helium wrote successful his brief. “States request not comply with, oregon adjacent challenge, precedents with which they disagree. They whitethorn simply outlaw the workout of immoderate law rights they disfavor; disclaim enforcement by authorities officials; and delegate the state’s enforcement authorization to members of the wide nationalist by empowering and incentivizing them to bring a multitude of harassing actions threatening ruinous liability — or, astatine a minimum, prohibitive litigation costs.”