Biden administration is suing Texas over its abortion ban. What's next? Will the Supreme Court take it up?

Demonstrators march outside Supreme Court Justice Brett Kavanaugh's home in Chevy Chase, Md., on Sept. 13 after a high-profile decision in which the court, by 5-4 vote, declined to step in to stop a Texas law banning most abortions from taking effect.
John Fritze

WASHINGTON – The Biden administration’s attempt to block temporarily Texas’ ban on abortions after six weeks of pregnancy will almost certainly put the contentious law back before the Supreme Court – possibly  in a matter of weeks, legal experts said.

What happens at that point is anybody’s guess.

The Justice Department asked a federal judge in Austin Tuesday to block the ban, which became the most restrictive abortion law in the nation after the Supreme Court allowed it to take effect this month while the district court hears the federal government's challenge to the law.

The legal drama has once again thrust abortion to the forefront of the nation’s political and cultural wars.

“One of the things we’re asking for here is an actual legal process, which was not really afforded” in the first federal lawsuit challenging the law, Massachusetts Attorney General Maura Healey, a Democrat, told USA TODAY on Wednesday. “We’ll be in whatever courtroom we need to be to have this addressed.”

Healey led a friend-of-the-court brief by two dozen Democratic attorneys general in federal court Wednesday calling the Texas ban a “new and dangerous frontier in the quest by some state legislatures to restrict or eliminate abortion access in violation of well-established law.”

DOJ:Justice Department seeks emergency order to block Texas abortion ban

Earlier:Supreme Court declines to block Texas abortion ban at six weeks

More:Texas abortion law written to put providers at a legal disadvantage

Five conservative justices of the Supreme Court shot down an earlier effort to halt the law, asserting that the unusual enforcement mechanism Texas relied on essentially tied the court's hands – even though the state’s six-week ban flouts the high court’s precedent guaranteeing a woman the right to abortion through about 24 weeks of pregnancy.

The practical effect of that ruling has been that abortion providers in Texas have discontinued the procedure once a fetal heartbeat is detected.

Texas Attorney General Ken Paxton didn’t respond to a request for comment, but Texas Right to Life Vice President Elizabeth Graham said that her group, which was instrumental in passing the law, wasn’t surprised by the Biden administration’s “desperate move to stop the Texas Heartbeat Act from saving lives” and said it expects federal courts to declare the lawsuit invalid.

Whether that happens will initially be decided by U.S. District Judge Robert Pitman, nominated by President Barack Obama and confirmed unanimously by the U.S. Senate.

Pitman has asked for Texas to respond to the Justice Department’s request by Sept. 29 and has set a hearing for Oct. 1.

Here’s a look at what has happened in the legal battle over the Texas law and what’s likely next.

'Breathtaking act of defiance'

A dozen other states – including Alabama, Iowa and Ohio – have sought to ban abortions at six weeks or earlier. All of those laws have been put on hold by federal courts.

Nearly 50 years ago, the Supreme Court ruled in Roe v. Wade that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Years later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – about 24 weeks.

But Texas structured the enforcement of its law differently, relying on private citizens to file lawsuits against abortion providers and others who help women get the procedure. That enforcement mechanism, which includes possible awards of at least $10,000 for successful plaintiffs, makes it far harder for abortion rights groups to block the law on an emergency basis because it isn’t entirely clear whom they should sue.

A majority of the Supreme Court noted that uncertainty in their midnight order on Sept. 1, asserting that the initial federal lawsuit raised “serious questions regarding the constitutionality of the Texas law” but that it also presented “complex and novel antecedent procedural questions on which they have not carried their burden.”

Translation: It’s not clear abortion providers sued the right people.

“That first lawsuit was really not a good lawsuit,” said Howard Wasserman, a professor at Florida International University College of Law. But whether the Justice Department can sue Texas directly, he said, “is a much closer question.”

Abortion rights groups and the high court’s liberal justices slammed the idea that Texas could “evade judicial scrutiny.”

Associate Justice Sonia Sotomayor decried the state’s enforcement mechanism as a “breathtaking act of defiance.”

After an outcry from progressive groups and a scathing statement from President Joe Biden, who described the ruling as an "unprecedented assault on a woman’s constitutional rights," the Justice Department filed its own lawsuit against Texas over the law on Sept. 9, a second effort to stop the law in federal court.

What’s next in the Texas abortion fight

Anti-abortion demonstrators gather in the Capitol rotunda in Austin on March 30.

The Justice Department’s litigation may address the procedural question of who can be sued, but it may open up a new front over who can do the suing. Some have questioned whether the federal government is best positioned to take Texas to court.

Usually the federal government sues a state when local officials are overly involved in something traditionally regulated by the federal government. The Obama administration, for instance, sued Arizona in 2010 over that state’s immigration law that required local police to investigate the immigration status of people they suspected of being in the country illegally. The Supreme Court struck down portions of that law in 2012.

“I don’t think they can get the sweeping result they want,” predicted Josh Blackman, a law professor at South Texas College of Law Houston.

If the district court blocks the law from taking effect, Texas probably would appeal to the New Orleans-based U.S. Court of Appeals for the 5th Circuit, a court that ruled against abortion rights groups in an earlier lawsuit and blocked the district court from considering temporarily halting enforcement of the Texas law.  

If the appeals court puts the Texas law back on the books in the Justice Department lawsuit, that would likely bring the question of whether the law can be enforced back to the Supreme Court.

That series of events would mean the Supreme Court would once again be considering not the underlying constitutional questions raised by the Texas law but questions about whether it ought to be blocked temporarily. Such a decision probably would be handed down from the court’s so-called shadow docket, which has faced scrutiny in recent weeks – including from Associate Justice Elena Kagan – for deciding major appeals with potentially far-reaching substantive implications without oral argument.

But those fighting the Texas law said that would still be an improvement over the initial lawsuit, which dealt with whether the federal district court could even hold a hearing to weigh the questions raised by the abortions providers.  

“This matter needs to be heard,” Healey said.

The Biden administration’s attempt to block temporarily Texas’ ban on abortions after six weeks of pregnancy will almost certainly put the law back before the Supreme Court.