It comes as the Texas clinics are running out of avenues to stop the GOP-engineered law that bans abortions once cardiac activity is detected, which is usually around six weeks. It amounts to the nation’s biggest curb to abortion in nearly 50 years.
The latest defeat for clinics came Thursday night when a federal appeals panel in New Orleans, in a 2-1 decision, allowed the restrictions to remain in place for a third time in the last several weeks alone.
Justice Department spokesman Anthony Coley said the federal government will now ask the Supreme Court to reverse that decision but did not say how quickly.
The Biden administration was under pressure from abortion rights supporters to go to the Supreme Court even before the announcement. The court already once allowed the restrictions to take effect, but did so without ruling on the law’s constitutionality.
Since the law took effect Sept. 1, Texas women have sought out abortion clinics in neighboring states, some driving hours through the middle of the night and including patients as young as 12 years old. The law makes no exception for cases of rape or incest.
The Texas Attorney General’s Office called the decision Thursday night by the 5th U.S. Circuit Court of Appeals a “testament that we are on the right side of the law and life.”
A 1992 decision by the Supreme Court prevented states from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy. But Texas’ version has outmaneuvered courts so far due to the fact that it offloads enforcement to private citizens. Anyone who brings a successful lawsuit against an abortion provider for violating the law is entitled to claim at least $10,000 in damages, which the Biden administration says amounts to a bounty.
Only once has a court moved to put the restrictions on hold — and that order only stood for 48 hours.
During that brief window, some Texas clinics rushed to perform abortions on patients past six weeks, but many more appointments were canceled after the 5th Circuit moved to swiftly reinstate the law last week.
Texas had roughly two dozen abortion clinics before the law took effect, and operators have said some may be forced to close if the restrictions stay in place for much longer.
Already the stakes are high in the coming months over the future of abortion rights in the U.S. In December, the new conservative majority on the Supreme Court will hear Mississippi’s bid to overturn the landmark Roe v. Wade decision that guarantees a woman’s right to an abortion.
Texas Right to Life, the state’s largest anti-abortion group, set up a tip line to receive allegations against abortion providers but has not filed any lawsuits. Kimberlyn Schwartz, a spokeswoman, said Thursday the group expected the Biden administration to go to the Supreme Court next and was “confident Texas will ultimately defeat these attacks on our life-saving efforts.”
On Wednesday, 18 state attorneys generals from mostly GOP-controlled states threw new support behind the Texas law, urging the court to let the restrictions stand while accusing the federal government of overstepping in bringing the challenge in the first place. Last month, more than 20 other states, mostly run by Democrats, had urged the lower court to throw out the law.
U.S. Attorney General Merrick Garland has called the law “clearly unconstitutional” and warned that it could become a model elsewhere in the country unless it’s struck down.