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DOJ to ask the Supreme Court to halt enforcement of Texas' abortion law


There is news today in the fight over the restrictive abortion law in Texas. The Justice Department says it will ask the U.S. Supreme Court to halt enforcement of the law while the legal battle over it plays out. NPR Justice Correspondent Ryan Lucas is following this and joins us now.

Hey, Ryan.


MCCAMMON: What did the Justice Department say today?

LUCAS: Well, I think in order to understand what the department said today, it's helpful to back up a bit first. So the department sued Texas last month over the state's new abortion law, and the department argues that this law is unconstitutional, that it violates Supreme Court precedent on abortion. Texas denies this. Last week, a federal judge in Texas temporarily blocked enforcement of the law while the Justice Department's lawsuit plays out. That judge said the law illegally prevents women from exercising their constitutional rights. Texas appealed that decision to the 5th Circuit Court of Appeals.

Last night, the 5th Circuit imposed what's known as a stay, ruling that the law can remain in effect while this legal challenge continues. And then today, the Justice Department said that it will ask the Supreme Court to step in and vacate that appeals court decision and once again suspend enforcement of Texas' law.

MCCAMMON: OK, there's been a lot of back and forth as far as this law is concerned, but as of today, it remains in effect in Texas. The law is known as SB 8. We've talked about it a lot. But, Ryan, remind us again why it's so controversial and unusual.

LUCAS: Well, it, in effect, bans abortions in the state after six weeks of pregnancy, which is before most women know that they're pregnant. The law does not allow exceptions for rape or sexual abuse or incest. And the law includes a novel means of enforcement. It basically deputizes average citizens to sue doctors or drivers or anybody who helps a woman get an abortion. And these people bringing the lawsuit can get $10,000 in damages if they win. And remember, the stakes of this legal battle are very high. We're talking about the ability of women in Texas, the second biggest state in the country, their ability to get an abortion. And right now, they can't.

MCCAMMON: And that very enforcement mechanism, that's also something the Justice Department is challenging in this lawsuit, right?

LUCAS: That's right. The department says a lot of things in its lawsuit. It says that SB 8 is unconstitutional, that it violates the supremacy clause in the 14th Amendment, as well as Supreme Court precedent on abortion, as I said. But you are absolutely right. The department zeroes in on the enforcement scheme in SB 8. The DOJ says this scheme is designed to try to shield the law from judicial review. And Attorney General Merrick Garland has said, as have department lawyers in court filings, that there's a broader concern here, and that's that other states could try to pass similar laws that would restrict abortion or other constitutional rights as well.

MCCAMMON: Right. So this is not only about Texas. Ryan, what's next here?

LUCAS: Well, the Justice Department still has to file its papers with the Supreme Court. And we wait to see, of course, what the Supreme Court will do. For what it's worth, the court previously entertained a challenge to the Texas law brought by advocacy groups, and the court voted 5-4 to allow the law to go into effect. But the court did not address the constitutionality of the Texas law.

As for what happens next, the 5th Circuit has scheduled oral arguments for early December. And as of now, as we've said, the law does remain in effect, and that means that abortions in Texas have essentially stopped. And the Justice Department has made clear that in its view, as long as the Texas law holds women in the state, that they will be denied a constitutional right. And that's what - that's what is driving a lot of the urgency here on the DOJ's part.

MCCAMMON: NPR's Ryan Lucas.

Thanks, Ryan.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.

Ryan Lucas covers the Justice Department for NPR.

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