Biden administration brings Texas abortion law back to the Supreme Court

• Biden's Department of Justice has filed application to block the controversial Texas abortion ban.
• A federal appeals court last week issued a ruling allowing Texas' strict abortion ban to remain.

The Supreme Court will once again consider a restrictive Texas law that bans abortions past six weeks of pregnancy after President Joe Biden's Department of Justice on Monday asked the high court to block the law.

The DOJ filed an emergency review of a lower court's decision last week that allowed Texas' 6-week abortion ban to temporarily stay in place.

The Texas law, known as SB8, went into effect on September 1 and bans abortions after six weeks of pregnancy with no exceptions for rape or incest. Proponents of the law say that abortion is prohibited once fetal cardiac activity can be detected. That typically occurs in the early weeks of pregnancy, a time when many people do not yet know they are pregnant.

The DOJ on Monday wrote that on its merits, the Texas law is "clearly unconstitutional," violating the right to an abortion until around 24 weeks of pregnancy under Supreme Court precedent.

But the law has so far withstood judicial review because of its highly unique enforcement mechanism, which calls on private citizens rather than state officials to enforce the ban. Successful plaintiffs could be rewarded with at least $10,000, in addition to legal fees.

"Texas's insistence that no party can bring a suit challenging S.B. 8 amounts to an assertion that the federal courts are powerless to halt the State's ongoing nullification of federal law," the DOJ wrote to the Supreme Court. "That proposition is as breathtaking as it is dangerous."

The case represents the second time the strict law has been brought to the Supreme Court in less than two months. The court previously allowed the ban to stand in a narrow 5-4 decision handed down on September 2, a day after the statute took effect, declining a request from abortion providers to block the law.

The court's conservative majority wrote in an opinion that its decision was technical, citing that state officials can't be sued because they are not enforcing the law. The court did not consider the law's constitutionality. Chief Justice John Roberts, a George W. Bush appointee, dissented, along with the court's three liberal members, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Biden criticized the high court's ruling, and the DOJ afterward sued the state of Texas in an attempt to block the law. A federal district judge then struck down the law temporarily, writing in an opinion that it's unconstitutional.

Texas officials swiftly appealed the decision, and a federal appeals court reversed it, letting the Texas law go back into effect again.

The DOJ now called on the Supreme Court to temporarily halt the law, joining abortion providers who have also filed an emergency review seeking to stop the law. The Supreme Court asked Texas to respond to the case by Thursday.

Separately, the justices will review the constitutionality of abortion in a major case that concerns a Mississippi law that bans the procedure after 15 weeks of pregnancy, posing a direct challenge to Roe.