Nation’s Highest Court Has Agreed to Hear Argument on Biden Administration’s and Healthcare Clinics’ Right to Sue over Texas Law, and the Request to Halt Law’s Enforcement

Amicus Brief

TRENTON – Acting Attorney General Andrew J. Bruck announced today that New Jersey has joined the filing of a new brief with the U.S. Supreme Court that provides further multi-state support for the efforts to stop Texas from banning most abortions.

Today’s amicus brief filing comes in the wake of two orders from the Supreme Court – both issued last Friday — that directly take up several key issues regarding the validity of the Texas law known as S.B. 8.

Among other things, the coalition brief filed this morning reiterates the states’ argument that the Texas law is clearly unconstitutional, and that its near total ban on pre-viability abortion contravenes nearly 50 years of binding legal precedent.

“Texas’s blatant disregard for the right to choose is a direct attack on the health and safety of women across the country,” said Governor Phil Murphy. “Limiting choice and restricting access to reproductive health care will cause irreparable harm to countless women and their families, particularly those in our most vulnerable communities. We will continue to fight this reckless law until a woman’s constitutional right to choose is no longer in jeopardy.”

“A threat to reproductive freedom in Texas is a threat to reproductive freedom in New Jersey,” said Acting Attorney General Bruck. “Next week, the U.S. Supreme Court will hear arguments on Texas’s abortion ban, and we are committed to fighting this unconstitutional law at every turn. I’m proud to say that today we filed New Jersey’s brief standing up for the right to choose.”

Through new briefs being filed by the parties, as well as oral argument scheduled for Nov. 1, the nation’s highest court will now consider whether healthcare clinics and/or the Biden Administration have the right to sue to block the Texas law.

As part of the new proceedings scheduled by the Supreme Court last Friday, the court will also consider the status of an injunction issued by U.S. District Court Judge Robert L. Pitman on Oct. 6 that briefly halted enforcement of the Texas law. That injunction was stayed by the U.S. Fifth Circuit Court of Appeals on October 8, clearing the way for enforcement of Texas’ abortion ban. The states have joined the federal Department of Justice (DOJ) in asking the Supreme Court to affirm and reinstate the injunction.

In a separate Supreme Court amicus brief filed earlier this month, the coalition of Attorneys General joined DOJ in asking the high court to override the Fifth Circuit and reinstate Judge Pitman’s injunction while the Administration’s challenge plays out. But last Friday the court declined to do so, deferring on the injunction request until after oral argument on November 1.

Chief among the states’ arguments for an immediate halt to enforcement of the law is that it will do “irreparable harm” to countless Texas residents and create a damaging ripple effect on other states, as those in search of abortion services seek them elsewhere. The brief filed today asserts that “such cross-border harms are already occurring” as a result of the Texas law.

The states also argue that the lives of many Texas residents who cannot afford to travel in search of abortion services will be negatively impacted by unwanted pregnancies. Those unwanted pregnancies have potential to trigger a variety of harmful economic, health, mental health and social consequences for individuals, and for communities at large.

The Texas law (S.B. 8) bans most abortions after approximately six weeks, and contains no exceptions for pregnancies that result from rape, sexual abuse and incest, or for pregnancies involving a fetal defect incompatible with life after birth.

Under the law, private parties are allowed to recover a minimum of $10,000 from individuals who facilitate an abortion prohibited by the law, including anyone who performs or induces a prohibited abortion, anyone who aids or abets the performance or inducement of a prohibited abortion, and anyone who intends to participate in a prohibited abortion.

The multi-state coalition refers to Texas’ granting of enforcement powers to private citizens – and not state officials – as an evasive “scheme” employed for the purpose of “trampling constitutional rights under the color of state law.”

Judge Pitman, the federal judge who issued the preliminary injunction, agreed.

In granting the injunction, Judge Pitman wrote that, “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

Not only does today’s amicus brief address the unconstitutionality of S.B. 8, but it also describes the problems inherent in its unprecedented enforcement scheme.

In the brief , the participating Attorneys General note that they reject as unlawful Texas’ attempt to “evade federal court review of this plainly unconstitutional law by purporting to vest enforcement authority in private individuals rather than state officials, offering people with no connection whatsoever to any particular abortion a $10,000 minimum bounty per abortion.”

Today’s filing is the latest in New Jersey’s continuing support of federal efforts to invalidate the Texas abortion law.

In September, Acting Attorney General Bruck joined in the filing of an amicus brief with the U.S. District Court supporting DOJ’s lawsuit and asserting that Texas’ law “represents a new and dangerous frontier.” At its core, New Jersey and the other participating states asserted in that September filing, the law represents “open and purposeful disregard” of precedent set in Roe v. Wade, and in another, more recent U.S. Supreme Court case, Planned Parenthood v. Casey.

The September brief also asserted that if Texas’s law is upheld and additional states ultimately use similar strategies to enact “copycat” laws placing similar strictures on most abortions, it could have disastrous consequences for the nation.

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