Texas abortion law supporters say states can reach own conclusions about constitutionality

WASHINGTON — Lawyers for supporters of the Texas abortion law told a federal appeals court Thursday that the state was free to pass its law banning abortion after about six weeks because states can reach their own conclusions about whether abortion if constitutional.

The filing in the 5th U.S. Court of Appeals completed the exchange of briefs in the Justice Department’s lawsuit challenging the state law, known as Senate Bill 8. The next step will be a ruling from the appeals court on whether to lift its stay of a district judge’s order that blocked the law. The appeals court stay allowed the law to go back into effect.

The lawyers for intervenors in the case supporting Texas said that while states are bound by the text of the Constitution, they need not follow Supreme Court rulings about constitutional rights.

“The Supreme Court’s interpretations of the Constitution are not the Constitution itself – they are, after all, called opinions. The federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s, and they have every prerogative to enact laws that deprive the judiciary of opportunities to consider pre-enforcement challenges to their statutes.”

“Abortion is not a constitutional right; it is a court-invented right that may not even have majority support on the current Supreme Court,” they said.

Abortion rights supporters gather Oct. 2 at the Texas State Capitol in Austin.Stephen Spillman / AP

States don’t violate the constitution “by undermining a ‘right’ that is nowhere to be found in the document, and that exists only as a concoction of judges who want to impose their ideology on the nation,” they continued.

Their legal brief said the state enacted S.B. 8 in response to Roe v. Wade, a Supreme Court ruling that has no textual support in the Constitution, is the most controversial decision from the court in the past 50 years and which the current court is considering overruling.

In reply to the Justice Department’s warning that upholding S.B. 8 would encourage other states to pass laws that violate constitutional rights, the lawyers said it’s unlikely that states would do so “against better-reasoned Supreme Court rulings or against doctrines that enjoy strong support among the current justices.”

The appeals court will likely rule on whether to lift the stay in the next several days.

CORRECTION (Oct. 14, 2021, 7:09 p.m. ET): A previous version of this article misstated who expressed a position on a state’s ability to ignore Supreme Court rulings in a new federal court filing in a case involving Texas’ abortion law. The views in the filing were expressed by lawyers supporting the state of Texas, not by the state.


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