Biden administration to ask Supreme Court to stop enforcement of Texas’ near-total abortion ban

The Biden administration will ask the U.S. Supreme Court to stop enforcement of Texas' near-total abortion ban, according to a Friday statement from a U.S. Department of Justice spokesperson.

Courts have pingponged back and forth on the law's enforceability over several weeks. The Justice Department's move comes after a panel of federal appellate judges ordered late Thursday that the ban will remain in place while its constitutionality is decided.

The law, commonly known as Senate Bill 8, bans abortions as early as six weeks into a pregnancy, before many know they are pregnant. Because of how it was written, SB 8 has been able to largely flout the constitutional right to have an abortion before fetal viability.Under the law, enforcement of the new restrictions is left to private citizens instead of state officials by allowing anyone to file lawsuits against people who perform or assist someone in getting an abortion. People or groups that are successfully sued can face penalties of at least $10,000.

In addition to their order Thursday leaving the ban in place, the three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law. Arguments in that case are expected to start in December.

The 5th Circuit's decision followed a U.S. district judge's ruling that briefly blocked the law's enforcement last week.

"We are confident Texas will ultimately defeat these attacks on our life-saving efforts," said Kim Schwartz, communications director for the anti-abortion organization Texas Right to Life, in a statement late Thursday.

After the appellate court's decision last night, some abortion providers spoke out against it.

"The Supreme Court needs to step in and stop this madness. It's unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas," Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law's enforcement in a 5-4 vote.

Abortion advocates remain unsure of what the Supreme Court will do and if it will ultimately uphold the precedent of Roe v. Wade's landmark decision in a case out of Mississippi that the court will begin hearing Dec. 1.

A Mississippi law could be what ends Roe v. Wade

As the battle over Texas' law that effectively bans abortions six weeks into pregnancy plays out in the courts, advocates on both sides are closely watching a highly anticipated Mississippi case heading to the U.S. Supreme Court.

Anti-abortion advocates see an opportunity for the conservative-leaning high court to overturn Roe v. Wade, allowing Texas to end the practice outright. But reproductive rights groups are holding out hope that the court affirms abortion rights in a way that overrides elements of Texas' new law.

Mississippi passed a law in 2018 attempting to prohibit all abortions after 15 weeks, challenging Roe v. Wade's landmark 1973 decision that legalized the procedure nationwide before fetal viability, which is around 24 weeks of gestation. The state law never went into effect because a federal appellate court blocked its enforcement.

Courts haven't blocked Texas' more restrictive law in the same way, because the state doesn't enforce it. Instead, the law relies on private citizens to enforce the law by suing providers and others who help Texans access abortions.

Legal experts say the court is likely to make a narrower ruling, rather than overturning Roe v. Wade, which means it could strike down the Mississippi ban without touching Texas' law at all. If the court were to overturn Roe, however, it could lead "trigger laws" across 12 states — including Texas — that ban all abortions to go into effect.

The uncertainty around access to abortion in Texas partially stems from the unprecedented makeup of the high court, which is the most conservative it has been since at least the 1930s, said Josh Blackman, a constitutional law professor at South Texas College of Law.

"The [Mississippi] case is a promising opportunity for the pro-life movement to have the biggest Supreme Court win since 1973," said John Seago, legislative director for anti-abortion group Texas Right to Life. "We are optimistic."

The Center for Reproductive Rights is representing both Texas and Mississippi abortion providers in their cases. The court will hear oral arguments on Dec. 1 for the Mississippi case, Dobbs v. Jackson Women's Health Organization, but the ruling may not come out until June.

State Innovation Exchange, a progressive advocacy group, submitted a filing with almost 900 state lawmakers from across the country, including Texas, in support of upholding Roe v. Wade.

"Previously, amicus briefs have had a sway with the courts," said Jennifer Driver, senior director of reproductive rights for State Innovation Exchange. "But the makeup of the court looks completely different, and we're just in a different time. It's just harder to say what the amicus brief's impact will do."

State Rep. Jasmine Crockett, a Dallas Democrat who was among the lawmakers supporting Roe, said the culmination of threats against abortion protections has made her nervous.

"A lot of things we do as lawyers, many lawmakers and even activists is we look for clues," she said. "The Supreme Court really gave us a terrible clue of where their interest lies right when they decided not to stop the imposition of [Senate Bill 8]."

On Thursday, conservative Supreme Court Justice Samuel Alito Jr. defended the court's refusal to block the Texas law while stressing that the action was not tantamount to a rejection of Roe v. Wade.

"Put aside the false and inflammatory claim that we nullified Roe v. Wade," Alito said in a speech at the University of Notre Dame. "We did no such thing. And we said that expressly in our order."

Texas abortion providers have continuously asked the Supreme Court to block the law's enforcement, but so far, it has denied their appeals.

"In allowing that ban to go into effect earlier this month, the Supreme Court was clear that it was not ruling on the merits," said Jenny Ma, a senior attorney at the Center for Reproductive Rights, in a written statement. "It is hard to say how a decision in [the Mississippi case] may impact Texas. ... Anti-abortion politicians designed the Texas law this way to try to insulate it from federal court review."

Both the Texas and Mississippi laws continued decades of conservative state legislatures' attempts to push the boundaries of Roe v. Wade. The Supreme Court has routinely struck down these state laws that have attempted to increase regulations for abortion providers or shorten the window for getting the procedure.

Now, the court's decision making has become less predictable.

"If the Supreme Court were to rule in a way in the Mississippi case that says any pre-viability ban is unconstitutional, then SB 8 may not be allowed to stand, depending on how they sort out [the enforcement component]," said Kari White, an associate professor of social work and sociology at the University of Texas at Austin who studies reproductive health policies.

But the unique enforcement provision, which relies on private citizens instead of state officials, stopped the Supreme Court from blocking the law in early September.

"If the court decides to uphold Roe, then the Mississippi law falls," Blackman said. "But the Texas law, I think, will have to be resolved on different grounds."

Blackman said this could involve more complex solutions, such as the Supreme Court stopping Texas judges from hearing lawsuits brought under Senate Bill 8. He also said a ruling on the Texas law may come around the same time as the Mississippi case because of pressure from the Department of Justice lawsuit against Texas.

A potential Supreme Court ruling on Texas' law has become more consequential as a Florida lawmaker has filed a similar bill to restrict abortions that includes an authorization of "private civil cause of action for certain violations."

But if Roe v. Wade is overturned, trigger laws would eradicate most access to abortion in some states within months.

"There would be huge swaths of the country, particularly in the Deep South of the midwestern United States, where we would expect people to lose access to abortion," White said. "They would have to travel hundreds and hundreds of miles to another state in order to be able to get abortion care."

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Texas governor calls for stiffer penalty for illegal voting — weeks after he signed a bill lowering it

Gov. Greg Abbott on Thursday called for Texas lawmakers to increase the penalty for illegal voting — less than a month after he signed a bill that lowers the maximum punishment.

The crime of illegal voting was scheduled to go from a second degree felony to a Class A misdemeanor in December, after the passage of Senate Bill 1, a sweeping bill that restricted the state's voting process and narrowed local control of elections.

Class A misdemeanors are punishable by up to a year in jail, but can be resolved with a fine. A second degree felony in Texas is punishable by up to 20 years in prison.

But in a letter to the Texas Senate on Thursday, Abbott added legislation that would reverse that change to the list of items lawmakers can consider during the current special session of the Legislature.

"The State of Texas has made tremendous progress in upholding the integrity of our elections," Abbott said in a press release. "By increasing penalties for illegal voting, we will send an even clearer message that voter fraud will not be tolerated in Texas."

The move received praise from Lt. Gov. Dan Patrick, who presides over the state Senate. He said on Twitter that the Senate will pass a bill with that aim next week. Patrick also said in his tweet that the House added the amendment lowering the penalties "last minute" and that the change "went under the radar until" Abbott, Attorney General Ken Paxton and Patrick "found it & agreed that it must be corrected."

The amendment originally came from Rep. Steve Allison, a San Antonio Republican. It was approved in the House on an 80-35 vote. The bill was then sent to a conference committee and the final version was approved in the Senate with the support of all the Republicans in the chamber.

Neither Patrick nor Abbott were available for immediate comment about the announcement.

Earlier this month, House Speaker Dade Phelan told the Houston Chronicle that the Allison amendment was part of the Legislature's "holistic approach to advancing election integrity" that struck "the appropriate balance between ballot access and accountability." Phelan implied he disagreed with the governor's choice in a tweet late Thursday, asserting that now "is not the time to re-litigate."

Harsh penalties for voting fraud in Texas have gained national attention in recent years, particularly in the case of Crystal Mason, a Tarrant County woman facing a five-year sentence for a ballot she has said she did not know she was ineligible to cast.

Another amendment focused on penalties for voter fraud specifically addressed Mason's case, but was stripped during another conference committee after author Sen. Bryan Hughes disapproved of the language.

The state's Republican leadership has gone to considerable lengths to add new restrictions to voting and root out perceived election fraud in the state, even though there have been no credible allegations of widespread fraud in the 2020 elections and the top elections officials for the Secretary of State's office told lawmakers that the voting was "smooth and secure."

In addition to lowering penalties for illegal voting, SB 1 establishes new ID requirements for voting by mail, enhances protections for partisan poll watchers and sets new rules, and possible criminal penalties, for those who assist voters. It also makes it a state jail felony for local election officials to proactively distribute applications for mail-in ballots, even if they are providing them to voters who automatically qualify to vote by mail or groups helping get out the vote.

This week, Abbott has pushed an audit of the general election of 2020 in four Texas counties — Harris, Collin, Dallas and Tarrant — after former President Donald Trump urged him to add audit legislation to the special session agenda.

Local officials said they were in the dark about the process, which Abbott later claimed had already begun as the audit's guidelines covered some of the standard post-election procedures local officials are already required to undertake.

Texas caves to Trump and will conduct 'full forensic audit' in three counties Biden won

The Texas secretary of state's office announced late Thursday that it has begun a "full forensic audit" of the 2020 general election in four Texas counties: Collin, Dallas, Harris and Tarrant. But the statement from that agency did not explain what prompted the move.

There has been no evidence of widespread voter fraud in Texas in 2020. And earlier this year, an official for the agency called the 2020 election in Texas "smooth and secure."

Sam Taylor, a spokesperson for the office, did not immediately respond to a request for comment. No elections officials in the four counties immediately responded for comment.

The announcement came hours after Republican former President Donald Trump requested Gov. Greg Abbott add an election audit bill to this year's third special session. While Trump lost his reelection bid, he did win in Texas.

It was unclear if his request spurred the announcement from the secretary of state's office. Texas does not currently have a secretary of state. Former Secretary of State Ruth Ruggero Hughs, who oversaw the 2020 elections, resigned when the Texas Senate refused to confirm her appointment. Abbott has not yet picked a replacement. A spokesperson for the governor did not immediately respond to a question about the audits late Thursday.

Taylor's press release said the agency has "already begun the process in Texas' two largest Democrat counties and two largest Republican counties—Dallas, Harris, Tarrant, and Collin." While Tarrant has long been a Republican stronghold, Democratic President Joe Biden narrowly beat Trump there, according to the county's election results. The release said the agency expects the Legislature to provide funds for the audits. It did not describe what the audits entail.

Trump has pushed baseless claims of massive voter fraud for months since he lost the election last year — as he did after winning in 2016 — and has mounted numerous legal challenges to the certification of the 2020 election's results.

Many Texas Republicans have echoed or supported Trump's efforts to cast doubts on the election. But few Texas voters actually believe voting fraud is common, with only 19% believing ineligible people frequently cast ballots, according to a University of Texas/Texas Tribune Poll from June.

Before Trump's term ended, Texas Attorney General Ken Paxton sued four battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — whose election results handed the White House to Biden. The U.S. Supreme Court briskly rejected the long-shot case.

U.S. Rep. Louie Gohmert, R-Tyler, filed a far-fetched lawsuit asking Vice President Mike Pence to challenge Joe Biden's legitimacy as president-elect. After a federal court tossed it, the Texas Republican appeared to propose violence in response.

On Jan. 6, as Congress prepared to certify the results of the election, Trump again falsely claimed at a rally in the nation's capital that he had won a second term. After that gathering, a mob of pro-Trump rioters clashed with police, scaled the U.S. Capitol walls, and violently forced their way into lawmakers' offices and onto the floors of the House and Senate.

Some Texas Republicans denounced the Capitol insurrection, but they didn't acknowledge their role in stoking false claims about the election that led to the day's violence.

Paxton made an appearance at the Jan. 6 rally before the insurrection, but his office refused to release records of his text messages and emails from that day to media outlets. Since then, the U.S. House committee investigating the siege has specifically requested Paxton's communications.

In a series of legislative sessions that began in January, Texas Republicans pushed for legislation to restrict voting access in the name of election integrity, despite no evidence of widespread voter fraud. And after three legislative sessions and dramatic Democratic quorum breaks meant to stop legislation, Abbott signed a sweeping bill into law in September that will tighten state election laws and limit counties' abilities to expand voting options. It took particular aim at voting initiatives used in Harris County, one of the largest and most diverse that voted Democratic in 2020 by banning overnight early voting hours and and drive-thru voting.

Rep. Chris Turner, D-Grand Prairie, responded to the secretary of state office's announcement on Twitter late Thursday.

"Let me be the first to congratulate the disgraced former president, Donald Trump, on his apparently becoming the new governor of Texas," Turner tweeted. "Pitiful yet predictable that @GregAbbott_TX has capitulated to Trump yet again."

Patrick Svitek contributed to this story.

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