President Biden announced Thursday that he has directed the Department of Health and Human Services and the Justice Department to launch a “whole-of-government” effort to look for ways to protect women’s rights after the Supreme Court refused to block a Texas law banning abortions after six weeks.
The Supreme Court divided 5-4 on Wednesday, leaving the Texas abortion restriction, which went into effect the same day, in place while litigation from pro-choice groups challenging the law continues in lower courts.
The justices did not resolve whether the law halting abortions after a fetal heartbeat is detected was constitutional, but the court noted the abortion providers fighting the law’s enforcement sued defendants who are not likely to enforce the law. Lower courts are still weighing whether the law runs afoul of the U.S. Constitution.
The law bans an estimated 85% of abortions performed in the state.
Mr. Biden called the high court’s decision to let the Texas law stand “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years.”
“This law is so extreme it does not even allow for exceptions in the case of rape or incest,” the president said. “For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts.”
SEE ALSO: Supreme Court divides 5-4, leaves Texas six-week abortion ban in place
He said, “I am directing [the Gender Policy] Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision.”
Attorney General Merrick Garland said his department is “deeply concerned” about the Texas legislation.
“We are evaluating all options to protect the constitutional rights of women, including access to an abortion,” he said.
House Speaker Nancy Pelosi, California Democrat, said her chamber will take up legislation to protect reproductive health care for women nationwide.
“Every woman everywhere has the constitutional right to basic health care,” she said. “This ban necessitates codifying Roe v. Wade.”
Chief Justice John G. Roberts Jr. and the Supreme Court’s three Democratic appointees, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, would have blocked the law while the case continued in the lower courts.
“The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” Chief Justice Roberts wrote.
The legislation prohibits abortions after a fetal heartbeat is detected, usually around six weeks of gestation. Abortion providers challenged the law on an emergency appeal at the Supreme Court this week, arguing that most women do not even know they are pregnant at that time.
The Texas legislation allows private citizens, not government officials, to sue abortion providers for violating the ban. The provision makes a legal challenge harder to lodge.
The Center for Reproductive Rights, the American Civil Liberties Union and allied groups filed a lawsuit this year to block the legislation. They said it would force abortion providers to spend massive amounts of money defending themselves in court and would subject them to harassment, effectively overturning the constitutional right to abortion.
Opponents of the law sought review from the high court after lower courts refused to issue an injunction, but the justices allowed the law to take effect. Abortion providers in the state said they started turning women away at midnight Tuesday to abide by the law.
Nancy Northup, president of the Center for Reproductive Rights, said the high court’s decision violates Roe v. Wade, the 1973 landmark ruling upholding a woman’s right to an abortion.
“Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state — if they have the means — to get constitutionally protected health care. This should send chills down the spine of everyone in this country who cares about the Constitution. We will keep fighting this ban until abortion access is restored in Texas,” she said.
Critics argue that the restriction will force clinics to close. Among the defendants they are suing are state judges, clerks and Texas Attorney General Ken Paxton.
Texas Gov. Greg Abbott, a Republican, signed the legislation in May. Anyone who successfully sues someone who assists in an abortion after six weeks would be eligible to receive up to $10,000 to cover their legal expenses.
The Texas defendants filed court papers Tuesday with the high court. They argued that the abortion providers lack standing to bring the lawsuit because they can’t show the defendants caused them sufficient harm to get into court.
Penny Nance, president of Concerned Women for America, credited the conservative majority on the high court, which President Trump cemented with his three appointments.
“One important legacy of President Trump: It will be the shift in the Supreme Court,” she said.
“The strategy behind this legislation was brilliant because, at the end of the day, this drives a stake through the argument that women don’t regret their abortions,” Ms. Nance said. It will be women who had abortions and regret their decisions who will file lawsuits against the providers.
The Supreme Court’s move also gives pro-life groups hope about how the justices could rule in an upcoming case weighing Mississippi’s 15-week abortion ban. The Mississippi dispute will be heard during the court’s next term.
Ms. Nance said the Mississippi lawsuit could “change the precedent and give states much more flexibility and allow them to better reflect the views of the citizens of their state on the issue of abortion.”
Liberal activists, meanwhile, saw the 5-4 split on Texas’ abortion law as justification for expanding the Supreme Court.
“It’s long past time that Congress leveraged its checks and balances against the broken Supreme Court. Congress must rebalance the Supreme Court by passing the Judiciary Act of 2021 to add an additional four seats to the court,” said Christina Harvey, executive director of Stand Up America.
“It’s high time Democrats do what they promised they would do if voters handed them the reins: protect our fundamental rights and restore balance to our government,” she said.
Since the Supreme Court decided in 1973 that women have a right to abortion, pro-life advocates and conservative states have aimed to chip away at that ruling.
More than a half-dozen states have tried to ban abortion after six weeks, but none of those laws has gone into effect, according to the Guttmacher Institute, a pro-choice research group.
Texas has made previous attempts to restrict abortion.
In 2016, the high court struck down some of the state’s requirements on abortion providers, but more than half of the state’s abortion clinics had to close before the justices stepped in, according to The Associated Press.
Meanwhile, blue states have gone the opposite route. New York and Virginia have loosened requirements in recent years for women to obtain abortions.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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