After devoting most of his brief to procedural arguments about why the Justice Department lacked the ability to sue to block the law, Mr. Paxton took aim at the leading precedents, asking the court to overrule them if it decides to consider the department’s application.
“Properly understood, the Constitution does not protect a right to elective abortion,” he wrote, adding, “If it reaches the merits, the court should overturn Roe and Casey.”
Last month, in a bitterly divided 5-to-4 decision, the Supreme Court rejected an emergency request from abortion providers in Texas to block the law while the providers’ legal challenge moved forward. In an unsigned opinion in that separate lawsuit, the majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.
The majority wrote that its ruling “in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” Officials in Texas have said that providers can challenge the law by violating it, getting sued and asserting the law’s unconstitutionality as part of their defense.
Chief Justice John G. Roberts Jr. joined the court’s three more liberal members in dissent.
The Justice Department then filed its own challenge to the law, one that it said was not subject to the procedural barriers the providers had faced.
On Oct. 6, Judge Robert L. Pitman of the Federal District Court in Austin ruled for the federal government, granting it a preliminary injunction forbidding the state, its officials and private individuals acting in concert with them from enforcing the law.
“That other courts may find a way to avoid this conclusion is theirs to decide,” he wrote. “This court will not sanction one more day of this offensive deprivation of such an important right.”