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Texas tells court that states may reach own conclusions about abortion’s constitutionality


WASHINGTON — Texas told a federal appeals court Thursday that it was free to pass its law banning abortion after six weeks because states can reach their own conclusions about whether the procedure is constitutional.

“The Supreme Court’s interpretations of the Constitution are not the Constitution itself — they are, after all, called opinions,” lawyers for the state said. “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 on Oct., 2, 2021, at the Texas State Capitol in Austin.Stephen Spillman / AP

The filing in the U.S. Court of Appeals for the 5th Circuit 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.

Texas said that while states are bound by the text of the Constitution, they need not follow Supreme Court rulings about constitutional rights.

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,” the state’s lawyers said.

Texas said it enacted the law in response a Supreme Court ruling in Roe v. Wade 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 Texas’ law would encourage other states to pass laws that violate constitutional rights, lawyers for the state said it’s unlikely that others 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.



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