ACLJ Files Brief With Supreme Court Defending Texas Heartbeat Bill Ahead of Looming Oral Argument


Laura Hernandez


October 29, 2021

3 min read

Pro Life

President Biden and the abortion lobby are desperately trying to block a lifesaving new Texas law that would essentially shut down abortions statewide.

Earlier this week, the American Center for Law and Justice (ACLJ) filed an URGENT amicus brief with the Supreme Court of the United States in two cases challenging the Texas Heartbeat bill – one brought by the abortion industry and the other brought by President Biden’s Department of Justice (DOJ).

The unique lifesaving Texas law – which the ACLJ actually submitted written testimony regarding, as the Texas legislature considered the legislation – bans abortions after a baby’s heartbeat is detected. Texas cleverly structured the law, however, to ensure that abortionists couldn’t stop the law from going into effect. Instead, the law allows private citizens to enforce the law by suing abortion clinics who perform abortions that violate the law.  And since the abortion clinics couldn’t predict who would sue them, they couldn’t name the right defendants in court.

But of course that didn’t stop them. The abortion industry sued anyway and after winning at the district court level, they lost in the Court of Appeals for the Fifth Circuit. The Fifth Circuit reinstated the law, holding that the clinics could not sue to stop enforcement of the law in federal court because the defendants they sued had no authority to enforce the law. The clinics then asked the Supreme Court to step in and grant emergency relief, but as we reported, the Supreme Court refused.

Not to be deterred, abortionists then asked the Supreme Court to hear the case on the merits. Meanwhile we told you how President Biden’s DOJ joined the fight as well, filing a lawsuit to block the law. They also asked the Supreme Court to hear the case on the merits. They then also asked the Supreme Court to hear the case on the merits.

As we recently reported, the Supreme Court granted review and set an expedited briefing schedule, asking all parties and amici to file briefs within five days.  With your support, the ACLJ just filed an amicus brief supporting the Texas Heartbeat law. We explained that neither the clinics nor the DOJ had authority to sue in federal court to stop enforcement of the Texas law. We emphasized the indefensibility of bringing a federal case to stop private citizens from suing each other in state court. We also urged the Court not to create an exception to the jurisdictional rules governing who can sue in federal court. “Creating an abortion exception to constitutional limits on federal subject matter jurisdiction would be a frontal assault on a core feature of federalism: comity between federal and state judicial courts.”

We also argued further that creating an exception for the abortion industry would add to the ever-growing list of legal rules that have been bent in favor of the right to abortion – something we’ve long called the abortion distortion. As stated in our brief:

Petitioners’ insistence that Article III limits on federal jurisdiction be stretched to permit their pre-enforcement challenge in this case should be rejected for what it is: further metastasis of “abortion distortion.” See Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 814 (1986) (O’Connor, J., dissenting) (“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence.”); id. (noting that it is “painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion”); see also Stenberg v. Carhart, 530 U.S. 914, 954 (2000) (Scalia, J., dissenting) (noting this Court’s tendency “to bend the rules when any effort to limit abortion . . . is at issue”); June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2153 (2020) (Alito, J., dissenting) (The “right” to abortion has been used “like a bulldozer to flatten” other legal rules that “stand in the way.”).

Oral argument will be heard Monday, November 1st.  We expect a quick ruling from the Court on whether the abortion industry and the Biden Administration can ignore federal jurisdictional rules in their effort to protect the right to kill babies.

With your ongoing support, we will continue to fight against abortion until the Supreme Court overrules Roe v. Wade – something that is directly before the Court in a little more than a month’s time (and you can learn more about our work in that critical case here).