The United States Department of Justice has moved to vacate the stay entered by the Fifth Circuit in the U.S. challenge to the Texas SB 8 law which bars abortions after six weeks gestation. Texas claims that its law bars any state agent from enforcing the ban, turning the matter over to private litigants seeking reward. But only a judge can enter judgment rewarding bounty seekers. After the United States Supreme Court allowed the law to go into effect in Whole Women's Health, federal judge Robert Pittman enjoined Texas judges from enforcing the law.
Now the USA has moved to vacate the stay of Judge Robert Pitman's preliminary injunction.
Steve Vladeck (UT Austin) notes that the U.S. has suggested the Court grant cert before judgment, and schedule the case for briefing and argument. Makes sense. The law is unconstitutional on its face. Of course as lawmakers, not umpires, the Justices could change that and likely will in Dobbs v. Jackson Women's Health, the Mississippi fifteen week abortion ban case which will soon be argued.
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