"The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit's stay of the preliminary injunction against Texas Senate Bill 8," said Anthony Coley, the department's chief spokesman.
The U.S. Court of Appeals for the Fifth Circuit late Thursday rejected the Justice Department's request to lift a stay on an order from a federal judge in Texas that had temporarily blocked the law.
Under the law, known as SB 8, the state takes no action to block abortion but allows anyone to file a civil lawsuit against abortion providers. The law was designed to make it difficult to challenge in court.
The Justice Department said Texas cannot take away the right of access to abortion without providing a means to challenge the law in court. The federal judge agreed and ordered judges in the state to take no action in response to any lawsuits filed under the law.
But the appeals court issued a temporary administrative stay on Oct. 8, which allowed Texas to put the law back into effect. That shut down nearly all abortion providers in the state, forcing women seeking treatment to travel to other states.
On Thursday, the court issued a one-paragraph order that granted the request from Texas to keep a stay in place while it considers a full appeal of the lower court ruling. It said it was acting for the reasons cited in its decision on an earlier challenge to the law.
That ruling said federal courts cannot restrain the authority of state courts to act on cases brought before them and questioned the Justice Department's authority to sue the state in the first place, given that the ban is enforced by private individuals and not state officials.
The Supreme Court declined in early September to block the law, saying the case presented several uncertainties, including whether the court had any authority to act in the case.
"We appreciate the Department of Justice moving quickly to ask the Supreme Court to intervene, and Planned Parenthood is hopeful that the Court will use this new opportunity to stop this law, which has taken too much from Texans already," said Helene Krasnoff, vice president for public policy law and litigation, Planned Parenthood Federation of America.
The justices will hear a challenge in December to Mississippi's law that would ban abortion after 15 weeks. That case presents a direct challenge to the court's abortion precedents, including Roe v Wade, which say states cannot ban abortion before fetal viability.