On October 14, the conservative United States Court of Appeals for the Fifth Circuit formally blocked a trial court’s decision halting SB 8, a Texas law banning most abortions in that state. On Monday, the US Justice Department, which sued to halt the Texas law, sought review of the Fifth Circuit’s thinly reasoned, single-paragraph order in the Supreme Court.

The Supreme Court, where Republican appointees hold a 6-3 supermajority, is unlikely to do anything to restore abortion rights in Texas. Last month, a 5-4 Court handed down its own thinly reasoned, single-paragraph order permitting the Texas law to take effect. The Court also plans to hear a case in December, Dobbs v. Jackson Women’s Health Organization, which asks the justices to overrule Roe v. Wade altogether.

But there are some important legal distinctions between the current challenge to SB 8, known as United States v. Texas, and the Court’s previous order in Whole Woman’s Health v. Jackson allowing SB 8 to take effect. Specifically, the Justice Department argues in its request for relief that the United States is allowed to sue Texas directly, even if private parties may not.

The Texas law was specifically drafted to evade judicial review. Ordinarily, a plaintiff who wishes to challenge a state law in federal court must sue the state official charged with enforcing that law. If a state law requires police to block access to abortion clinics, for example, a clinic might sue the chief of police charged with carrying out this law.

But SB 8, written to sidestep that kind of legal challenge, explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. The idea is that, if no state official can enforce the law, abortion rights plaintiffs have no one to sue.