24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban

AUSTIN, TX - SEPTEMBER 11: Abortion rights activists rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. Texas Lawmakers recently passed several pieces of conservative legislation, including SB8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, usually between the fifth and sixth weeks of pregnancy. (Photo by Jordan Vonderhaar/Getty Images)
AUSTIN, TX - SEPTEMBER 11: Abortion rights activists rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. Texas Lawmakers recently passed several pieces of conservative legislation, including SB8,... AUSTIN, TX - SEPTEMBER 11: Abortion rights activists rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. Texas Lawmakers recently passed several pieces of conservative legislation, including SB8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, usually between the fifth and sixth weeks of pregnancy. (Photo by Jordan Vonderhaar/Getty Images) MORE LESS
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September 15, 2021 6:48 p.m.

Twenty-four Democratic attorneys general made clear that they support the Justice Department’s legal challenge against Texas’ anti-abortion law in an amicus brief filed Wednesday.

In their amicus brief, the group led by Massachusetts Attorney General Maura Healey argued that Texas’ new six-week abortion ban is in “direct contravention” of the Supreme Court precedent affirming the constitutional right to terminate a pregnancy prior to viability, which the court recognized in its 1973 decision in Roe v. Wade.

“Today, virtually no one can obtain an abortion in Texas,” the brief reads. “In order to obtain abortion care, patients now have to travel out-of-state, which makes abortion for many people too difficult, too time-intensive, and too costly.”

The group noted that residents of their respective states may require an abortion while in Texas, which could include workers, visitors or students from out of state.

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Additionally, they expressed concerns for Texans who are now seeking abortions outside of the Lone Star state as a result of a ban, and how that could potentially add more burdens onto already strained health care systems in their states.

“In New Mexico, for example, an influx of patients from Texas has already strained provider resources and made it more difficult for New Mexico residents to receive timely care,” the brief reads. “Similar impacts are being seen or expected to be seen in other Amici States, including California, Colorado, Illinois, and Nevada.”

The amicus brief’s Wednesday filing was issued after the Justice Department filed an emergency request late Tuesday night to freeze Texas’ anti-abortion law. Instead of immediately acting on the request, U.S. District Judge Robert L. Pitman agreed to the state’s request to hear arguments before ruling, and scheduled a hearing on Oct. 1 to consider temporarily blocking Texas’ six-week abortion ban.

The DOJ’s emergency request follows its lawsuit against the state of Texas last week over its anti-abortion law that the Supreme Court declined to block.

The DOJ’s lawsuit, which was filed in Austin last week, seeks a judgment deeming the law invalid under the Supremacy Clause and the Fourteenth Amendment, and for an order blocking anyone from carrying it out.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review,” the DOJ’s lawsuit reads. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

The DOJ’s lawsuit also took aim at the Texas law for allowing individuals from anywhere in the country to sue anyone who performs post-six week abortions, or who “aids or abets” it — which could net the plaintiff a $10,000 bounty and all legal fees paid for by the defendant.

“It takes little imagination to discern Texas’s goal—to make it too risky for an abortion clinic to operate in the State,” the DOJ’s lawsuit reads.

The DOJ’s lawsuit claims that the state is the rightful defendant.

“The United States therefore may sue a State to vindicate the rights of individuals when a state infringes on rights protected by the Constitution,” the DOJ’s lawsuit reads. “Such an effort is particularly warranted where, as here, private citizens are—by design—substantially burdened in vindicating their own rights.”

Prior to the announcement of the DOJ’s lawsuit, Attorney General Merrick Garland said that the DOJ will work with law enforcement to ensure the safety of abortion clinics while exploring “all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion,” citing the FACE Act — which prohibits the use of threats and physical obstruction to deter someone from seeking reproductive health services.

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