Justice Department Mounts Legal Challenge To Texas Abortion Ban

WASHINGTON, DC - AUGUST 05: U.S. Attorney General Merrick Garland (Photo by Kevin Dietsch/Getty Images)
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September 9, 2021 3:40 p.m.

The Justice Department sued the state of Texas Thursday over its new six-week abortion ban, which the Supreme Court declined to block last week.

“The United States has the authority and responsibility to ensure that no state can deprive the individual of constitutional rights through a legal scheme specifically designed to prevent the vindication of those rights,” Attorney General Merrick Garland said in a Thursday press conference announcing the lawsuit. Texas is the only named defendant in the lawsuit.

Garland said that the risks of the Texas anti-abortion law are clear, both in that other states will likely draw up copycat laws and in the nature of the Texas law specifically encouraging individuals to “infringe on others’ constitutional rights.” 

The lawsuit, filed in Austin Thursday afternoon, 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. 

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“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 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 law provides a cash prize for successful suits on the order of at least $10,000, plus reimbursed legal fees. The defendants get neither if the suit is unsuccessful. The bounty thus heightens the risk in waiting to challenge the law until an individual in Texas uses it to sue people who helped a woman get a now-illegal abortion, since the defendants will then be risking potentially ruinous financial ramifications.

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

The suit then points to the real-time ramifications of the law, as Texas abortion clinics have shuttered rather than risk the $10,000-plus penalty, sending desperate women to suddenly-overrun abortion clinics in neighboring states.

The law also deputizes individuals in Texas to sue anyone who “aids and abets” or even intends to aid and abet a post-six week abortion — making it extremely difficult to know who to sue in preemptively challenging the law.

In the DOJ lawsuit, the attorneys claim 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 lawsuit said. “Such an effort is particularly warranted where, as here, private citizens are—by design—substantially burdened in vindicating their own rights.”

The DOJ attorneys also wallop the law for vesting individuals with “law-enforcement authority,” calling the move “unprecedented” and a “transparent effort to evade constitutional scrutiny.”

The lawsuit lists an extensive number of federal government workers and contractors who will suddenly become liable under the Texas law, due to programs or agencies involving health care assistance. One example the attorneys list is the Bureau of Prison’s obligation to help inmates get constitutionally protected abortions.

Garland had previously said that the DOJ was “exploring all options” to beat back the Texas law and was eager to protect people using the FACE Act — which prohibits the use of threats and physical obstruction to deter someone from seeking reproductive health services — in the meantime. 

Most of the conservative contingent of the high court allowed the Texas law to stand in a long, unsigned paragraph last week. They declined abortion providers’ emergency motions to block the law due to its purposefully odd enforcement structure. 

The liberal justices, alongside Chief Justice John Roberts, wrote scathing dissents. Justice Sonia Sotomayor in particular accused her colleagues of “burying their heads in the sand” to let the “flagrantly unconstitutional” law stand. 

The Court made its decision using the “shadow docket,” a forum once reserved for questions requiring immediate answers, like death penalty cases. The conservative Court, however, has become increasingly comfortable using it to decide complex, even controversial, questions without the benefit of full briefings and oral arguments. 

The law, which bans abortions at a point before many know that they’re pregnant, flies in the face of precedent established in Roe v. Wade and Casey v. Planned Parenthood. 

The Supreme Court decision sent a ripple of panic through Democrats nationwide, who scrambled to find a legislative solution. But options like expanding the Supreme Court or enshrining abortion rights in law lack sufficient support within the Democratic caucus, much less the 10 Senate Republican votes needed to overcome the filibuster. 

Read the lawsuit here:

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