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DOJ sues Texas over its 'clearly unconstitutional' 6-week abortion ban

‘Texas enacted S.B. 8 in open defiance of the Constitution,’ the Department of Justice wrote in its complaint.

By Lisa Needham - September 10, 2021
Attorney General Merrick Garland

Eight days after the U.S. Supreme Court let S.B. 8, the most restrictive abortion ban to date, go into effect in Texas, the Department of Justice has sued the state, with Attorney General Merrick Garland announcing in a press conference Thursday, “The act is clearly unconstitutional under long-standing Supreme Court precedent.”

The case was filed in the federal district court in Austin. Initially assigned to Judge Lee Yeakel, a George W. Bush appointee, it was changed to Judge Robert Pitman, a Barack Obama appointee. 

In its complaint, Biden’s DOJ lays down a clear marker, stating that, “Texas enacted S.B. 8 in open defiance of the Constitution.”

The lawsuit seeks a declaratory judgment from the federal district court, where the court would declare Texas’s law to be invalid. The lawsuit also asks the court to issue an injunction against the state and any private parties who would sue under the law. 

Were the DOJ to succeed, that would undo the signature portion of the law that Texas saw as insulating it from litigation. S.B. 8 outsources enforcement of the law to private citizens, allowing them to engage in bounty-style lawsuits where they collect $10,000 from anyone who “aids or abets” an abortion after six weeks. That assertion formed one of the state’s central arguments to the Supreme Court as to why it couldn’t be held liable and why the law shouldn’t be blocked. 

Indeed, the DOJ’s complaint takes specific aim at Texas’s motivations for the private enforcement scheme, saying that, “[i]t takes little imagination to discern Texas’s goal–to make it too risky for an abortion clinic to operate in the State […] while simultaneously thwarting judicial review.” 

Unfortunately, the path forward for the DOJ is not great, even if they prevail in the district court. Any appeal would go to the Fifth Circuit Court of Appeals, arguably the most conservative federal court of appeals. From there, of course, it would be up at the Supreme Court, where a 6-3 anti-abortion majority is firmly entrenched. 

However, the DOJ lawsuit gives courts several options to find Texas’s law unconstitutional. The most obvious one is that S.B. 8 violates the Fourteenth Amendment by creating a private enforcement scheme that prohibits women and abortion providers from vindicating their own rights in court, which they’re constitutionally entitled to do. Since Texas “deliberately impeded” that, the federal government is required to step in to ensure Texas “respects its obligations under the Constitution.”

Another point raised by the DOJ strikes at the heart of Texas’s private enforcement scheme. The Supreme Court, the DOJ notes, has found that people are “state actors” when exercising powers usually reserved for the government. S.B. 8 outsources law enforcement to private individuals, thus possibly making them state actors. And, if they are state actors, they can be liable. 

The DOJ also argues that the prohibition against “aiding or abetting” an abortion is so broadly written that it implicates a number of federal agencies and employees. For example, the complaint notes that the Department of Labor Job Corps requires the people in the program to have access to pregnancy-related services, including abortion. This means that job corps workers must be provided transportation to medical appointments, presumably including abortions. Those federal employees or contractors would run afoul of the prohibition against aiding or abetting while enacting a duty they are required by law to do — provide transportation to medical appointments. 

The same problems arise with several other federal agencies and their employees, including the Bureau of Prisons and the Office of Refugee Resettlement. This, the DOJ alleges, implicates intergovernmental immunity. The Texas law essentially puts federal employees at criminal and civil risk for performing some duties they are required to perform, which isn’t permissible. 

The lawsuit represents a concerted effort by the Biden administration to stand up for abortion rights. It also likely serves as somewhat of a preview as to how the DOJ might argue if it intervenes in Dobbs v. Jackson, the lawsuit over the constitutionality of Mississippi’s 15-week pre-viability ban. 

In challenging Texas’s law, the DOJ argues that even cases after Roe v. Wade, such as Planned Parenthood v. Casey, still found that there was an absolute constitutional right to an abortion before viability. And, as much as Texas and Mississippi hope it would be otherwise, those cases are still the law of the land. 

Published with permission of The American Independent Foundation.

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