The Biden administration sued Texas Thursday over the state’s near-total ban on abortion, part of a broader effort by the federal government to fight against the most extreme abortion regulations to take effect since Roe v. Wade—though the lawsuit could be complicated by the law’s novel enforcement approach designed to make it harder for the courts to strike it down.
U.S. Attorney General Merrick Garland announced the Department of Justice had sued Texas because the law violates U.S. Supreme Court precedent stipulating that abortion is legal, alleging the law violates the Constitution’s Supremacy Clause and the 14th Amendment, “is preempted by federal law and violates the doctrine of federal immunity.”
Garland also said the Texas law conflicts with federal law by undercutting federal agencies’ authority and preventing from carrying out certain responsibilities, as well as leaving federal officials open to legal liability, including at such departments as the Department of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and Medicaid Services and the Office of Personnel Management.
The Texas law, Senate Bill 8 (SB 8), blocks all abortions after a “fetal heartbeat” is detected—a term medical experts criticize as factually misleading—which is approximately six weeks into a pregnancy.
The law is expected to be harder to strike down in court than other abortion bans because it can only be enforced by private citizens bringing lawsuits against anyone that “aids and abets” an abortion, rather than the government.
The U.S. Supreme Court, for instance, upheld the law by ruling it was too soon to challenge it in court, since it was unclear the defendants in the case “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
“The United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” Garland said Thursday, arguing the law’s “scheme” to allegedly deny people their constitutional rights is “one that all Americans, whatever their politics or party, should fear.”
Anti-abortion Texas Right to Life criticized the DOJ’s reported lawsuit ahead of its filing, saying in a statement Thursday the agency “will quickly find that they do not have jurisdiction to stop the Texas Heartbeat Act.”
President Joe Biden vowed his administration would take a “whole-of-government effort” to combat the law the day after it took effect on September 1, including directing agencies to determine what “legal tools” the U.S. Department of Justice could use to help fight back against the law. U.S. Attorney General Merrick Garland then said the DOJ was “urgently” exploring “all options” to defend against the Texas law—which other states are expected to copy—as well as stepping up enforcement of the Freedom of Access to Clinic Entrances Act (FACE Act), which bars efforts to “injure, intimidate or interfere” with people seeking or providing abortions. Congress is also taking action against the law, as House Speaker Nancy Pelosi has vowed to hold a vote on the Women’s Health Protection Act, which would enshrine the right to an abortion in federal law.
Though it failed at the U.S. Supreme Court, abortion advocates have had wins in several smaller legal challenges against SB 8. An individual plaintiff was granted a temporary restraining order that blocked anti-abortion group Texas Right to Life from bringing any lawsuits against her under the law, and a court also temporarily barred Texas Right to Life—which helped draft SB 8—from suing Planned Parenthood under the law. Legal experts cited by the Associated Press said those rulings emphasize the trickiness of challenging the law in court, however, since they’re so narrowly tailored they can’t stop any other groups from bringing lawsuits under the law. Texas Right to Life largely shrugged off the Planned Parenthood ruling in a statement, noting the organization remains “undaunted.” “Planned Parenthood can sue us, but they can’t sue every Texan,” the group said in a press release.
Biden Administration Prepares to Sue Texas Over Abortion Law (Wall Street Journal)
Fighting Texas abortion law could be tough for federal gov’t (Associated Press)
Biden Vows Action Against Texas Abortion Ban With ‘Whole-Of-Government Effort’ (Forbes)
Justice Department Will ‘Protect’ Women Seeking Abortions Under Texas Abortion Ban (Forbes)
Twice As Many Democrats Say Abortion A Top Voting Issue In Wake Of Texas Ban, Poll Finds (Forbes)