Feds sue Texas over six-week abortion ban
Justice Department warns law opens door for states to infringe on other constitutional rights
WASHINGTON — The Biden administration is suing Texas over the state’s new abortion ban — the strictest in the nation — warning that if the law is allowed to stand, it could become a model for states to trample constitutionally protected rights of all kinds.
“The act is clearly unconstitutional under long-standing Supreme Court precedent,” Attorney General Merrick Garland said as he announced the legal action Thursday. “This kind of scheme to nullify the Constitution of the
United States is one that all Americans — whatever their politics or party — should fear.”
The lawsuit comes after the Supreme Court last week voted 5-4 to deny an emergency appeal from abortion providers and others, letting the law take effect. The court, however, did not rule on the constitutionality of the law, leaving the door open to future challenges.
The law, which Texas Republicans have touted as a new national model, bans abortions once medical professionals can detect a heartbeat, usually around six weeks, a point at which most women have not realized they’re pregnant.
The law does not rely on police or prosecutors to enforce its provisions, however. Instead, it empowers private individuals to bring civil lawsuits against those who assist women in obtaining abortions outside the law’s tight time limits. Under the law, these civilian enforcers can win up to $10,000 in damages from the targets of their lawsuits.
Republican lawmakers in several other red states, including Florida, Arkansas and Indiana, have
said they plan to push legislation modeled after the Texas law.
Texas Republicans, meanwhile, were confident the law would stand.
“The most precious freedom is life itself,” said Renae Eze, spokeswoman for Gov. Greg Abbott. “Texas passed a law that ensures that the life of every child with a heartbeat will be spared from the ravages of abortion. … We are confident that the courts will uphold and protect that right to life.”
Texas Attorney General Ken Paxton said in a tweet that he “will use every available resource to fight for life.”
Jonathan Saenz, president and attorney of the conservative nonprofit Texas Values, said in a statement that “the Biden Administration is weaponizing the Department of Justice to file a fake political lawsuit with no legal basis.”
“We will fight the D.C. establishment every step of the way,” he said. s
While women’s rights groups and Democrats, including President Joe Biden, have said the law is an “unprecedented assault” on women’s rights, Garland warned that the enforcement mechanism it establishes could open the door for more states to trample on the Constitution.
“If it prevails, it may become a model for action in other areas by other states and with respect to other constitutional rights and precedents,” Garland said. “Nor need one not think long or hard to realize the damage that would be done to our society if states were allowed to implement laws and empower any private individual to infringe on another’s constitutionally protected rights in this way.”
“No state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” he said.
The lawsuit, which the Justice Department filed in the Western District of Texas on Thursday, also argues that the Texas law would interfere with a slew of federal agencies, contending that it opens federal employees up to lawsuits from private citizens and would increase costs for the federal government to reimburse contractors.
“By prohibiting nearly all abortions in Texas after six weeks of pregnancy, without exceptions for rape, sexual abuse, or incest, SB 8 unconstitutionally conflicts with the statutory and constitutional responsibilities of the federal government,” says the lawsuit, referring to Senate Bill 8.
For instance, the lawsuit says states that participate in the Medicaid program must cover various medically necessary procedures, including abortion.
The lawsuit says military medical facilities in Texas provide abortion services “where the life of the mother would be endangered if the fetus were carried to term or in a case in which the pregnancy is the result of an act of rape or incest.”
The Bureau of Prisons must “provide access to inmates in its care in Texas who elect to have an abortion that the Constitution guarantees them,” the lawsuit says.
The lawsuit, filed after Democrats spent nearly two weeks looking for ways to defeat the Texas law, also argues that its provisions would force the Office of Refugee Resettlement to transport unaccompanied children in its care to other states if they request abortion-related services.
House Speaker Nancy Pelosi has vowed that the House would take a vote on a bill to “enshrine into law reproductive health care for all women” when it returns to Washington this month. And members of the House Judiciary Committee called on the Justice Department to pursue criminal charges against Texans who sue to enforce it, calling them “would-be vigilantes.”
Texas Democrats cheered the Biden administration for stepping in.
“Here’s the message this sends to the millions of Texans affected by Abbott’s ban: You are seen. Your rights matter. And your federal government is fighting for you,” said Hannah Roe Beck, co-executive director of the Texas Democratic Party.
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said Garland’s argument makes sense. But he said he doesn’t believe it actually matters for the litigation, which he predicted will struggle in the same ways as the legal challenge the Supreme Court shot down last week.
“I suppose if it works in Texas, blue states will try to copy it as well,” he said. But the case “doesn’t fall on whether other states can copy it. The courts will assess it on its own merit, not what it will lead to in other cases.”