Biden administration suing Texas over unconstitutional abortion restrictions

The Department of Justice has sued the state of Texas over a new law that bans abortions after about six weeks, before most people realize they are pregnant, all but halting the procedure in the country’s second-largest state.

The lawsuit says the state enacted the law “in open defiance of the Constitution.”

The Justice Department is seeking a permanent injunction against the law from a federal court in the Western District of Texas but it seems highly likely that the Supreme Court will have the final word on the matter.

Attorney General Merrick B. Garland announced that the federal government filed the lawsuit to prevent the State of Texas from enforcing Senate Bill 8 (SB8), which went into effect on Sept. 1 and effectively bans most abortions in the state.

The new was welcomed by New Jersey activist Lisa McCormick, who had called on Garland to take action in defense of the constitutional right to privacy that makes it unlawful for states to interfere with a woman’s right to choose to end a pregnancy.

“The Texas law banning abortions after six weeks is an attack on everyone’s constitutional rights because it negates our implicit right to privacy, which has been firmly established in multiple Supreme Court decisions,” said McCormick. “In the last decade, there have been about 500 medically unnecessary, politically motivated restrictions on abortion enacted by states in violation of the constitutional right to privacy recognized in the landmark 1973 Roe v. Wade decision.”

Instead of relying on the state’s executive branch to enforce the law, as is the norm in Texas and elsewhere, the state has deputized ordinary citizens to serve as bounty hunters, statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her own constitutional rights.

The complaint seeks a declaratory judgment that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.

The United States also seeks an order, preliminarily and permanently, enjoining the State of Texas, including its officers, employees and agents, including private parties who would bring suit under the law, from implementing or enforcing SB8. 

“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” said Garland. “The United States has the authority and 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.” 

According to the complaint, Texas enacted SB8 in open defiance of the Constitution by banning abortion at approximately six weeks in nearly all cases.

The law violates individuals’ rights to have an abortion procedure prior to viability, which is usually around 24 weeks.

Additionally, the law contains no exceptions for pregnancies that result from rape, sexual abuse, incest or for pregnancies involving a fetal defect incompatible with life after birth.

The prohibitions in SB8 apply to anyone who performs or induces a prohibited abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and even anyone who “intends” to perform or aid a prohibited abortion.

The complaint challenges that this unprecedented scheme is designed to evade judicial review.

A spokesperson for Republican Texas Gov. Greg Abbott defended the unconstitutional law and accused the Biden administration of trying to distract Americans from the U.S. withdrawal from Afghanistan and the influx of migrants at the U.S.-Mexico border.

“We are confident that the courts will uphold and protect that right to life,” said press secretary Renae Eze.

Attorney General Merrick B. Garland Delivers Remarks Announcing Lawsuit Against the State of Texas to Stop Unconstitutional Senate Bill 8
Washington, DC ~ Thursday, September 9, 2021

Last week, after the Supreme Court allowed Texas Senate Bill 8 to take effect, I said that the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.

Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the State of Texas. Our position is set out in detail in our complaint. Its basis is as follows.

SB8 bans nearly all abortions in the state after six weeks of pregnancy – before many women even know they are pregnant and months before a pregnancy is viable. It does so even in cases of rape, sexual abuse or incest.

And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.

The Act is clearly unconstitutional under longstanding Supreme Court precedent. Those precedents hold, in the words of Planned Parenthood v. Casey, that “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

Texas does not dispute that its statute violates Supreme Court precedent. Instead, the statute includes an unprecedented scheme to, in the Chief Justice’s words, “insulate the State from responsibility.”

It does not rely on the State’s executive branch to enforce the law, as is the norm in Texas and everywhere else.

Rather, the statute deputizes all private citizens – without any showing of personal connection or injury – to serve as bounty hunters, authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.

The obvious – and expressly acknowledged – intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible. Thus far, the law has had its intended effect.

Because the statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services. This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it.

This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.

Nor need one think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that empower any private individual to infringe on another’s constitutionally protected rights in this way.

The United States has the authority and 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.

The United States also brings this suit to assert other federal interests that SB8 unconstitutionally impairs. Among other things, SB8 conflicts with federal law by prohibiting federal agencies from exercising their authorities and carrying out their responsibilities under federal laws relating to abortion services.

It also subjects federal employees and non-governmental partners who implement those laws to civil liability and penalties.

Among the federal agencies and programs whose operations the statute unconstitutionally restricts are the Labor Department’s Job Corps Program, the Defense Department’s TRICARE Health Program, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and Medicaid Services, and the Office of Personnel Management.

The complaint therefore seeks a declaratory judgment that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.

The United States also seeks a permanent and preliminary injunction prohibiting enforcement of the statute against the State of Texas – including against the State’s officers, employees and agents, and private parties it has effectively deputized who would bring suit under SB8.

The Department of Justice has a duty to defend the Constitution of the United States and to uphold the rule of law. Today, we fulfill that duty by filing the lawsuit I have just described.

Now, before I take some questions, I want to say a few words to the American people on the eve of the 20th anniversary of the attacks of September 11, 2001.

That day is seared into all of our memories. Nothing we can do or say can replace the loss so many endured that day. Nothing can change the profound way the events of September 11th altered us, individually and collectively as a nation.

And let there be no doubt: the threat from terrorists, from foreign terrorists like those involved in the September 11th attack, is one we must constantly guard against.

But what we can do – and what we have done – is learn from the past to better anticipate and prepare for the next threat and to seek to disrupt it.

As we mark this anniversary, we rededicate ourselves at the Justice Department to doing all we can to protect the American people from terrorism in all its forms – whether originating from abroad or at home – and to doing so in a manner that is consistent with our values and the rule of law.

With that, I’m happy to take a few questions.

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