DOJ joins battle to block Texas’ fetal-heartbeat abortion ban

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The U.S. Department of Justice filed suit Thursday to block a Texas ban on most abortions - arguing that the legislation undermines the authority of the federal government and could prompt other states to try similar tactics.

The action by the Biden administration comes less than a week after a sharply divided U.S. Supreme Court allowed the Texas prohibition to take effect.

Known as Senate Bill 8, the measure blocks medical termination of pregnancies once a fetal heartbeat can be detected, a possibility at six weeks and before many women are even aware they’re carrying a child.

The law upends five decades of Supreme Court rulings guaranteeing women the right to abort a pregnancy before the infant can survive outside the womb, Attorney General Merrick Garland said at a news conference announcing his department’s lawsuit against the state of Texas. Viability typically occurs at six to seven months into the pregnancy.

Signed into law by Gov. Greg Abbott, the law empowers and relies on private citizens to enforce its prohibitions through civil claims against violators, worth $10,000 each if upheld, rather than through the action of state officials.

Something all Americans 'should fear'

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” said Garland, whose 2016 nomination to the Supreme Court was blocked by then-Senate Majority Leader Mitch McConnell, allowing President Trump to appoint three justices.

Each of them – Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett – backed the court’s decision not to enjoin the Texas law before it took effect.

Should it prevail, Texas S.B. 8, “may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents,” Garland said. “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 lawsuit, filed in U.S. District Court in Austin, seeks permanent and preliminary injunctions against enforcement of the Texas law, whose “obvious and expressly acknowledged intention” is to thwart women from exercising their constitutional rights by thwarting judicial review for as long as possible,” Garland added.

A narrow majority of the Supreme Court – including every justice appointed by a Republican president except for Chief Justice John Roberts – said in the Sept. 2 order in Whole Women’s Health v. Austin Reeve Jackson that the structure effectively tied its hands until enforcement of the law was attempted, alarming women’s rights advocates.

The court’s typical method for addressing questionable statutes is to bar officials from carrying them out, a move rendered more difficult when the identity of the potential enforcer is unknown, the majority said.

'Law of the land'

It was unclear whether any of the officials targeted in the case, including county clerks and judges who might accept civil claims, “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention,” the majority wrote. They stressed that the order in no way addressed the constitutionality of the Texas law or limited any “procedurally proper challenges.”

The fetal-heartbeat law, the Justice Department argues in United States of America v. The State of Texas, violates both the Fourteenth Amendment and its implied right to privacy – which provided the foundation for the Supreme Court’s Roe v. Wade decision legalizing abortion in 1973 – and the Supremacy Clause declaring that the Constitution and federal laws passed under it are the “supreme law of the land,” overriding any contrary provisions in state laws or constitutions.

Specifically, the suit says, the law exposes “federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion- related services but refuse to do so to avoid liability under S.B. 8.”

Among the affected programs and agencies are the Department of Labor’s Job Corps, the Office of Refugee Resettlement, the Centers for Medicare and Medicaid Services, the Bureau of Prisons and the Office of Personnel Management.

The lawsuit, case number 1:21-cv-00796, was submitted by Justice Department attorneys led by Brian Boynton, acting assistant attorney general for the civil division, and Deputy Attorney General Brian Netter.

It drew praise from Whole Women’s Health, the independent abortion provider that unsuccessfully urged the Supreme Court to block enforcement of the Texas law before it took effect on Sept. 1.

Texas AG promises a fight

“Thank you to the Biden Administration for listening to us, respecting our work, valuing our patients, and taking these vital steps towards justice,” the organization said in a Twitter post. “It’s the first time we’ve felt hope in a long time.”

The same day, Vice President Kamala Harris met with abortion and reproductive health-care providers to discuss the impact of S.B. 8 and other restrictions.

The issue is a critical one for the Biden administration, Press Secretary Jennifer Psaki told reporters at a news conference.

Texas Attorney General Ken Paxton, meanwhile, promised to use “every available resource” to defend his state’s law.

“Today the Biden Administration sued every individual in Texas,” he said on Twitter. “Biden should focus on fixing the border crisis, Afghanistan, the economy and countless other disasters instead of meddling in state’s sovereign rights.”