Texas Abortion Law Draws Roadmap to  Subvert Constitution, Feds Claim

© Joe Sohm | Dreamstime.com

A core tenet among martial arts disciplines is turning the strength and energy of opponents against them.

At its most basic, that’s what the U.S. Department of Justice aims to accomplish with its latest maneuver in the brawl over a Texas law prohibiting virtually all abortions in the state.

The framers of the bill, which relies for enforcement on private civil suits rather than the machinery of state government, have said their goal was to outlaw the procedure in a way that would survive judicial scrutiny, U.S. Supreme Court precedent notwithstanding.

Their strategy initially proved successful as the high court cited procedural difficulties in declining a request from abortion clinics to block the law despite “serious” constitutional questions.

However, in a brief filed Oct. 11, Acting Assistant Attorney General Brian Boynton and Deputy Assistant Attorney General Sarah Harrington argue that strategy itself justifies federal intervention because it shows the law poses an existential threat to the bedrock of the U.S. system of government.

“By both defying the Constitution and frustrating judicial review, Texas has not merely protracted its assault on the rights of its citizens, it has repudiated its obligations under our national compact in a manner that directly implicates sovereign interests of the United States,” the lawyers said in the motion filed with the 5^th U.S. Circuit Court of Appeals in New Orleans.

The filing details the grounds for the government's opposition to requests from Texas and its allies that the appellate court block a lower court’s injunction against enforcing state Senate Bill 8.

A three-judge panel temporarily stayed the injunction on Oct. 8 and Texas and 18 allied states, including Indiana, Florida, Mississippi and Alabama, want the stay extended until an appeal of the injunction is resolved. A number of other groups have sought permission to file amicus curiae briefs on both sides of the dispute.

While Texas Attorney General Ken Paxton invoked state sovereignty to defend the measure known as state Senate Bill 8, that doctrine doesn’t confer the authority to defy the U.S. Constitution, Boynton and Harrington assert: “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind.”

Achieving victory in the battle social conservatives have been waging against the Supreme Court’s 1973 legalization of abortion through Senate Bill 8 may prove pyrrhic for Texas and its allies, however, according to the Justice Department’s filing.

While some states controlled by conservatives regard the Texas law as a model, the same mechanism it uses to undermine the court’s ruling in Roe v. Wade would enable liberal areas to gut rights cherished by the GOP base.

A state might, for instance, “ban the possession of all handguns in the home,” defying the Supreme Court’s holding in District of Columbia v. Heller, “or prohibit independent corporate campaign advertising,” in violation of Citizens United v. Federal Election Commission, “and deputize its citizens to seek bounties for each firearm or advertisement,” they argue.

“Partisans of one stripe or another might cheer these outcomes, but they should horrify anyone committed to the principle that this diverse nation is bound by one Constitution,” the government says.

The stark warning underscores the stakes for judges evaluating the law in a country already shaken by fallout from the last general election and a near constitutional crisis.

On. Jan. 6, supporters of former President Donald Trump, who has steadfastly refused to concede that he lost the November general election, attacked the U.S. Capitol, delaying certification of Democrat Joe Biden’s victory. The resulting melee left seven people dead.

Trump’s legacy lives on, meanwhile, with three of his appointees now sitting on the U.S. Supreme Court, giving Republican-nominated justices a six-member majority.

That circumstance, and the political maneuvering employed by Senate GOP Leader Mitch McConnell to achieve it, spurred furious accusations of political partisanship when the court refused abortion clinics’ request to block the Texas law in September.

The measure bans abortions as soon as a fetal heartbeat is detected, which can occur as early as six weeks after the mother’s last menstrual period – before many women know they’re pregnant and well in advance of the roughly six months at which a fetus can survive outside the womb, a point known as viability.

The abbreviated timeframe flies in the face of Roe v. Wade, in which the Supreme Court determined that mothers have a constitutional right to obtain an abortion before viability.

As such, it’s clearly unconstitutional, the Justice Department claims, an opinion shared by U.S. District Judge Robert Pitman of the Western District of Texas, who enjoined the state from enforcing it last week.

It was only days later that the state won its temporary stay of his order - one that the Justice Department says there are no grounds for extending since Texas is unlikely to succeed in its appeal and the federal lawsuit is a “proper vehicle” for blocking enforcement of the law.

The state doesn’t “seriously dispute” that the government is likely to prevail in its argument that Senate Bill 8 violates the Constitution, the brief claims, relying instead on an argument that Washington lacks the authority to challenge the law on the basis of Fourteenth Amendment violations

Texas Attorney General Paxton made a similar claim in the lower court, asserting that executive branch agencies have no authority to prevent violations of Fourteenth Amendment rights unless Congress specifically confers it through federal law.

The Justice Department rejects that reasoning, citing the Supreme Court’s 1895 ruling in In re Debs that every government has the authority to seek assistance from its own courts in protecting the “general welfare” of its population. That would include preserving Fourteenth Amendment rights, the attorneys argue.

The Constitutional basis for the Roe decision, the Fourteenth Amendment was approved in 1868, after the end of the Civil War. It bars states from restricting any of the privileges of U.S. citizens or depriving any of their residents of equal protection under the law.

Along with its responsibility for safeguarding the rights of Americans, the federal government also has an interest in violations of law that affect its sovereign interests, the high court has held.

“Texas’s effort to evade review of a blatantly unconstitutional enactment is an open threat to the supremacy of the federal Constitution,” the government argues, and the Washington has a “paramount interest in preserving respect for the Supreme Court’s “considered interpretation of the United States Constitution.”