The Justice Dept. Sues Texas Over Abortion Law

The move is the first major step by the Biden administration to confront the new law, the nation’s most restrictive in terms of abortion access.


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The Justice Dept. sues Texas over its new restrictive abortion law.

“The Department of Justice has a duty to defend the Constitution of the United States, and to uphold the rule of law,” Attorney General Merrick B. Garland. The department is seeking an injunction that would prohibit enforcement of the Texas abortion law.Credit…Yuri Gripas for The New York Times

Sept. 9, 2021Updated 4:00 p.m. ET

The Justice Department sued Texas on Thursday over its recently enacted law that prohibits nearly all abortions in the state, the first significant step by the Biden administration to fight the nation’s most restrictive ban on abortion.

The department argued that the Texas law is unconstitutional because it allows the state to essentially prohibit abortion by deputizing private parties to enforce the new restrictions in order to technically comply with Supreme Court rulings that forbid such a ban.

Attorney General Merrick B. Garland called that enforcement mechanism “an unprecedented scheme” whose “obvious and expressly acknowledged intention” is to prevent women from exercising their constitutional rights guaranteeing they can choose to have abortions.

“It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,'” the lawsuit said. “But Texas has done just that.”

The Justice Department is seeking an injunction that would prohibit enforcement of the Texas law. “The Department of Justice has a duty to defend the Constitution of the United States, and to uphold the rule of law,” Mr. Garland said in a news conference at the Justice Department. “Today we fulfill that duty,” he said of the lawsuit.

The suit came days after the Supreme Court refused to block the Texas legislation, which bans all abortions after about six weeks of pregnancy and makes no exceptions for pregnancies that are the result of rape or incest.

The court had stressed that it was not ruling on the constitutionality of the Texas law. But the way the law was written — allowing anyone, regardless of whether they have any connection to an abortion, standing to sue those who perform or otherwise aid in the procedure — could make it difficult to challenge in court.

That set up a major shift in the fight over abortion rights and paved a path for other states to limit access to abortion. The law also raised alarms that abortion providers would face myriad lawsuits brought by private citizens.

Mr. Garland said that Texas does not dispute that the law violates Supreme Court precedent, which bars states from preventing a woman from determining whether to terminate a pregnancy.

Rather, the Texas law effectively takes the state out of the equation. It insulates the state from responsibility by deputizing “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,” Mr. Garland said.

“The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review,” he added.

Mr. Garland also said that the Texas law exposes federal employees, including at the departments of Defense, Labor and Health, to civil liability should they exercise their authorities related to abortion services. He argued that that makes the legislation invalid, both under the supremacy clause of the Constitution that gives precedence to federal law over state law and under the equal protection guarantees of the 14th Amendment.

The lawsuit was filed as Vice President Kamala Harris was set to meet with abortion and reproductive health providers and patients to discuss the impact of the Texas law. She planned to emphasize that the protection of abortion rights was a critical priority for the Biden administration, the White House press secretary, Jen Psaki, told reporters.

The Texas lawsuit is the second time that the Justice Department has sued a state over a law passed by a Republican legislature that it views as unconstitutional or otherwise unlawful. In June, the department sued Georgia over a sweeping voting law, alleging that lawmakers there intended to violate the rights of Black voters.


Abortion rights advocates on Saturday near the Supreme Court.Credit…Kenny Holston for The New York Times

The Biden administration has made civil rights protections a priority. Beyond the lawsuits, it is also investigating whether several major city police departments, including in Minneapolis and Louisville, routinely violate the rights of people of color.

But the Justice Department has little power to combat Republican state legislatures that were emboldened by the conservative shift in the federal courts during the Trump administration. In Texas, the particularities of the law and the slow pace with which lawsuits wend through the judicial system will make it difficult for the department to protect abortion rights in Texas in the near term. And the conservative majority on the Supreme Court could make it nearly impossible for the Biden administration to protect abortion rights nationwide in the long term.

Understand the Texas Abortion Law

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The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

The Supreme Court’s decision. The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

This month, the Supreme Court, in a 5-to-4 decision, chose not to block the Texas law, known as Senate Bill 8, which took effect at the end of August. It bans all abortions after about six weeks of pregnancy, before many women know they are pregnant.

The decision forced Texas abortion providers to turn patients away to comply with the new restrictions. It also raised fears that providers would face a rash of lawsuits filed by private citizens and anti-abortion groups poised to take advantage of the latitude the law grants them to sue anyone who aid or intends to aid women who seek the procedure.

The unsigned majority opinion said that the medical providers challenging the law had failed to make their case, but that the court was not ruling on whether the statute is constitutional.

Even so, it was also seen as a threat to Roe v. Wade, the landmark 1973 decision that granted women the constitutional right to the procedure, and it has invigorated advocates on both sides of the debate.

The court will soon take up a separate case that will determine whether Roe v. Wade should be overruled.

After opponents of the Texas law failed to persuade the Supreme Court to block it, Democrats and abortion rights activists pressured the Biden administration and Mr. Garland to act.

“We urge you to take legal action up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law,” the chairman of the House Judiciary Committee, Representative Jerrold Nadler of New York, and 22 other House Democrats wrote in a letter to Mr. Garland this week.

Mr. Garland foreshadowed the Justice Department’s lawsuit on Monday, saying that it would urgently explore all of its options “in order to protect the constitutional rights of women and other persons, including access to an abortion.”

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