Justice Dept. Sues Texas Over Abortion Law - The New York Times
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 and a move that could once again put the statute before the Supreme Court.
The department argued that the law was unconstitutional because it allowed Texas to essentially prohibit abortion while technically complying with Supreme Court rulings that forbid such a ban by deputizing private parties to enforce the new restrictions.
Attorney General Merrick B. Garland called Texas’ enforcement mechanism “an unprecedented” effort whose “obvious and expressly acknowledged intention” was to prevent women from exercising their constitutionally protected right to have abortions.
“This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear,” Mr. Garland said in a news conference at the Justice Department. “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.”
The Justice Department is seeking an injunction that would prohibit enforcement of the Texas law. “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.”
Even though the Supreme Court declined last week to block the Texas law, known as Senate Bill 8, it did so without ruling on whether it is constitutional. By placing that question at the heart of its lawsuit, the Justice Department could force the high court to consider factors that might lead to a different ruling should the justices choose to hear the case.
Both opponents and supporters of the law recognize that empowering private citizens to enforce abortion bans through civil litigation has the power to fundamentally change the landscape of the abortion rights fight. The battle has rested largely on whether the Supreme Court will overturn Roe v. Wade, the landmark 1973 decision that granted women the constitutional right to the procedure, paving the way for state bans on the practice. The Texas law essentially allows a state to all but ban abortions before a legal test of that watershed case.
“President Biden and his administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn,” Renae Eze, a spokeswoman for Gov. Greg Abbott of Texas, said in a statement. “We are confident that the courts will uphold and protect that right to life.”
Opponents of the law were heartened by the Justice Department’s lawsuit, said Cecile Richards, the former president of Planned Parenthood. “We are in uncharted legal territory, a state where Roe v. Wade is no longer essentially in effect,” she said.
Ms. Richards noted that millions of women in Texas “lost the right to make their own decisions about their pregnancy” with the passage of the law.
But proponents of the law see it as necessary to preserve the ability of state legislatures to save lives, long a central piece of the conservative platform. “The fact on the ground is that there are now hearts beating in Texas that would have been stopped had this law been prevented from going into effect,” said Roger Severino, a senior fellow at the Ethics and Public Policy Center and a former Trump administration official who advocates on behalf of social conservative causes.
The Justice Department lawsuit came days after the Supreme Court refused, in a 5-to-4 decision, 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.
The Justice Department filed its lawsuit in the Western District of Texas, based in Austin. No matter how the district court rules, both sides in the lawsuit are motivated to appeal, which would send the case to the conservative-leaning Fifth Circuit Court of Appeals. The Texas law could come before the Supreme Court again in several months.
It is not a foregone conclusion that the Supreme Court would again allow the Texas law to stand, said Laurence H. Tribe, a Harvard Law professor and leading liberal constitutional scholar.
“The complaint reaches beyond Roe v. Wade to encompass a structural attack on the basic design of the extraordinary Texas law,” Mr. Tribe said. The law’s structure, he argued, is an end run around seminal cases like Marbury v. Madison in 1803, which established the Supreme Court’s power to determine whether legislation and executive acts are consistent with the Constitution.
“Even conservatives are inclined to protect the power of the federal judiciary,” Mr. Tribe said.
But Mr. Severino noted that the when the Supreme Court chose not to block the Texas law, it said that a party could not sue unless it was over an actual enforcement action that had been taken under the new law.
Mr. Garland said that Texas did 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.
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.
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.
Mr. Garland also said that the Texas law exposed federal employees, including those at the Departments of Defense, Labor and Health and Human Services, to civil liability should they exercise their authorities related to abortion services. He argued that that made 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.
Ms. Richards said that abortion rights advocates and women’s health organizations were moving quickly to assist women in Texas who were seeking abortions, including helping them leave the state if they desired. “I’m sure we’ll see in the coming weeks stories of exactly how cruel and harmful this is for people in Texas,” she said.
The Texas lawsuit is the second time that the Biden administration’s 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.
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, Ky., 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 there in the near term.
The Supreme Court 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 was constitutional.
Even so, it was also seen as a threat to Roe v. Wade and has invigorated advocates on both sides of the debate.
The court will soon take up a separate case that could 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.
source: https://www.nytimes.com/2021/09/09/us/politics/texas-abortion-law-justice-department-lawsuit.html
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