Feds Escalate Legal Intervention Over SB 8

Abortion rights advocates protested outside the Texas State Capitol during the "People vs. State of Texas" rally on Saturday, Sept. 11 (Photo by Jana Birchum)

The U.S. Department of Justice has escalated its legal challenge to block the new Texas law that has prohibited most legal abortions in the state, even as Roe v. Wade remains the law of the land.

On Tuesday, Sept., 14, the DOJ filed an emergency motion in the U.S. District Court for the Western District of Texas seeking a temporary restraining order or preliminary injunction enjoining the enforcement of Texas' new restrictive abortion law, Senate Bill 8. "The United States has the authority and responsibility to ensure that Texas cannot insulate itself from judicial review for its constitutional violations and to protect the important federal interests that S.B. 8 impairs," writes the DOJ in Tuesday's filing. "This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States." The DOJ's move comes after it first sued the state Sept. 9; that suit, expected to be heard by U.S. District Judge Robert Pitman (an Obama appointee), slams Texas for enacting its law "in open defiance of the Constitution" and calls it a "flagrant deprivation of rights." In the lawsuit, the Biden administration is asking the court to grant a permanent injunction against the law, which was drafted to make it difficult for providers and advocates to challenge it in court

"It takes little imagination to discern Texas' goal – to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review," the lawsuit reads. Senate Bill 8 – adopted by the Texas Legislature in May and in effect since Sept. 1, after a 5-4 U.S. Supreme Court declined to act to stop it – bars abortion care once embryonic cardiac activity is detected, which is around six weeks, with no exceptions for rape or incest. Since about 80% of women don't realize they are pregnant at that point – only two weeks after a missed period – SB 8 amounts to a near-total ban. (SCOTUS will hear a case later this year where Mississippi has explicitly asked for Roe to be overturned.)

The 1973 Roe ruling's protection of the right to abortion care before fetal viability has been upheld many times, including in cases from Texas. In those cases, the state was sued to block its enforcement of anti-choice laws. To get around that, SB 8 empowers any private citizen, anywhere, to sue Texas abortion providers or anyone who "aids or abets" an illegal abortion. Plaintiffs who prevail are guaranteed at least $10,000, creating what's widely seen as a bounty-hunting scheme that has, for now, brought almost all abortion care in the state to a halt.

"The act is clearly unconstitutional under longstanding Supreme Court precedent," said U.S. Attorney General Merrick Gar­land as he announced the suit. "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 in other states," said Garland. Indeed, other GOP-led states, including Florida, Arkansas, Ohio, and South Dakota, have expressed interest in adapting the Texas vigilante scheme; states that have adopted "heartbeat" bans (the first was in 2011) without the private enforcement provision have all seen them blocked in court. President Joe Biden has called the draconian law "un-American" and "an unprecedented assault on a woman's constitutional rights under Roe v. Wade."

Abortion rights advocates, who had filed suit in July to challenge SB 8 only to have those court proceedings halted in late Aug­ust by the 5th U.S. Circuit Court of Appeals, hailed the DOJ lawsuit. "It's a game changer that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas and disarm vigilantes looking to collect their bounties," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "Right now, and every day this law is in effect, patients are being denied access to essential health care," she continued, "and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants, and others with pre­existing obstacles to access health care."