On Thursday, Attorney General Merrick Garland announced a lawsuit against Texas’ restrictive abortion law.
“Today, after careful assessment of the facts and the law the Justice Department has filed a lawsuit against the state of Texas,” Garland said.
Garland criticized the new state law, Texas Senate Bill 8, for banning nearly all abortions after six weeks of pregnancy, which is before many women know they’re pregnant. The law makes no exceptions in cases of rape, sexual abuse or incest.
“The act is clearly unconstitutional under longstanding Supreme Court precedent,” Garland added. “Those precedents hold in the words of Planned Parenthood versus Casey, regardless of whether exceptions are made for particular circumstances, a state may not prevent any woman form making the ultimate decision to terminate her pregnancy before viability.”
Garland said that Texas does not deny the statute violates precedent.
“Instead, the statute includes an unprecedented scheme to, in the chief justice’s words, ‘insulate the state from responsibility,'” Garland said, citing Chief Justice John Roberts’ dissent in the U.S. Supreme Court 5-4 vote last week against abortion providers in the state who had filed an emergency application for relief against the law.
To provide this insulation, Justice Sonia Sotomayor said in the Supreme Court dissent that SB8 “deputized the State’s citizens as bounty hunters,” to enforce the state law.
Garland referred to this enforcement mechanism as a “legislative scheme” in his remarks.
“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 constitutional protected rights,” he said.
“The United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights through a ‘legislative scheme.'”
Garland noted that the enforcement mechanism was unusual.
“It does not rely on the state’s executive branch to enforce the law, as is the norm in Texas and everywhere else, rather the statute deputizes 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,” Garland said.
The goal of the scheme was “to prevent women from exercising their constitutional rights by thwarting judicial review for as long a possible,” Garland said.
“Thus far, the law has had its intended effect. Because the statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services. 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, by other states, and with respect to other constitutional rights and judicial precedents.”
Garland said the Justice Department also is bringing the suit because SB 8 conflicts with federal law by prohibiting federal agencies from exercising their authorities and carrying out their responsibilities under federal laws in relation to abortion services.
It also unconstitutionally restricts federal employees and non-governmental partners who apply the same federal legislation by imposing potential civil liabilities and penalties, he claims.
The lawsuit seeks a declaration ruling that SB 8 is unconstitutional under the supremacy clause and the 14th Amendment, that it is pre-empted by federal law, and that it violates the doctrine of intergovernmental immunity.
It also seeks a permanent and preliminary injunction to prevent the enforcement of SB 8.
“The Department of Justice has a duty to defend the United States Constitution and to protect the law,” Garland added. “We fulfilled that obligation today by bringing the complaint I just mentioned.”
Texas Attorney General Ken Paxton responded that he’d use “every available resource to fight for life.”
“Today the Biden Administration sued every individual in Texas. Biden should focus on fixing the border crisis, Afghanistan, the economy and countless other disasters instead of meddling in state’s sovereign rights,” he tweeted.
On Monday, Garland vowed to protect women and providers threatened by SB 8.
“While the Justice Department urgently explores all options to challenge Texas SB 8 in order to protect the constitutional rights of women and other persons, including access to an abortion, we will continue to protect those seeking to obtain or provide reproductive health services,” Garland said in a statement then.