Biden Admin Sues Texas After SCOTUS Wipes Its Hands of ‘Unconstitutional’ Abortion Ban

The Biden Justice Department sued Texas on Thursday over its crushingly restrictive abortion law after the Supreme Court refused to rule on its constitutionality.

“The act is clearly unconstitutional under long-standing Supreme Court precedent,” Attorney General Merrick Garland said Thursday when announcing 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.”

The legislation, known as SB8, bans abortions as soon as a healthcare provider can identify cardiac activity, typically during the sixth week of pregnancy and often before a woman knows that she is pregnant. It also effectively empowers and incentivizes private citizens by offering them at least $10,000 in damages if they successfully sue an individual who knowingly “aids and abets” an abortion. Successful plaintiffs can also demand that the defendant pay their legal bills.

Garland slammed that statute, saying it “deputizes” private citizens to serve as “bounty hunters” who are authorized to cash in on suing individuals who help women exercise their constitutional rights.

The Justice Department’s suit seeks to obtain a declaration that the Texas law is invalid, prohibit its enforcement, and protect the rights that the department says Texas has violated.

“It takes little imagination to discern Texas’s 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 complaint says.

Abortion providers had called on the Supreme Court to intervene before the law went into effect last week, suggesting that the legislation was tantamount to overturning Roe v. Wade in the state. But the court ruled 5-4 last week to allow the law to stand.

“The court’s order is stunning,” Supreme Court Justice Sonia Sotomayor wrote in her dissenting opinion. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

The law has been lauded by anti-abortion activists and lawmakers because it empowers private citizens to police the ban and therefore makes it difficult for opponents to sue state officials.

The Justice Department’s lawsuit similarly asserts that Texas has deliberately adopted “a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review.”

Further, the lawsuit argues that, by making no exceptions for rape or incest victims, Texas’ law blocks the federal government from “performing, funding, reimbursing, or facilitating abortions in such cases.”

It alleges that the Texas law “unconstitutionally impairs” some federal interests by keeping federal agencies from carrying out abortion services—responsibilities that are expected of them under federal law.

“Make no mistake, the Supreme Court’s refusal to block the ban last week allowed Texas to take away most abortion access just as surely as if they had overturned Roe v. Wade,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement Thursday. “This first step by the Department of Justice is critical to righting this injustice for the people of Texas, and to prevent this catastrophe from playing out in other states that have pledged to follow Texas’ lead.”

President Joe Biden previously said that the law and the Supreme Court’s refusal to block it represented an “unprecedented assault on constitutional rights.”

Garland had hinted at the lawsuit on Monday, saying that the Justice Department was “urgently” exploring “all options” to challenge the restrictive law, and would provide law enforcement support for any abortion clinic or reproductive health center that “is under attack.” He said the DOJ had contacted U.S. Attorneys’ Offices and FBI field offices in Texas and across the country to “discuss our enforcement authorities.”

In a letter to Garland earlier this week, Democratic members of the House Judiciary Committee urged him to prosecute “would-be vigilantes” who attempt to use Texas’ new law “to deprive women of the constitutional right to choose an abortion.”

Garland noted on Monday that the Freedom of Access to Clinic Entrances Act protects those seeking to obtain or provide an abortion from intimidation and vowed to enforce it.

“The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now,” he said.