When the United States sued Texas on Thursday it was the latest hit in a seemingly endless game of Whac-a-Mole legal attempts to protect abortion rights.
The Department of Justice is hoping that a federal district court in West Texas will do what the Supreme Court did not when it refused to grant an injunction last week to stop the law, which bans all abortions after 6 weeks, from taking effect.
The law had been crafted to reach that outcome, by leaving enforcement to private citizens, and the Court’s conservative majority decided that it did not have authority to stop it from taking effect since it didn’t involve government actors and there was not yet proof that it would be enforced. But since no decision was made on the substance of the law, other courts may still strike down the law that the Biden administration argues is in “open defiance of the Constitution.”
Ordinarily, state actors enforce anti-abortion laws, and challenges to those laws in the court prevent them from taking effect while the underlying issues are decided. But because SB8 empowers individuals to enforce the law, SB8 cannot be stopped unless a court actively issues an injunction. Even though the question of whether or not SB8 is constitutional is still pending in front of the 5th Circuit, the law can be in effect while the judicial process is ongoing.
The Department of Justice’s complaint in United States v. Texas outlines why an unconstitutional law should not be allowed to stand just because individuals enforce it. The DOJ is uniquely situated to argue that the law must be stopped from being in effect, because state law cannot violate federal law, and cannot directly regulate the activities of the federal government and its contractors.
It is currently unconstitutional to prohibit abortions prior to the “viability” of the fetus, which is recognized as at 20-22 weeks. But SB8 makes it unlawful for physicians in Texas to perform abortions if they detect cardiac activity—which can be as soon as six weeks after the woman’s last period, well before most women recognize that they are pregnant. To evade judicial review on the substance of the law—which clearly violates the viability standard the Supreme Court established in 1992—SB8 created a procedural framework for anti-abortion advocates to hide behind, along with sympathetic Justices.
The Texas legislature gave private citizens the right to file lawsuits against any person who violates SB8, or “aids or abets” an abortion after 6 weeks. The legal challenges to SB8 could not be brought as they ordinarily are— against the state actor charged with enforcing the law, such as the health commissioner or governor. As Justice Sonia Sotomayor explained in her dissent, “[b]y prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.”
The DOJ argues that even if Texas does not enforce SB8, the law both compels the judicial branch to enforce it and deputizes private citizens to be state actors. Usually, a person cannot bring a lawsuit unless they have “standing,” meaning that the violation of the law that they are seeking to prove in court has a personal impact on them. In contrast, any person can bring a lawsuit against abortion providers or those who “aid and abet” abortions under SB8. The plaintiff who files a lawsuit—against a doctor, Lyft driver, receptionist or volunteer—does not need to have any relationship to the abortion they are arguing took place. SB8 encourages these lawsuits, providing financial incentive for private citizens to file lawsuits by providing successful plaintiffs with damages of at least $10,000, and payment for their attorneys’ fees.
United States v. Texas also outlines the various ways that SB8 restricts operations of the federal government by highlighting six different federal agencies and programs that operate in Texas and that are required—based on a myriad of federal laws and policies—to provide abortions. For example, prisoners who are incarcerated in federal prison in Texas, have the right to receive abortions. Bureau of Prisons personnel are required to assume all costs for abortions where the life of the parent is endangered, or in the case of rape or incest, and will need to escort inmates to facilities outside of Texas to comply with their own regulations. The same challenges applies to personnel in the Office of Refugee Resettlement, who will need to transport unaccompanied children to other states to receive the abortion services they are entitled to.
As Justice’s case proceeds, the whack-a-mole game will continue, potentially indefinitely. Other states have already expressed interest in passing laws similar to SB8, and the DOJ has already stated that it will sue other states which pass those laws. Meanwhile, Travis County district court granted a restraining order against Texas Right to Life, preventing the organization or anyone working with them from enforcing SB8. Whole Woman’s Health v. Jackson, the lawsuit challenging SB8, is still pending in the 5th Circuit, which may still make a ruling on the substance of the law.
In the face of all this, the Supreme Court has already agreed to hear Jackson Women’s Health Organization v. Dobbs—which would allow the court’s new conservative majority to decide whether all pre-viability prohibitions on elective abortions are unconstitutional, which would effectively mark the end of Roe v. Wade.