DOJ Files Suit in Effort to Void the Texas Anti-Abortion Law (1)

Sept. 9, 2021, 9:49 PM

The Justice Department sought to put a quick stop to a restrictive anti-abortion law in Texas after the Supreme Court refused to do so, seeking an emergency injunction to block it long enough for a court to rule it unconstitutional.

The 27-page complaint, filed Thursday in federal court in Austin, seeks both an immediate and permanent injunction against the law, which bars almost all abortions after the sixth week of pregnancy, before many women know they are pregnant.

“The act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said at a news conference.

The Supreme Court refused last week to block the measure, as requested by abortion providers in Texas, while it’s challenged in lower courts.

The law, known as Texas Senate Bill 8, deputizes citizens to sue people who perform or aid in the procedure, allowing them to collect at least $10,000 and legal fees if they succeed in court.

QuickTake: How Texas Abortion Law Turns Public Into Enforcers

Garland called the law an “unprecedented scheme” using “bounty hunters.”

“The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible,” Garland said. “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 lawsuit comes as Garland and the Justice Department are facing mounting pressure to take action from President Joe Biden, congressional Democrats and advocates for women’s reproductive rights. Garland denied, however, that political pressure had anything to do with the decision to file the lawsuit.

The department is seeking a declaratory judgment that the law is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.

Stephen Miller, who served as an adviser to former President Donald Trump and is now president of the conservative group America First Legal, said in a statement that the lawsuit “was not a legal action, but a political action -- a statement of President Biden’s support for abortion.” He called it “extremely bizarre” that it sought to enjoin every Texas resident from invoking the law.

Prospects Debated

The lawsuit comes as the conservative-controlled Supreme Court prepares to hear a Mississippi appeal that seeks to overturn the landmark 1973 Roe v. Wade ruling, which legalized abortion nationwide.

Some legal experts questioned whether the suit will succeed in stopping the Texas measure.

“The trick here isn’t the merits; those were always going to be incredibly strong,” University of Texas constitutional law professor Steve Vladeck said in a tweet. “The trick is how to get the right relief against the right defendants. A declaratory judgment against TX is a good start, but it’s not clear how a court can enjoin … everyone … from enforcing it.”

But Neal Katyal, who served as the government’s top Supreme Court lawyer under President Barack Obama, said the procedural issues aren’t all that different from what the Justice Department faced when it sued Arizona a decade ago over its crackdown on illegal immigration. The Supreme Court scaled back the Arizona law in 2012.

“The vigilante provision is tricky but not that hard to create a case around, particularly given the chilling effect,” Katyal said. He said that the lawsuit “tees up a showdown in the U.S. Supreme Court about whether Roe v. Wade is going to be overruled.”

Garland said in a statement Monday that the department was urgently exploring all options to challenge the Texas law. The department will use powers under an existing law to provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack, Garland said then.

Biden said last week that he believed the Justice Department may have some ability to “limit” the legislation, without providing details. He called the law an “assault” on abortion rights.

The case is: U.S. v. State of Texas, 21-cv-00796, U.S. District Court, Western District of Texas (Austin)

(Updates with comment from supporter of the Texas law in 10th paragraph)

--With assistance from Bob Van Voris and Laurel Calkins.

To contact the reporters on this story:
Chris Strohm in Washington at cstrohm1@bloomberg.net;
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Bill Faries at wfaries@bloomberg.net

Larry Liebert, Elizabeth Wasserman

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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