Attorney General Merrick Garland announced a lawsuit on Thursday against the state of Texas over its blatantly unconstitutional new ban on abortions after six weeks of pregnancy. In doing so, Garland and the Department of Justice illustrated what President Biden promised would be a “whole of government” reaction to the Supreme Court’s refusal to stop the law from being implemented. The suit is meant to expose Texas’s effort to execute a constitutional counterrevolution, and force the Court to deal with the effects of the law and its own actions.
“The Department of Justice has a duty to defend the Constitution of the United States, and to uphold the rule of law. Today we fulfill that duty,” Garland said during a press conference announcing the lawsuit filed in a Texas federal court.
As the complaint filed by DOJ shows, the Texas law in question, SB 8, violates a host of Supreme Court precedents establishing and reaffirming the right of women to obtain abortions without restrictions that would impose an “undue burden” on that right. A flat ban, without even exceptions for rape or incest, is pretty clearly an “undue burden.”
The Supreme Court, of course, claimed in its infamous midnight order last week that it was not addressing the constitutionality of SB 8, but was simply ruling that the abortion providers requesting its intervention had not shown exactly how to restrain enforcement of the statute against the private-sector citizens empowered to enforce it via civil litigation that had not yet occurred. Garland brushed that away, quoting a dissent from Chief Justice John Roberts arguing that the private enforcement system was a ruse to keep the state from responsibility for the policies it had imposed.
“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 obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review.”
Having established (in his own view, at least) that Texas can be sued over this law, Garland then focused on a two-pronged argument for the federal government’s standing to bring the suit. The first involves Texas’s violation of the Constitution’s Supremacy Clause by trying to interfere with the various federal agencies operating or financing reproductive-health services in Texas. And the second involves (as the complaint calls it) the “profound sovereign interest” of the U.S. government “in ensuring that [their] constitutional rights remain redeemable in federal court.”
What Garland did not do, though some had encouraged this route, was to rely on one of the statutes from the Reconstruction period (utilized later by federal prosecutors during the civil-rights era) to bring suit against the private individuals SB 8 empowered and encouraged to harass and intimidate abortion providers. That could be a fallback position if the DOJ suit is rejected, or if the situation changes via actual lawsuits against providers in Texas.
In that case, whatever the district court in Texas decides, it’s unlikely the Fifth Circuit Court of Appeals or the Supreme Court will now reverse their earlier judgments that review of SB 8 is premature until private citizens actually sue abortion providers and abettors, even though the mere threat of suits (given the $10,000 liability per violation SB 8 imposes) has effectively shut down the vast majority of abortions in Texas.
So Garland’s action today is the first step in a sustained DOJ assault on SB 8, offering a constant reminder that conservatives in Texas are engaged in a malign effort to overturn 48 years of Supreme Court precedents since Roe v. Wade, without so much as an open hearing or a signed decision.