Biden administration sues Texas over strict ‘heartbeat’ abortion ban in an attempt to block the legally tricky law

In this Aug. 5, 2021, file photo, Attorney General Merrick Garland speaks at a news conference at the Department of Justice in Washington.
Attorney General Merrick Garland AP Photo/Andrew Harnik, File
  • The Justice Department is suing over Texas’ strict “heartbeat” abortion ban.
  • The Texas law deputizes private citizens to bring civil suits against abortion providers.
  • AG Garland said the law is “clearly unconstitutional under longstanding Supreme Court precedent.”
  • See more stories on Insider’s business page.

The Department of Justice on Thursday filed suit over Texas’ strict new “heartbeat” abortion law that prohibits the procedure after six weeks of pregnancy, Attorney General Merrick Garland announced.

“After careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the state of Texas,” Garland said in a press conference, describing the law as “clearly unconstitutional under longstanding Supreme Court precedent.”

The legal action, first reported by The Wall Street Journal, comes after the Supreme Court in a 5-4 decision last Thursday declined a request from abortion providers in Texas to block the law.

The “heartbeat” law bans abortions once a fetal heartbeat is detected, which typically occurs at the six-week mark of pregnancy, a time when many women do not yet know they are pregnant.

The DOJ’s lawsuit, which was filed in US District Court for the Western District of Texas and names the state itself as a defendant, seeks a declaratory judgment finding the law to be “invalid, null, and void” on its face and an injunction “prohibiting any and all enforcement of S.B. 8” by actors of the state and private parties.

“This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it,” Garland said of the law. “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear.”

Many Republican-led states have tried to enact “heartbeat” bills or six-week bans and failed because of the standard set in the Supreme Court’s Roe v. Wade decision, which prohibits states from banning abortion in the first trimester.

Yet the nation’s high court allowed the Texas law, which went into effect on September 1, to stand thanks to its highly unusual enforcement mechanism.

Instead of tasking state officials to carry out the ban, the law deputizes private citizens by inviting them to file civil suits against anyone who aids and abets an abortion past the six-week mark of pregnancy. That means legal action could be brought against a doctor carrying out the procedure or an Uber driver taking a patient to an abortion clinic. Successful plaintiffs can earn up to $US10,000 ($AU13,575) in damages, in addition to legal fees.

Chief Justice John Roberts, in dissent, called the Texas law “not only unusual but unprecedented.”

“The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime,” he wrote in his dissenting opinion.

“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 constitutionally protected rights in this way,” Garland said in Thursday’s press conference, during which he also quoted from Roberts’ dissent.

Legal experts told Insider that the Justice Department has a tough job ahead in combatting the law because of what they described as the “evil genius” of the statute’s design.

The DOJ’s lawsuit claims the Texas statute is invalid under the Supremacy Clause, the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.

It further argues that the Texas law unconstitutionally interferes with the activities of federal agencies that are involved in providing reproductive health services, like the Department of Health and Human Services and the Bureau of Prisons.

Since it took effect, the Biden administration has heavily criticized the Texas law as a blatant violation of abortion rights established under Roe v. Wade.

President Joe Biden last week called on the Department of Health and Human Services and Department of Justice to explore any options the federal government could pursue to protect access to abortion in Texas.

In the case the Supreme Court considered last week, Whole Women’s Health vs. Jackson et al, abortion providers named hundreds of state judges and court clerks as the defendants, aiming to block them from docketing civil suits brought by private parties under the law.

The court’s majority, in a paragraph-long opinion, said it wasn’t clear whether they could block state judges from taking up suits filed under the law’s parameters, but emphasized its order “is not based on any conclusion about the constitutionality of the law.”

Other litigants have secured temporary restraining orders in state court preventing specific parties from suing providers and those who aid in abortions under the law. Those temporary injunctions, however, only apply to those individuals and groups and do not block the law wholesale.

The Supreme Court will take up a major abortion case this fall that could potentially throw out Roe. The case, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law that would ban nearly all abortions after 15 weeks of pregnancy.