The Justice Department sued the state of Texas on Thursday to block a controversial statute that had effectively banned most abortions in the state, opening a new front in the legal war over the procedure. In a press conference announcing the move, Attorney General Merrick Garland described Senate Bill 8 as a “scheme to nullify the Constitution of the United States.”
“Texas has deliberately impeded the ability of women and providers to raise a challenge in federal court for a violation of their constitutionally protected rights,” the department said in its 27-page complaint. “In so doing, Texas has foreclosed the ability of these individuals to seek relief in their own name. The United States therefore brings this suit to vindicate its interest in ensuring that Texas respects its obligations under the Constitution.”
It’s rare for the federal government to intervene directly in abortion rights cases, which usually pit pregnant women and abortion providers against state officials. But an unusual state law—and its extraordinary effort to circumvent review by the federal courts—brought the Justice Department off the sidelines. In practical terms, the lawsuit is the most forceful effort in recent decades by a presidential administration to protect abortion rights at the state level.
Under Roe v. Wade and Planned Parenthood v. Casey, states and their officials can’t impose an “undue burden” on women who try to obtain a pre-viability abortion. The Texas state legislature sought to circumvent those rulings by deputizing private citizens to enforce a ban on abortions after six weeks. S.B. 8 created a legal right for citizens to sue those they suspect of performing or assisting an abortion, and it allows them to collect at least $10,000 in penalties from the defendant if they succeed. By turning random strangers into anti-abortion bounty hunters, Texas made it easier for conservative federal judges to reject challenges to the law on procedural grounds.
The state’s gambit worked. In a late-night statement earlier this month, the Supreme Court refused to block S.B. 8 from going into effect while legal challenges work their way through the courts, rejecting an eleventh-hour request by a coalition of abortion providers who had sued a wide range of Texas officials. “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue,” five of the justices said in an unsigned order. “But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
That decision drew strenuous dissents from Chief Justice John Roberts and the court’s three liberal justices, who said the court had imposed by inaction what the court’s precedents would otherwise plainly forbid. “The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime,” noted Roberts, who said he would have preserved the pre-S.B. 8 status quo so the lower courts “may consider whether a state can avoid responsibility for its laws in such a manner.”
The Justice Department’s lawsuit tries to outflank those procedural traps by pointing to multiple federal agencies that could theoretically be sued under S.B. 8. The Defense Department performs abortions in some instances at military hospitals in Texas, DOJ noted, and TRICARE reimburses soldiers and their families if they obtain them from private physicians there. The Office of Personnel Management also provides health insurance plans to federal employees, making it a potential target for litigation under the law’s sweeping definition of “aiding or abetting” someone who obtains the procedure.
When abortion providers sued various Texas officials earlier this year, seeking to block S.B. 8 through federal courts, the state claimed that it couldn’t be sued on sovereign-immunity grounds and for other reasons. In its new lawsuit, the Justice Department argued that Texas itself has violated the federal government’s intergovernmental immunity. That principle generally limits the states’ ability to regulate or obstruct federal officials within a state’s borders. By challenging S.B. 8 on those grounds, the Justice Department offered a clearer picture of its own legal standing and its potential injury from S.B. 8 than the abortion providers were able to give.
Thursday’s announcement came amid mounting public pressure on the Biden administration to intervene in Texas in some way. Much of that pressure fell on Garland himself, as the nation’s chief lawyer. “Because the Department cannot permit the second largest state in the Nation to deprive women of their constitutional rights by outsourcing the enforcement of SB 8 to private individuals, we urge you to take legal action up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law,” a group of Democrats on the House Judiciary Committee said in a letter to Garland on Tuesday.
The lawsuit is hardly a slam dunk. Even if a federal judge agrees to the Justice Department’s request for a temporary injunction to block S.B. 8, Texas can appeal that decision to the Fifth Circuit Court of Appeals, which ranks as the most conservative federal bench in the country. In the abortion providers’ lawsuit in August, the Fifth Circuit took unusual steps to block a federal district court judge from enjoining S.B. 8 in that case, ultimately paving the way for the Supreme Court’s inaction to let the law stand.
The Supreme Court itself may also find it harder to turn away the Justice Department’s request for a temporary injunction than it did earlier this month. But the rules that govern the court’s “shadow docket” mean that a five-justice majority could vote against such an injunction without providing any public rationale whatsoever. And even if the Supreme Court rules in the federal government’s favor, it would not stop the court’s conservative wing from overturning Roe outright in Dobbs v. Jackson Women’s Health Center later this term. In other words, even if the Biden administration wins this battle, abortion rights advocates face an uphill battle in the broader war.