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Biden DOJ Files For Emergency Injunction Against Texas Fetal Heartbeat Law

Biden DOJ Files For Emergency Injunction Against Texas Fetal Heartbeat Law

DOJ: “The unique circumstances presented here … distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue”

We previously covered the lawsuit filed by the U.S. Department of Justice, after the Supreme Court refused to issue a stay of the Texas Fetal Heartbeat Law, Biden DOJ Sues To Stop Texas Fetal Heartbeat Law.

In that post, I noted that DOJ had not yet filed a motion for an injunction, but that such a request was inevitable:

The U.S. Supreme Court refused to halt the Texas Fetal Heartbeat law on procedural grounds, without reaching whether the law was constitutional. In so doing, SCOTUS left open other litigation paths for opponents of the law.

One of those paths was in the state courts. And indeed, a state court judge issued an injunction temporarily protecting Planned Parenthood from lawsuits under the law. We’ll see how long that ruling stands.

But today the U.S. Department of Justice filed suit in federal court seeking to halt the law. You can read the Complaint. As of now, there are no motion papers on the federal PACER electronic docket, but I would expect that soon.

I further noted:

“…. a problem for the DOJ, which is seeking an injunction to prevent private parties from suing. Even assuming the law is unconstitutional, I’m not sure there is an actual case or controversy — required for federal suit — until somone actually sues. Then the remedy is not an injunction, but dismissal of the lawsuit.

That’s the ingenious nature of the law. It creates a fear of lawsuits, but until there actually are lawsuits, there is no one against whom to issue an injunction. That’s why SCOTUS wouldn’t hear it — the government has no enforcement power, so naming Texas was held insufficient for SCOTUS to rule.”

DOJ now has filed an Emergency Motion seeking a Temporary Restraining Order and Preliminary Injunction:

The State of Texas adopted S.B. 81 to prevent women from exercising their constitutional rights. Even though “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992), Texas has banned abortions months before viability—at a time before many women even know they are pregnant.

When other States have enacted laws abridging reproductive rights to the extent that S.B. 8 does, courts have enjoined enforcement of the laws before they could take effect. In an effort to avoid that result, Texas devised an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand. The United States seeks a temporary restraining order or a preliminary injunction enjoining the enforcement of S.B. 8. This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States in ensuring that its States respect the terms of the national compact. It is also necessary to protect federal agencies, employees, and contractors whose lawful actions S.B. 8 purports to prohibit.

Although S.B. 8 was designed to create jurisdictional obstacles to the ability of women and providers to sue to protect their rights, those obstacles do not impede the relief sought through this suit—an action brought by the United States against the State of Texas itself. The United States has the authority and responsibility to ensure that Texas cannot insulate itself from judicial review for its constitutional violations and to protect the important federal interests that S.B. 8 impairs. Accordingly, this Court should enjoin enforcement of S.B. 8.

Here’s a portion of the argument around the problem of private plaintiff enforcement as a procedural impediment — the federal government has an independent interest that it can protect:

Texas’s primary tactic in the related litigation pending before the Fifth Circuit has been not to defend S.B. 8 on the merits but instead to contend that lawsuits filed to challenge the Act are procedurally flawed, principally arguing that the Ex parte Young exception to sovereign immunity is unavailable given S.B. 8’s novel enforcement scheme. That asserted procedural flaw is not implicated in this lawsuit, however, which is filed by the United States, and thus is not subject to the same jurisdictional hurdles that have thus far impeded other litigants. As explained below, the United States has the authority to sue the State of Texas, the State is a proper defendant against whom to seek relief, and this Court can enjoin Texas from enforcing S.B. 8 and thereby redress the United States’ injuries….

This litigation implicates numerous federal interests, which support the authority of the United States to seek equitable relief in this Court.

A suit by the United States in equity is appropriate based on the extraordinary facts of this case because Texas has sought to inhibit other pathways for federal judicial review of an enactment that clearly violates the constitutional rights of its citizens, thereby depriving individuals of an adequate and effective remedy at law. To begin, S.B. 8 is an extraordinary and unprecedented attempt to evade a State’s obligation to respect the Fourteenth Amendment through the mechanisms established by Congress. Texas has enacted a law that indisputably violates individuals’ constitutional rights, and has simultaneously structured that law to prevent the very individuals it injures from vindicating their rights through the established process of federal judicial review….

S.B. 8 seeks to thwart the mechanisms established by Congress and to circumvent Texas’s obligation to respect the federal constitutional right to abortion within its borders, by removing enforcement responsibility from state executive officials, who would ordinarily be enjoined under the doctrine of Ex parte Young—and thus far, it has largely succeeded….

The unique circumstances presented here—including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action—distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue….

Thus, the United States has authority to bring this equitable suit against Texas for its violations of the Constitution and interference with the administration of federal programs.

Considering the “emergency,” the Court did not set a particularly aggressive schedule. The hearing will be on October 1.


After the Court entered the scheduling Order, DOJ filed a motion to expedite the hearing for September 21, arguing that there was an ongoing deprivation of constitutional rights:

6. At bottom, S.B. 8 has thus far succeeded in depriving women of their constitutional rights while preventing women and providers from successfully seeking an injunction of enforcement of this plainly unconstitutional law. Indeed, one clinic attested that without “court ordered relief in the next couple of weeks, S.B. 8 will shutter most if not all of the remaining abortion clinics in Texas.” Dkt. 6-6 at 10. Emergency relief is necessary to ensure that, in the weeks prior to a preliminary injunction hearing, the State cannot continue to disregard the Constitution and further endanger the operations of abortion providers in the State.

The Court denied the motion to expedite.


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Any real court would tell them that the federal government has no jurisdiction or standing in this.

    Milhouse in reply to geronl. | September 17, 2021 at 1:37 am

    Any real court would tell them that the federal government has no jurisdiction or standing in this.

    That’s Texas’s opinion. The US claims that it does have independent standing, and it’s not obviously wrong. The courts will have to consider it and decide.

“Biden DOJ Files For Emergency Injunction Against Texas Fetal Heartbeat Law”

Damn! An emergeny injunction against heartbeats. That’s their biggest priority. Stopping fetal heart beats. What can I say? “Buck Fiden”?

    InEssence in reply to UserP. | September 16, 2021 at 11:49 pm

    They have priorities. They haven’t fired the FBI agents who covered for a guy who was raping the olympic gymnasts. These agents apparently committed criminal acts. So they must be for abortion, rape, and other crimes committed against females.

The private citizens the unconstitutional Texas law purports to deputize have no standing to sue either. Somehow, that defect gets glossed over. A private citizen has no concrete particularized injury from a random stranger obtaining a particular medical procedure. The court has no real ability offer a stranger redress for another stranger obtaining medical care either.

One of the most glaring constitutional defects in the Texas law is the attempt to evade judicial review. The concept of judicial review was born in Marbury v. Madison. No state legislature has been empowered with the ability to enact non reviewable legislation.

    The concept of judicial review was born in Marbury v. Madison.

    Sounds like a good opportunity to overturn the court’s original unconstitutional power grab.

      Yes, we have followed a progressive path and grade with the adoption of the Twilight Amendment (“penumbras and emanations”), not limited to the wicked solution (“planned parent/hood”). and other civil and public mischief. The Pro-Choice religion denies women and men’s dignity and agency (e.g. diversity [dogma]), and reduces human life to a negotiable asset under the color of law. One step forward, two steps backward.

    That’s where you’re incorrect. The law specifically gives them standing to sue.

    The private citizens the unconstitutional Texas law purports to deputize have no standing to sue either.

    Not true. They do have standing, because the Act specifically gives them it. Just like the environmental laws that give random people standing to sue.

    Eastwood Ravine in reply to Juris Doctor. | September 17, 2021 at 3:00 am

    The person the law is empowering is the father of the child, aka the fetus with a heartbeat.

    This law is aiming to correct a little of the injustice of Roe v Wade.

    The courts don’t actually review legislation. They review judicial decisions of lower courts. In that sense, this law does not, in any way, short circuiting judicial review. The judicial review process involves a case or controversy in a court of law, then a court decision, then an appeal of that decision, then a decision by the appellate court, and so on up the line.

    Any decision by any court based on this law is subject to judicial review, so claims that this law avoids judicial review are just plain false, or at least, misleading political talking points. Courts do not have the power to just erase a law by declaring it is so. They have no legislative authority under the constitution, they can’t tell the legislature of the state of the Texas, or any state for that matter, how to vote on proposed state laws, nor tell state judges how they must decide cases in state court. The federal courts can, however, review those cases, and they can enjoin enforcement actions by state officials, and reverse the decisions of state court judges.

    Really, judicial review is not the problem here. Get an actual case filed in court, and get it reviewed, probably will be dismissed on constitutional grounds, gets appealed, gets decided by a higher court, etc. etc. and, voila, you have your judicial review.

    I do agree with the notion that the fundamental flaw with this law is that it empowers any Tom-Dick-and-Harry to sue over matters that are none of their business. This aspect of the law is troubling, as it could be used for any number of nefarious political purposes, much to the chagrin of anti-abortion folks who may be happy with this particular law, but will not like it when their own cherished freedoms are sued out of existence.

    For me, the fundamental problem is the weaponization of the legal process, and the courts willingness to indulge those who would use it as a bludgeon to intimidate their enemies. My real complaint with S. B. 8 is not that there isn’t a judicial process, it’s that the process itself is so ponderous, expensive, threatening, and uncertain that the process is the punishment. This is not an egregious feature of just this particular law, it is a problem that is rampant throughout our legal system at every level.

A baby’s heart starts to beat around six weeks.

Is an [elective] abortionist now a hero?

The progressive liberals’ apology for the wicked solution is a straw clown dressed as a straw man.

There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion… and still six weeks. Baby steps.

This does not affect a woman’s right to self-defense. The edge cases of rape… rape-rape (“involuntary exploitation”) and incest (“superior exploitation”) can should be handled separately.

The Twilight Amendment (e.g. the rite to commit elective abortion, planned parent/hood if you can get away with it) is unconstitutional. The Supreme Court has the opportunity to overturn this precedent and quasi-amendment. The issue is not privacy, but homicide committed for social, political, commercial, environmental, and other light and casual causes.

Demos-cracy is aborted in darkness. #HateLovesAbortion

    rhhardin in reply to n.n. | September 16, 2021 at 9:45 pm

    There’s no heart at six weeks.

      A rudimentary pump evolves at an earlier stage, then from around six weeks there is a heart, observable and reproducible, that pumps blood.

      Fetal development

      Weeks 6 to 7

      Arm and leg buds start to grow.

      Your baby’s brain forms into 5 different areas. Some cranial nerves are visible.

      Eyes and ears begin to form.

      Tissue grows that will become your baby’s spine and other bones.

      Baby’s heart continues to grow and now beats at a regular rhythm. This can be seen by vaginal ultrasound.

      Blood pumps through the main vessels.

      A human life evolves from conception until Her Choice or her Choice. That said, a woman and man have four choices, and still six weeks. Baby steps.

      Ironclaw in reply to rhhardin. | September 16, 2021 at 11:35 pm

      Obviously you are incorrect since a heartbeat can be detected.

        Milhouse in reply to Ironclaw. | September 17, 2021 at 1:44 am

        He’s not obviously incorrect; it’s a question of terminology, not science. Texas calls the organ that produces that beat a heart; therefore it calls the beat a “heartbeat”. Rhhardin says it’s going to become a heart but it hasn’t yet, so it’s incorrect to call the beat it produces a “heartbeat”. There is no objective answer to this, because it’s not a scientific question. Science doesn’t care what things are named in English, or any other human language. But law does, and there’s a good case that morality does too.

          Arminius in reply to Milhouse. | September 19, 2021 at 12:12 am

          It’s beating and pumping blood. It isn’t on the way to becoming a heart. It is a heart. It may not be a fully developed human heart. A fetal heart doesn’t have 4 chambers until 8 weeks, and fully organized muscle tissue until 20 weeks. But then there are a lot of critters with hearts that don’t resemble a fully developed human heart and no one disputes they have hearts.

          The human brain isn’t fully developed until someone is in their mid 20s. Should abortion be legal until well after an individual is a legal adult since by this standard children don’t have brains? They have an organ in their head that will eventually become a brain.

          Milhouse in reply to Milhouse. | September 19, 2021 at 12:34 am

          Again, at what stage you call it a heart is not a scientific question. That is all. Rhhardin is entitled to his view on this non-scientific question. So is Texas. The baby doesn’t care what you call it, so long as you don’t kill it.

          Arminius in reply to Milhouse. | September 19, 2021 at 12:48 pm

          Somebody needs to tell the doctors and medical researchers publishing at the Journal of Ultrasound Medicine that when a heart becomes a heart, and does that organ actually produce a heartbeat, isn’t a scientific question. In fact they’re under the impression it’s a scientific question of no small importance.

          “Embryonic heart rate in the early first trimester: what rate is normal?

          Embryonic heart rates below 90 beats per minute at 6 to 8 weeks of gestation have been shown to be associated with a high likelihood of subsequent first trimester demise. The boundary between slow and normal heart rates has not been established, however, in that previous studies do not identify the heart rate for each gestational age at which prognosis plateaus. We evaluated sonograms of singleton pregnancies at 6 to 8 weeks to determine the relationship between heart rate and first trimester outcome in four gestational age subgroups: or = 100 beats per minute. At 6.3-7.0 weeks, prognosis improved up to 120 beats per minute, then plateaued. Heart rate norms could not be established at 7.1-8.0 weeks because of the small number of embryonic or fetal deaths in this age group; however, all embryos with heart rates below 110 beats per minute at 7.1-8.0 weeks died. We conclude that the lower limit of normal is 100 beats per minute up to 6.2 weeks’ gestation and 120 bpm at 6.3-7.0 weeks.”

          No scare quotes around the words heart or heart rates. And since at six weeks it is pumping blood through the admittedly primitive circulatory system it meets the scientific definition of heart: “The muscle that pumps blood received from veins into arteries throughout the body.” The fact that it is not yet a normal human heart is irrelevant. Fish have two chambered hearts, and reptiles and amphibians have three chambered hearts. Some children are born without normal human hearts; congenital heart defects (CHDs, approximately 1%), some critical meaning they require surgery to repair the heart within the first year of life the child will die.

          The fetus has a heart at 6 weeks since it meets the scientific definition of a heart; it pumps blood received from the veins to the arteries. That’s it; that all it needs to do. And if it isn’t functioning as a normal fetal heart at that stage of development the pregnancy is in danger. So at six weeks the fetal heart is performing an important function.

          That said, I don’t doubt that the Bolshevik redefinition of terms will airbrush articles such as the one I cite from the medical literature. The CDC is doing it for the definition of vaccine. Formerly vaccination and immunization could be used interchangeably, as the definition of vaccination (on their immunization basics page) stated that a vaccination when administered to a patient conferred immunity from the targeted disease. The root word of immunization is still the word immune. But since those mRNA shots do not cause an immune response that results in immunity from the targeted disease, it didn’t meet the definition. No problem, to satisfy their political masters they changed the definition. Now a vaccination when administered merely provides “protection” from the targeted disease. I’m so old I remember when you were vaccinated, you didn’t get the disease. If vaccinations didn’t provide immunity we’d still be dealing with smallpox and polio today.

          Now we’re calling what might be more properly called a treatment for a disease (or even a medical device) a vaccination because the CDC has decided that since the jab generally means you won’t get as a severe case of Covid you otherwise might, might, get (a great many people had such mild cases without any treatment they never knew they had it until they tested positive for Covid anti-bodies.

          According to the WHO, who redefined herd immunity between the summer and fall of 2020 at the behest of their political masters it still doesn’t do what a vaccine is supposed to do.

          Actually, the current redefinition is a new rewrite as the definition they didn’t mention natural immunity at all, and defined herd immunity as when a population achieves an indirect protection from a disease when a certain threshold of the population has been vaccinated. Probably because of the outcry from virologists angered by the WHO ignoring centuries of lessons-learned about how immunity works they now acknowledge natural immunity through previous infection. But the political narrative hasn’t changed and these mRNA jabs don’t qualify as vaccines per their definition.

          “‘Herd immunity’, also known as ‘population immunity’, is the indirect protection from an infectious disease that happens when a population is immune either through vaccination or immunity developed through previous infection. WHO supports achieving ‘herd immunity’ through vaccination, not by allowing a disease to spread through any segment of the population, as this would result in unnecessary cases and deaths.

          Herd immunity against COVID-19 should be achieved by protecting people through vaccination, not by exposing them to the pathogen that causes the disease. Read the Director-General’s 12 October media briefing speech for more detail.

          Vaccines train our immune systems to create proteins that fight disease, known as ‘antibodies’, just as would happen when we are exposed to a disease but – crucially – vaccines work without making us sick. Vaccinated people are protected from getting the disease in question and passing on the pathogen, breaking any chains of transmission. Visit our webpage on COVID-19 and vaccines for more detail. ”

          This definition of herd immunity contains a number of absurdities but that’s what happens when the politics are more important than public health. But the bottom line is per this definition the mRNA shots everyone is getting aren’t vaccines. If these were vaccines, the vaccinated would be protecting the unvaccinated. But everyone is panicking that the unvaccinated are “literally killing people” since the vaccinated are still getting the disease. According to Israelly statistics, the “vaccinated” are 6.5 times more likely to get Covid than those who’ve previously had Covid and haven’t been vaccinated. Because those who’ve been infected and recovered (global survival rate is over 99.9%) actually have immunity. These jabs don’t confer immunity.

          In 1965 the American College of Obstetricians and Gynecologists adopted a new definition of when pregnancy begins. Previously they defined conception as the beginning of pregnancy (synonymous BTW with human life). But then they realized in the late 1950s that the contraceptives that were then in clinical trials didn’t reliably prevent conception but sometimes worked by preventing implantation.

          So for political and perhaps more importantly legal considerations (abortion was still a felony in 49 of the 50 states, and illegal in all) in 1965 they changed their definition of the beginning of life to implantation so their members couldn’t be accused of performing chemical abortions by prescribing “The Pill.”

          I have no doubt that a profession that redefines medical terms to fit the needs of their members politics will get around to redefining what a heart is now that it’s an issue in these abortion law cases. But up until it became a political issue the scientific definition was simple; a muscle that pumps blood from the veins to the arteries.

The DoJ contention that the statue ‘indisputably violates the constitutional right to abortion’ is a hurdle for the DoJ, IMO. The statute doesn’t make abortion illegal. Abortion is allowed until the moment of viability. TX contends that moment occurs at 6 weeks.

The DoJ is eventually going to be forced to demonstrate why that isn’t valid by presenting their own expert testimony and data to tell a trial CT where viability begins. That’s the trap TX has set for DoJ as a secondary objective, whether by intent or not. The DoJ and abortion advocates have zero willingness to enter the discussion about viability because whenever it is today that point is not what it was in Roe. Medical science has moved that point much closer to begining of a pregnancy. Thus the DoJ will be forced into assisting undermining Roe which might eventually allow SCOTUS to take the easy way out; a return to Federalism.

Given the lack of appetite of the CT to make sweeping changes the easy course is to punt the issue by a return to Federalism in which each State is largely allowed to make it’s own law about abortion without interference. Massachusetts and Mississippi could then each enact the laws that reflect the wishes and culture of the population of their State.

You can’t get an injunction against a law.

    Milhouse in reply to rhhardin. | September 17, 2021 at 1:47 am

    Indeed you can’t, which is why the DOJ isn’t asking for one. It’s asking for an injunction against the State of Texas as a corporate entity, which includes its judicial system. We’ll see whether the federal courts agree that that’s possible.

One of those paths was in the state courts. And indeed, a state court judge issued an injunction temporarily protecting Planned Parenthood from lawsuits under the law. We’ll see how long that ruling stands.

I repeat the point I made in response to that post: The state enjoined specific defendants from suing PP. It was given a list of people who were particularly likely to sue, with explanations for why. Anyone else is still free to sue PP, which is why it hasn’t resumed killing babies. SCOTUS could have provided the same relief, had it been asked to.

Remember how Democrats lectured us on how ALL BLACK LIVES MATTER…except for these black lives of course. These black lives dont matter at all.

    Milhouse in reply to mailman. | September 19, 2021 at 12:37 am

    Hmm, they never actually told us all black lives matter. They just said “black lives matter” and we assumed they meant all. But they clearly didn’t. The black lives that matter most to them seem to be those of thugs and gangsters and worthless bums — precisely the ones that don’t matter to most normal people.

The Red States should collude against the Criminal Biden Regime
Stop sending tax dollars to the federal government which fund their Marxist death cult

On what legal grounds?

Just in: “DOJ asks for expedited Texas abortion law ruling: ‘Moloch is hungry and He must be fed!'”

I’m not sure there is an actual case or controversy — required for federal suit — until somone actually sues

We heard repeatedly in the run-up to the 2020 election that the courts couldn’t even hear cases requesting injunctive relief to the non-Legislatively imposed changes in voting laws / procedures because there was no harm until the election happened. Any bets on them being consistent to that when it comes to abortion?

The courts couldn’t hear cases after the election, either, because there was no longer any remedy available to the courts. Want to make a second bet here on court consistency when it comes to abortion?

    Rand in reply to ss396. | September 19, 2021 at 2:22 am

    I think you are totally right about that. The government can mess with our 1st, 2nd, 5th amendment, or any other of our precious rights, all of them, and you can just go pound sand at the court house to try to get them back. But abortion? The talking points from the feds on this are so sui generis. I hate advocates whose main arguments are little more than special pleadings. Hey, those legal hurdles and procedures you have to follow to defend your pesky freedoms, tough shit. But we, the powers that be, can’t be expected to jump through those hoops, because we and our concerns are special.

The right to abortion is written in invisible ink, unfortunately the brain of the Republican voter in the 90s was somehow that we needed George W Bush….

I am blessed with many friends of various religious and ethnic persuasions, and their backgrounds lead them to very different conclusions about where to draw that line where a life should be legally deemed to have come into being between conception and birth. Their reasons are many and varied, and some ring true to me, and some don’t, and of course, I’ve got my own morals and values I bring to bear in my own thoughts on the subject. Anybody who thinks that line is obvious, or can somehow be derived from some scientific empiricism or deductive or legal reasoning in a manner to satisfy everybody, or barely anybody, is just not being realistic.

Does everybody really think that the best place for this decision to be made is in the courts? Given all the diverse interests, values, morals, and perspectives, doesn’t it make more sense to arrive at that decision, that line where life legally begins, through some more democratic process? If the voters make a decision that I don’t like (and much to my annoyance they do this frequently) then at least I can say, well, that’s what my fellow citizens wanted, rather than some random cadre of unaccountable judges.

I am noticing an overuse of the “emergency”

I got an ingrown toenail .. it’s an emergency
Babies have got to die .. it’s an emergency

On what grounds? There is no legal basis for an injunction.