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.
From the Complaint:
1. It is settled constitutional law that “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); accord Roe v. Wade, 410 U.S. 113 (1973). But Texas has done just that. It has enacted a statute banning nearly all abortions in the State after six weeks—months before a pregnancy is viable….
2. Texas enacted S.B. 8 in open defiance of the Constitution…. Instead of relying on the State’s executive branch to enforce the law, as is the norm in Texas and elsewhere, the State has deputized ordinary citizens to serve as bounty hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights. And Texas has mandated that its state judicial officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably burden constitutionally protected rights.
3. It takes little imagination to discern Texas’s goal—to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review Thus far, the law has had its desired effect. To date, abortion providers have ceased providing services prohibited by S.B. 8, leaving women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this flagrant deprivation of rights, S.B. 8 remains in effect.
4. The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.
5. The Government also brings this suit to protect other federal interests that S.B. 8 unconstitutionally impairs….
6. The United States therefore seeks a declaratory judgment that S.B. 8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity. The United States also seeks an order preliminarily and permanently enjoining the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8.
That last sentence is the 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.
Texas Attorney General Ken Paxton responded:
Today the Biden Administration sued every individual in #Texas. Biden should focus on fixing the border crisis, Afghanistan, the economy and countless other disasters instead of meddling in state’s sovereign rights. I will use every available resource to fight for life.
I don’t think the law is going to survive s long as Roe v. Wade is the law of the land, it’s just a matter of when the judicial posture is right to strike it down.DONATE
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