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Justice Department’s simple lawsuit could strike back effectively against Texas’ abortion ban | COMMENTARY

Attorney General Merrick Garland announces a lawsuit to block the enforcement of a new Texas law that bans most abortions, at the Justice Department in Washington, Thursday, Sept. 9, 2021. (AP Photo/J. Scott Applewhite)
Attorney General Merrick Garland announces a lawsuit to block the enforcement of a new Texas law that bans most abortions, at the Justice Department in Washington, Thursday, Sept. 9, 2021. (AP Photo/J. Scott Applewhite) (J. Scott Applewhite/AP)

Various scholars had presented concrete strategies for fighting back against the Texas abortion ban, Senate Bill 8, which is patently unconstitutional in preventing abortions that are plainly protected under Roe vs. Wade and its progeny.

Laurence Tribe, emeritus professor of law at Harvard, suggested that anyone taking up the invitation in the bill to be an abortion bounty hunter — by bringing lawsuits against abortion providers and abettors (and collecting $10,000 and attorneys’ fees) — could be subject to imprisonment or fines under federal criminal code Section 242. I posited that private persons could sue bounty hunters under the civil code, turning the tables on the bounty hunters by subjecting them to compensatory and punitive damages and attorneys’ fees. And others have cited actions related to the Freedom of Access to Clinic Entrances Act, or the FACE Act.

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But in the end, the U.S. Justice Department has brought a lawsuit with a bare-bones complaint under its general “authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution.” It also cites the federal government’s obligation to protect abortion in the case of rape and incest, which are not exceptions in the Texas statute.

Atty. Gen. Merrick Garland, who along with President Biden vowed to marshal every federal resource against the law, called it plainly in the suit:

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In enacting extreme constraints on the performance of abortions, and combining that with a bizarre and mean-spirited enforcement scheme, Texas’ goal “was 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.”

Since then, the lawsuit continues, “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.”

This simple approach is unusual but not unprecedented. A 2012 case against Arizona took a similar tack of asserting the Constitution’s preemption and supremacy clause to undo an Arizona scheme that tried to negate federal enforcement of U.S. immigration laws. (The district court entered an injunction and the case was eventually settled.)

Texas can be expected to jump up and down challenging the Justice Department strategy, asserting that the feds are trying to be all-purpose enforcers of U.S. law even in the absence of particular cases or controversies. But the department can parry that there is in fact a case and a controversy: Texas’ cheeky state-versus-federal-government effort to undo Roe vs. Wade, the law of the land, and prevent court review of its unconstitutional action.

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The DOJ lawsuit signals that criminal charges aren’t in the offing against S.B. 8 abortion bounty hunters. That’s no surprise — an enforcement lawsuit brought on the basis of S.B. 8 would, after all, rely on a duly enacted Texas statute. That law may be an outlier, but it is still state law for now, and that alone could trigger reticence on the part of federal prosecutors as well as give rise to a persuasive defense against sending someone to jail for invoking it.

Lawsuits against wannabe S.B. 8 enforcers might still go forward. But the real issue at this point is freezing enforcement of the Texas statute altogether by getting an injunction in district court based on the Justice Department lawsuit, and then allowing the law to be judged on its merits.

Indeed, if the Justice Department case reaches the Supreme Court, look for the court to do what it could — and should — have done two weeks ago: hold the case, while it considers Dobbs vs. Jackson Women’s Health Organization, the Mississippi 15-week abortion ban due for oral arguments sometime this fall. Once the justices determine in that case whether Roe remains good law, the S.B. 8 case can return to Texas federal court to apply that ruling.

It may be hard to accept all this maneuvering as a triumph for abortion rights already on the books, but in the dismal slough the Republicans in Texas have dragged us into — with women forced into unwanted pregnancies and clinics closing their doors — keeping S.B. 8 at bay while the battle over its merits is joined would be no mean achievement.

Harry Litman (Twitter: @HarryLitman) is the legal affairs columnist for the Los Angeles Times, a practicing private attorney and a professor of constitutional law. He is a former U.S. attorney and deputy assistant attorney general.

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