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Pro-choice protesters march down Congress Avenue outside the Texas State Capitol in Austin on May 29, 2021. (Photo: Sergio Flores/Getty Images)

'Game-Changer': Biden DOJ Applauded for Suing Texas Over New Abortion Ban

"Thank you, President Biden and the Department of Justice, for joining this fight with us to protect Texans from this dangerous, unjust, and unconstitutional law."

Jessica Corbett

Reproductive rights advocates on Thursday praised the Biden administration for legally challenging Texas' new anti-choice measure banning the termination of pregnancy after six weeks and empowering "vigilantes" to sue anyone who "aids and abets" such an abortion.

"It's a game-changer that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas and disarm vigilantes looking to collect their bounties."
—Nancy Northup, Center for Reproductive Rights

U.S. Attorney General Merrick Garland announced the Department of Justice's lawsuit (pdf) against the state, filed in a federal court in Texas, during a press conference Thursday afternoon, saying that "the act is clearly unconstitutional under long-standing Supreme Court precedent."

The suit comes after the U.S. Supreme Court allowed the Texas law, Senate Bill 8, to take effect last week, provoking widespread condemnation—including from President Joe Biden, who said that the justices' overnight ruling was "an unprecedented assault on a woman's constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years."

Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America, applauded the Justice Department's filing, which came after Garland promised earlier this week that the DOJ—under pressure from supporters of reproductive freedom, including congressional Democrats—would "explore all options" to challenge the law.

"This is a needed announcement," McGill Johnson said in a statement. "Thank you, President Biden and the Department of Justice, for bringing the full might of the federal government to protect Texans from this dangerous and unjust law."

"Right now patients across Texas are scared, they are confused, and they are being left with nowhere to turn to access safe, legal abortion," she explained. "Texans deserve the freedom and power to control their own bodies, their own decisions, and their own lives."

"Planned Parenthood will never abandon our patients, and we will do everything in our power to restore and protect access to abortion across Texas and the rest of the country," McGill Johnson vowed. "We hope this important next step by the Biden administration will help restore Texans' access to the health care they need."

In a series of tweets Thursday, VICE's Carter Sherman shared scenes from a Whole Woman's Health abortion clinic in Fort Worth, Texas, which the reporter said has had to turn away at least 70 patiences since the law took effect earlier this month.

In a follow-up tweet about the patient who was just one day too far along in her pregnancy, Sherman clarified that "even if she'd been under the six-week mark, the woman wouldn't be able to get an abortion TODAY. That's because Texas has a law that requires abortion patients to come to a clinic, undergo counseling, wait 24 hours, and come back for the procedure itself."

As on-the-ground reporting confirmed the urgency of the fight against S.B. 8—which lawmakers in other GOP-controlled states are already working to replicate—reproductive rights advocates celebrated the DOJ intervention as a much needed development.

"It's a game-changer that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas and disarm vigilantes looking to collect their bounties," said Center for Reproductive Rights president and CEO Nancy Northup, referencing that anyone successfully sued under S.B. 8 could be forced to pay a minimum of $10,000 in "statutory damages."

"Right now, and every day this law is in effect, patients are being denied access to essential healthcare," she said, "and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants, and others with pre-existing obstacles to access healthcare."

The DOJ's complaint says that "Texas enacted S.B. 8 in open defiance of the Constitution," pointing out that the statute prohibits not only "most pre-viability abortions, even in cases of rape, sexual abuse, or incest" but also "any effort to aid—or, indeed, any intent to aid—the doctors who provide pre-viability abortions or the women who exercise their right to seek one."

Noting that the state's "unprecedented scheme" enabling anti-choice vigilantes to enforce the law is clearly intended to make S.B. 8 harder to challenge in court, the suit says that "it takes little imagination to discern Texas' 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."

The U.S. government, the complaint continues, "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 government also brings this suit to protect other federal interests that S.B. 8 unconstitutionally impairs," the suit adds, explaining that the Texas statute conflicts with U.S. law "by purporting to prohibit federal agencies from carrying out their responsibilities under federal law related to abortion services."

While welcoming the DOJ's latest move, reproductive rights supporters are also calling for further action at the federal level—especially with the right-wing U.S. Supreme Court set to hear a separate case that experts, activists, providers, and patients fear could overturn Roe, the 1973 ruling that affirmed the constitutional right to abortion before viability.

In response to Texas Republicans enacting S.B. 8, House Speaker Nancy Pelosi (D-Calif.) announced that the lower chamber will vote later this month on legislation that would codify Roe into law. However, with an evenly divided Senate and the potential for a GOP filibuster—unless Democrats abolish that rule—the chances of the bill reaching Biden's desk remain unlikely.


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