DOJ Pushback on Texas Abortion Ban Is a Welcome Sign

Like nearly everyone else on the left, I've been waiting for U.S. Attorney General Merrick Garland and the department he leads to repair the rule of law in the aftermath of the Trump presidency.

Although Garland may never muster the courage to go after the former President and his inner circle for their roles in any number of crimes, including inciting the January 6 insurrection, he may have finally found his spine on the issue of abortion. And not a moment too soon.

This is vigilante justice, pure and simple, and it openly violates both Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the constitutional right to abortion.

On September 9, at Garland's direction, the Department of Justice filed a twenty-seven-page federal complaint to overturn Texas's brutal new abortion law. The complaint seeks to stop the state, its officials, and any private parties from enforcing the law, and to have the entire statutory scheme declared unconstitutional.

The complaint is impeccably drafted and highly detailed. Best of all, as Garland explained in a press conference, the department is fully committed to defending abortion rights.

Overturning the Texas law, however, won't be easy.

Enacted as Senate Bill 8 and known as the "Texas Heartbeat Act," the new law bans doctors from performing abortions once a fetal heartbeat can be detected, usually six weeks after pregnancy, and well before most people realize they are pregnant.

In a cynical twist designed to evade federal court review, SB 8 empowers private individuals, not state or local government officials, to bring civil enforcement actions against anyone who knowingly "aids and abets" an abortion beyond the six-week limit. And while the statute precludes lawsuits against pregnant people, it renders doctors and nurses, along with the family members and friends of pregnant people, fair game.

SB 8 makes no exceptions for pregnancies resulting from rape or incest. Successful plaintiffs are entitled to collect a minimum of $10,000 in damages, plus attorney's fees from individuals found to have violated the law. Successful defendants are entitled to no compensation.

This is vigilante justice, pure and simple, and it openly violates both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the twin pillars of the constitutional right to abortion. Although the Texas statute does not explicitly purport to overturn Roe and Casey, the bounty system it establishes is designed to intimidate abortion providers and drive them out of business.

SB 8 took effect on September 1. Since then, many abortion clinics across the state have stopped providing services or reduced their intake by an estimated 90 percent to comply with the law.

Shamelessly, the U.S. Supreme Court has refused to intervene. In a 5-4 ruling released just before midnight on September 1, the court declined to block the law, rejecting a petition filed by a large group of abortion providers and supporters. The ruling was issued without the benefit of full briefing or any oral argument as part of the court's controversial and rapidly expanding "shadow docket" of cases decided on an emergency basis and removed from public scrutiny.

The five-member majority consisted of Justices Samuel Alito, Clarence Thomas, and Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Together, they wrote a terse one-page order, which none of them had the integrity to sign. They took no position on the constitutionality of the Texas law, but questioned whether state officials could be enjoined from enforcing the statute since the law vested enforcement powers in private parties. Instead of resolving the issue, even provisionally, they let the law stand, subject, in their words, to future "procedurally proper challenges."

Chief Justice John Roberts and the panel's three liberals--Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan--penned blistering dissents.

Unlike the rejected petition, the Department of Justice's complaint names the state itself as the sole defendant. As authority for the injunctive and declaratory relief it seeks, the complaint cites Roe and Casey, together with the Supremacy Clause of the Constitution, which makes the Constitution and the laws of the United States "the supreme law of the land," and the Fourteenth Amendment, which applies federal constitutional rights to the states.

Some states will likely ban all abortions.

The complaint also relies on the federal All Writs Act, which was originally adopted as part of the Judiciary Act of 1789, and empowers the federal courts to issue all writs and orders "necessary or appropriate in aid of their respective jurisdictions."

Tracking many of the arguments advanced by the Supreme Court dissenters, the complaint alleges that Texas cannot evade responsibility for the law by deputizing private parties to enforce it. In such a context, the department contends, the deputized private parties must be considered state actors subject to Constitutional standards and restraints.

This is a solid, procedurally proper argument that should prevail, subject to one potential fatal flaw: The argument will remain valid only as long as the Supreme Court upholds Roe and Casey.

The two core precedents will again be at risk during the court's upcoming term, when the high tribunal will hear Dobbs v. Jackson Women's Health Organization, which will test the constitutionality of a Mississippi law that (with limited exceptions) bars abortions after the fifteenth week of pregnancy. In a brief filed in July, Mississippi asked the court to jettison Roe and Casey, a request backed by amicus curiae ("friends of the court") briefs from the ultra-right.

Should Roe and Casey fall, anti-abortion laws like SB 8, which is far more draconian than Mississippi's statute, will proliferate across red-state America. Some states will likely ban all abortions.

Even then, however, the fight for reproductive rights won't be over. Advocates of abortion rights are calling for passage of the Women's Health Protection Act to codify a federal statutory right to abortion. They should be joined in that effort by other grassroots democratic movements to promote a broad and far-reaching social justice agenda to carry us forward into the next decade and beyond.

In the meantime, let's see what Garland and the Justice Department can do to hold the line in Texas.