The Department of Justice is suing Texas over its newest abortion law. The law, TX SB8, became effective on September 1, 2021, and is noteworthy for two reasons. First, as it prohibits women from having an abortion after a fetal heartbeat is detected—anytime after six weeks—it is the most restrictive abortion law in the US. Secondly, the law deputizes citizens to enforce its requirements.
The Supreme Court Vote
The Supreme Court, in a 5 to 4 vote, decided not to block the law on the evening of September 1. Chief Justice John G. Roberts Jr., who President George W. Bush nominated in 2005, sided with the court’s left-leaning members in their dissent.
“The statutory scheme before the Court is not only unusual, but unprecedented,” Justice Roberts wrote in his dissenting opinion. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”
Planned Parenthood and the Bill’s Text
Planned Parenthood spoke to the extremely restrictive nature of the new law in their September 2 press release. “The law bans abortion as early as six weeks into pregnancy—before many people even know they’re pregnant,” says the non-profit organization. “Approximately 85 to 90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning this law will decimate abortion access in the state.”
The method of enforcement is also unprecedented. The bill’s text reads that the law “shall be enforced exclusively through […] private civil enforcement,” meaning family, friends, neighbors, and even strangers—regardless of their involvement—can bring a lawsuit against parties that aided or abetted an abortion. The text indicates that even an Uber or Lyft driver who transports a woman to get an abortion can be sued.
According to the legislative text, “If a claimant prevails in an action brought under this section, the court shall award […] statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this chapter.”
Planned Parenthood, in their press release, referred to this method as a “bounty-hunting scheme, encouraging private individuals to sue anyone in Texas who violates the law.”
The Department of Justice Lawsuit
On September 9, the Department of Justice (DOJ) sued Texas, arguing that the new abortion law was enacted “in open defiance of the Constitution.”
At the press conference last Thursday, Attorney General Merrick Garland said, “Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the state of Texas.” Garland went on to explain why the DOJ took issue with the bill.
He first reiterated how the law bans abortions before women even know they’re pregnant — before a pregnancy is viable. “It does so even in cases of rape, sexual abuse, or incest,” he said. “And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.”
Garland denounced the Act as unconstitutional under long-standing Supreme Court precedent. To support this claim, he cited the following words from Planned Parenthood v. Casey: “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
According to Garland, Texas does not dispute that the law violates the aforementioned precedent. Instead, designed within the statute is a scheme to insulate the State from responsibility. Garland explains how the law “deputizes all private citizens – without any showing of personal connection or injury – to serve as bounty hunters,” instead of relying on Texas’s executive branch to enforce the law—“as is the norm in Texas and everywhere else.”
As the law is cleverly crafted to circumvent constitutional rights, Attorney Garland voices his concern that if such a statute could become law in Texas, it might encourage copycats to pass similarly extreme legislation.
“This kind of scheme to nullify the Constitution of the United States is one that all Americans – whatever their politics or party – should fear,” he said. “If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”
As he was bringing his remarks to a conclusion, Garland said, “The Department of Justice has a duty to defend the Constitution of the United States and to uphold the rule of law. Today, we fulfill that duty by filing the lawsuit I have just described.”
To read Attorney General Garland’s full address, click here.
Gov. Abbott Defends New Abortion Law
During a press conference unrelated to the abortion law, a reporter asked Texas Governor Greg Abbott why he is okay with forcing a rape or incest victim to carry a pregnancy to term under the new law. Gov. Abbott responded, saying, “It doesn’t require that at all because obviously, it provides at least six weeks for a person to be able to get an abortion. So for one, it doesn’t provide that.”
“That said, however,” he continued, “let’s make something very clear: rape is a crime, and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them, and getting them off the streets.”
“So goal number one in the state of Texas is to eliminate rape so that no one—no person—will be a victim of rape. But in addition to that, we do want to make sure that we provide support for those who are victims of rape,” he said.
Gov. Abbott’s response drew even more criticism to the new abortion ban. Among one of those critics is Amy Jones, the chief executive officer of the Dallas Area Rape Crisis Center. “His comments are confusing to me because they certainly do not seem to reflect the realities of this law,” she told the Associated Press on September 7.
“Certainly it is in our mission statement to work to end sexual violence,” Jones continued. “That is why we exist, but we are also very aware that that is an aspirational goal that yes, we do believe that this is a preventable crime, but it if it were that easy, rape would no longer exist.”
When Gov. Abbott signed the “heartbeat bill” into law back in May, he voiced his support for the strict ban on abortions. “Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” he said. “In Texas, we work to save those lives, and that’s exactly what the Texas legislature did this session.”