The Justice Department’s tough battle against Texas’ abortion ban

DOJ’s big question: block Texas agents, including private parties, from enforcing the ban

Texas has thwarted such fair efforts to prevent the law, known as SB8, from coming into force because of how the legislature crafted the mechanism to enforce the ban.

Instead of tasking government officials with enforcing the ban, through criminal or regulatory penalties, the law provides for private citizens to punish clinics or anyone else who facilitates the procedure for performing an abortion prohibited by law. They can do so by filing a private civil lawsuit in Texas state courts, a lawsuit that includes the threat of at least $ 10,000 in damages and the potential for a court order to close the clinic.

Texas explicitly banned government officials from enforcing the law, depriving abortion rights advocates the normal path they have followed in past abortion cases, where they have successfully called for court orders to block specific government officials in charge of abortion. apply a restrictive law.

“The obvious – and expressly acknowledged – intent of this legal scheme is to prevent women from exercising their constitutional rights by frustrating judicial control for as long as possible,” Attorney General Merrick Garland said in the lawsuit Thursday. “So far, the law has had its intended effect.”

The Department of Justice is trying to fix this in a very bold way. The court is being asked to prevent “private parties from filing a claim under SB 8” from enforcing the law, as the Department of Justice defines these private parties as “agents” of the state.

That request is “the whole ball game,” said Steve Vladeck, a professor at the University of Texas School of Law and a CNN Supreme Court analyst.

In doing so, the Department of Justice seeks to harness its ability to sue the state at large.

But this does not take the next step in the DOJ’s arguments (that all private citizens should be treated as state agents for the purposes of blocking the law).

“This would be unprecedented for a ban of this magnitude,” said Roger Severino, who served as a civil rights lawyer in the Trump administration’s Department of Health and Human Services.

“I had never heard of a court order being applied to all citizens of a state, let alone one of the largest in the country. But that is exactly what they asked for,” Severino added. , who is now a senior member of the Conservative. center of ethics and public policies of the think tank.

Why the U.S. government says it has reason to sue

The DOJ’s request for inhibition is its Ave Maria request, but it is not the only aspect of the lawsuit that puts the Biden administration on unstable procedural ground.

Even before a court considers what to do about the law, it will need to verify that the United States incurs the types of damages arising from the prohibition (a threshold known as “permanent”) that make it appropriate for a court to intervene. in the dispute.

The department makes two separate standing arguments. One is that the Texas ban imposes harm on federal personnel whose duties include ensuring access to abortion for people in charge of the federal government, because Texas law exposes such personnel to a private dispute of application of the SB8 if it helps a woman to have an abortion after six weeks. .

In this regard, the Justice Department also argues that the government will incur costs for having to transport out-of-state people in its care to Texas so that they can obtain the procedure.

“The question is, is it enough to harm the United States like the United States instead of the patients?” said David Cohen, a professor at Drexel Kline Law School and co-author of the book “Obstacle Course: The Daily Struggle to Get an Abortion in America.”

Among other marked issues, the lawsuit alleges that Texas law could interfere with the Texas Department of Defense’s ability to act in the event that the mother’s life is in danger or if the pregnancy whether the result of rape or incest.

What is parens patriae? And why it matters

The department makes another important argument: the U.S. government has the right to file a lawsuit against Texas because of how the ban “blatantly violates the constitutional rights of the general public.”

This ongoing argument is based on a legal concept known as parens patriae, said Vladeck, who argues that the government is a representative of its citizens and can sue to claim the rights of those citizens.

It’s a “well-trodden” legal concept, Vladeck said, but it’s on “ground that hasn’t been trodden in a while.”

The lawsuits refer several times to the “plan” to “evade” the Constitution and “avoid” liability. The department says Texas “has made unprecedented efforts to disguise its attack on constitutionally protected rights.”

This is part of the reason why the United States says it has grounds to sue, to vindicate the rights of women and clinics that have been left out of the normal judicial process, because of the clever design of the ban.

What are the next steps?

First, a district court judge will consider the case. He is currently assigned to U.S. District Judge Robert Pitman, the same judge who also presided over the clinics’ challenges to Texas law and who had shown sympathy for his arguments, before the 5th Court of Appeals. of the United States Circuit put its proceedings on hold. .

But no matter what Pittman does, the waters only become more rocky for the Department of Justice when the case reaches the 5th Circuit and then the U.S. Supreme Court.

“The Fifth Circuit and the Supreme Court are not good for abortion rights, so they could obviously have very narrow procedural interpretations,” Cohen said.

As Jessie Hill, a professor and associate at Case Law University’s Faculty of Law, noted in an email to CNN, “the final arbiter of this lawsuit will be the same Supreme Court that declined to intervene” when the clinics d abortion requested their intervention.

The Supreme Court refused to give “plaintiffs” the advantage of doubt over difficult procedural issues [the case] “The court may be more willing to give some deference to the DOJ, but I think it will still be an uphill battle.”

The potential for a symbolic, but not practical, victory for the DOJ

In his speech Thursday, Garland repeatedly argued that other states could take Texas ’approach to avoid federal review of laws that undermine not only abortion rights, but other rights protected by the Constitution and the precedent. judicial.

Once there in court, DOJ lawyers could put an even sharper point on this argument: if Conservative judges don’t care how the tactic has violated abortion rights, they’ll be worried that blue states will pass similar laws. to follow gun rights?

“This kind of scheme to repeal the United States Constitution is an issue that all Americans, regardless of their policy or party, should fear. If it prevails, it can become a model for action in other areas. , from other states, and with respect to other constitutional rights and judicial precedents, “Garland said.

“We don’t need to think much or much about realizing the damage that would be done to our society if states were allowed to enforce laws that would empower any private person to violate constitutionally protected rights in any other way that way.” added.

However, if the department cannot obtain the general order seeking to block the SB8 enforcement mechanism, it is still possible that the case will end in a ruling declaring the law unconstitutional. This may not be enough for clinics to resume abortion after six weeks. If small-sized private citizens have not been specifically blocked by court order to impose the ban on private litigation, abortion providers should defend themselves against state lawsuits. And even if providers eventually win these cases, the SB8 makes the legal battle so resource-consuming that many clinics are not yet ready to reopen their doors.

But a declaratory judgment stating that the law was unconstitutional would still be a symbolic victory for the Biden administration and would send a signal to other states that were thinking of mimicking the Texas approach.

A Supreme Court ruling stating that Texas law was unconstitutional, but failing to explicitly block all citizens from attempting to enforce it, would also give the court the opportunity to handle the case in a way that did not explicitly annul Roe v Wade. In practice, this may not affect Texas clinics that could not yet resume the procedure and Texas women that therefore could not yet obtain it.