Desiree Rios/Bloomberg via Getty Images
- The Department of Justice is suing Texas over a state law that effectively bans abortion after 6 weeks.
- Experts say the federal government has a clear interest in protecting our federal constitutional rights.
- The DOJ is applying the Supremacy Clause of the Constitution, which asserts that federal constitutional rights trumps state law.
The Department of Justice sued Texas on Sept. 9 over S.B.8, the law that went into effect on Sept. 1 that bans women from getting abortions after 6 weeks of pregnancy.
The lawsuit asserts that S.B.8 goes against women’s constitutional rights to end the pregnancy before viability.
Experts say the federal government has a clear interest in protecting federal constitutional rights.
Reproductive health advocates feel hopeful about the lawsuit and would like to see the law immediately put on hold before ultimately being ruled unconstitutional.
“The federal government and Biden administration have so much power to protect Texans by enshrining abortion rights into law, and their urgent action is more important than ever,” Caroline Duble, the political director with the abortion advocacy firm Avow in Texas, told Healthline.
The ban violates the Constitution
“It’s very, very clear — it’s not under dispute — that people have a right under the 14th Amendment of the Constitution to end a pregnancy before viability,” says Rupali Sharma, senior counsel and director at the Lawyering Project, a group dedicated to improving access to reproductive healthcare, noting that the dispute is really around whether that should continue to be the case.
Viability is determined by the medical community, but it is widely agreed upon that 6 weeks of gestation is nowhere near viability, which is generally thought of at around 23 weeks.
There’s no question that S.B.8 violates the right to abortion as it exists today, according to Sharma.
States can pass restrictions related to health and safety and persuade people not to have abortions. Still, they cannot ban abortion before the viability mark or force people to decide it.
The federal government’s approach
For the Department of Justice, its decision to file a lawsuit will come from the position that the federal government has a clear interest in protecting federal constitutional rights.
In Texas, those constitutional rights are being violated, according to the law’s critics.
According to Duble, every branch of the government has a responsibility to uphold the Constitution and protect our rights.
“The Supreme Court chose to bury their heads in the sand, and so the executive branch is stepping up to ensure our rights and force the courts to do their duty,” Duble said.
As a result, on Sept. 9, the DOJ sued Texas because the state is violating a federal constitutional right.
The DOJ is applying the Supremacy Clause of the Constitution, which asserts that federal constitutional rights trump state law.
“Those rights are supreme over any state law,” Sharma said.
The lawsuit also asserts that the ban violates the doctrine of intergovernmental immunity, which prevents the federal and state governments from intruding on each other’s sovereignty.
“The due process clause and the equal protection clause of the 14th Amendment have been interpreted to mean that states cannot violate the constitutional rights of their residents,” Duble said.
The law was designed not to be able to be successfully challenged in federal court.
Instead of Texas enforcing the law, the state placed enforcement on individuals who could sue those who facilitate abortions.
As a result, the federal government is also responsible for ensuring certain federal employees who help people access abortion care or reimburse people for abortion care can continue to carry out their duties without the threat of being sued.
The DOJ is “seeking a declaratory judgment and preliminary and permanent injunction to stop the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B.8,” Duble said.
The anti-abortion group, Texas Right to Life, called the DOJ lawsuit “flawed” because “the government of Texas has no authority to enforce the law. Instead, private citizens are responsible for holding abortionists accountable to the policy.”
“Joe Biden has a long record of failures with protecting the unborn and pregnant women. He is a puppet of the radical abortion agenda, and his DOJ will quickly find that they do not have jurisdiction to stop the Texas Heartbeat Act,” Elizabeth Graham, vice president of Texas Right to Life, said in the statement.
What to keep an eye on
There are a few directions the case could go.
The federal government has already asked for the law to be permanently invalidated because it’s unconstitutional.
The federal government may also ask for emergency relief.
The case will first go to a federal district court, which will decide whether the law is unconstitutional for it to be struck down.
If S.B.8 is not struck down, the lawsuit will move onto the court of appeals and ultimately the U.S. Supreme Court.
Given the history of the defendants, and their willingness to enact the law in the first place, Rupali suspects they may appeal a ruling that the law is unconstitutional before the federal district court.
What the experts think of the strategy
The law, which went into effect Sept. 1, has had a devastating effect on pregnant people in Texas attempting to access abortion care, a protected right under the Constitution.
The federal government is now stepping in, essentially saying S.B.8 is unacceptable.
“I think it’s a very positive, encouraging step that the federal government is challenging the law,” Rupali said.
Duble says Avow is grateful the DOJ has stepped in.
“This lawsuit is a great example of the type of bold solutions we need to fight back against extremists in government, like the ones we have in Texas, that will stop at nothing to try to ban abortion — no matter what it costs,” Duble said.
The bottom line:
The Department of Justice sued Texas on Sept. 9 over S.B.8, the law that went into effect on Sept. 1 that bans women from getting abortions after 6 weeks of pregnancy. The lawsuit asserts that Texas is violating people’s constitutional right to get an abortion. Reproductive health advocates are hopeful about the lawsuit and expect the defendants in Texas to appeal if the law is struck down.