The Biden Justice Department filed suit against the state of Texas on Thursday in a bid to block the state’s new abortion law, which bans the procedure as early as six weeks into pregnancy, while also providing legal recourse for private citizens against anyone who assists a woman in killing her unborn child.
At a Thursday press conference, Attorney General Merrick Garland said the ban is “clearly unconstitutional under longstanding Supreme Court precedent.”
The suit, filed in a federal court in Austin, asks a judge to declare the measure unlawful and block its enforcement to “protect the rights that Texas has violated,” according to the Washington Post.
Garland said the law is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity. The U.S. government has “an obligation to ensure that no state can deprive individuals of their constitutional rights,” he said.
Earlier this month, the Supreme Court decided in a 5-4 vote to let the law go into effect – with the court’s three liberal justices, Elena Kagan, Sonia Sotomayor and Stephen Breyer, joined by Chief Justice John Roberts in their dissent.
Constitutional scholar Jonathan Turley dissects what’s going on:
The announcement in the press release came after President Joe Biden promised a “whole government” response to the new Texas abortion law. However, Garland was pledging to enforce a law that has long been robustly enforced. The Freedom of Access to Clinic Entrances Act (FACE) to “protect those seeking to obtain or provide reproductive health services.” It specifically protects against the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services or to exercise the First Amendment right of religious freedom at a place of religious worship.
That is not the basis of the new threat posed by the Texas law to abortion services. The Texas law exposes providers to private enforcement of a rule that sets an abortion bar during the pre-viability stage of a pregnancy.
The fanfare given by the DOJ to the use of the FACE reflects the limited range of possible options for the Justice Department. Indeed, as I previously wrote, efforts to create a new federal law or new federal enforcement effort to create a new basis for challenges by pro-life litigators.
The fact is that a greater challenge to Roe is not coming from Texas but Mississippi. The Court already has a case on the docket, Dobbs vs. Jackson Women’s Health Organization, that could roll back on Roe and allow for greater pre-viability limitations. Conversely, the Court could ultimately decline to review the Texas law which is likely to be declared unconstitutional under existing case law by the lower courts.
The new Texas law allows for private enforcement, not citizen action to barricade or attack clinics. FACE already protects against such threats and has been used in the past to maintain access to clinics. In the meantime, the law will be challenged in the courts, which are likely to declare it unenforceable pending a new ruling from the Supreme Court on pre-viability state limitations on abortions.
Garland was clearly under pressure from Biden to promise some action. To his credit, he did not make the situation worse by creating a federalism challenge in addition to the current challenges in the federal courts.
