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Justice Department sues over “heartbeat” law

Good.

The Justice Department sued Texas on Thursday over its new abortion restrictions law, Attorney General Merrick Garland told reporters, a week after the U.S. Supreme Court refused to block the law.

Garland announced the lawsuit, filed in a federal district court in Austin, after abortion rights advocates, providers and Democratic lawmakers called for the Biden administration to act. Other legal challenges have been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland said.

The Texas statute, which went into effect Sept. 1, is considered one of the most restrictive abortion laws in the nation. It prohibits abortions once a “fetal heartbeat” — a term medical and legal experts say is misleading — can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

Garland said Texas’ statute is “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Previous laws aimed at restricting or stopping abortions have been struck down over the years by the Supreme Court. But this law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, not state officials or law enforcement. This makes it especially difficult to strike down in court because there is not a specific defendant for the court to make an injunction against.

The law empowers any private citizen in the nation to sue someone found to be “aiding and abetting” an abortion, including providers, doctors and even Uber drivers.

The law has seemingly brought most abortions to a halt in the state. Major clinics canceled appointments, fearful of being inundated with lawsuits in which they’d have to pay a penalty of at least $10,000 if they are found to be in violation of the law. Some clinics have even stopped performing abortions allowed under the new restrictions — before fetal heart activity is detected — out of fear of getting hit with lawsuits.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the lawsuit stated. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

[…]

Abortion providers and advocates applauded the Justice Department joining the legal battle to overturn the statute.

“It’s a gamechanger that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas,” Nancy Northup, president of Center for Reproductive Rights, said in a statement. “Right now, and every day this law is in effect, patients are being denied access to essential health care, and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants and others with pre-existing obstacles to access healthcare.”

Alexis McGill Johnson, Planned Parenthood Federation of America president, said in a statement the lawsuit was “a needed announcement” and thanked Biden and the federal government for the action.

Prior to Thursday’s announcement, legal experts expressed doubts as to how a federal lawsuit might work or how successful it might be. Because of the way the law is constructed, experts have been dubious about how the legal saga will play out in courts and those same challenges could impede efforts by the Justice Department. Federal lawmakers have also vowed to overturn the new restrictions by codifying Roe v. Wade in federal law, but those efforts likely face their own political challenges.

See here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, but I see this case in terms of two simple principles. One is that a state cannot abrogate a constitutional right. I think we all agree on that basic principle. Given that, and given that abortion is still a constitutional right under current law and precedent, this should be a slam dunk, despite SCOTUS’ cowardly and scurrilous hiding behind the “it’s too clever and complex for our wee little brains” dodge. And two, the targeting of completely unrelated people like Uber drivers is such an egregious overreach that it could be argued as an unconstitutional taking of their property. This law would still be unconstitutional if it didn’t put Uber drivers at risk, but their inclusion makes it extra special unconstitutional.

But really, we shouldn’t even be having this argument. This law is “clever” in the way that a grade schooler claiming that they can’t be made to do homework because it violates their religion is “clever”. It’s time that a court treated it with the contempt it deserves. The 19th, Mother Jones, Slate, Daily Kos, and the Chron have more.

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8 Comments

  1. Kibitzer says:

    KUFF: Good !
    KIBITZER: Good Grief !

    FOLLY BEGETTING FOLLY OR HOW AMERICA GETS CRAZIER BY DAY BY DAY

    How would you like having a restraining order slapped on you ?

    Think about this for a moment … a bunch of GOPPERs passes a extremist anti-abortion bill – no compromise needed because, you know, we have the power to ram it through — and now we have Biden — Commander in Chief of the even bigger ship of state than Abbott is sailing — file a lawsuit asking one friendly federal judge to slap a restraining order on 29 million Texans.

    The GOPPERs can’t be restrained when they do their thing in the Lege,  but that doesn’t mean — apparently — that  the Feds can’t round up the people of Texas and show them who is boss.

    THE DEFENDANTS: ALL PERSONS WHEREVER UNDER THE LONE STAR

    They don’t even bother to ask for class certification (as Whole Women et al did when they sued Judge Jackson and his clerk) because, you know, we are supreme and we can do what we want to vindicate the interest of the abortion industry and their customers. Consumer protection of a different order. Civil rights enforcement like you never seen it before.

    Nor did it apparently occur to them to name the officers of the court as the pivotal class of civil enforcers of SB8, you know, the ones that would actually e-file original petitions invoking a private cause of action under SB8, and would testify on the value of their fine legal work under the Lodestar, to be duly shifted to the targets of their litigation efforts when the time has come for judgment.  

    No, and for good reason: It might look bad for a Texas attorney – whether a DEM or a GOP — to later have to disclose that a restraining order or injunction had ever been obtained against her or him. If might be career-damaging, especially if they were to transfer to a different state. So why not target the entire population of Texas instead. Let us hold them all accountable for the dastardly deeds committed by the political leaders they have elected.  

    Notice to the lawless Defendants at-large?

    Okay, so let’s assume it’s legit for Biden’s DOJ to sue 29 million suspected constitutional rights violators, how are they even going to be given notice of their presumed delinquency arising from the enactment of SB 8 by the GOPPERS in the Lege and Guv mansion? How will they be informed that they are on the receiving end of a federal enforcement action, and how are they to be given a chance to weigh in on the matter of their culpability? What if they want to say: Hey, I didn’t even vote for Republicans in 2020. Hey, I didn’t even vote at all. I was under 18.

    No problem, apparently. They just won’t do it.

    Nor do they even identify the Texas Attorney General as agent for service of summons  on behalf of the people of Texas (the majority of whom obviously have not designated him as their agent). Or ask the federal court to appoint a lawyer to represent the class of 29 million absent defendants who are alleged to pose a clear and present danger that must be judicially dealt with immediately.

    Sure, Paxton and his entourage of litigators will pop up at some point and defend his fellow GOPPERS and their deeds, but what about the millions of Texans that don’t want him to be their lawyers? What about their right not to be dragged into court in the first place?

    What about the right to Texans who didn’t vote for Republicans in state government to be left alone?

    The sad truth is that you and your 29 million fellow Texans are just sheep to be corralled. Due process is for others: Abortion docs and their staff get that. Even SB 8 recognizes that, along with excluding pregnant women from civil liability.

    You just got sued for nothing and there you are. Did you seriously consider becoming a bounty hunter? Well, it doesn’t matter. You could. So therefore you pose a threat, and your duty-bound and abortion-rights-minded Justice Department is coming to restrain you.

    THE MASSES OF BOUNTY-HUNTING OUTLAWS DOWN SOUTH

    Some among the 29 million Texans — say 11% — may be comfortable calling themselves persons of color,  others — like this Kibitzer — colorful characters, but few will even be aware that they have become — voilà  – agents of an evil GOP-controlled State of Texas acting “under color of state law” overnight, and now find themselves in the dock.

    Wow! Unprecedented indeed. 

    Pretty crazy, much rather.

  2. Jason Hochman says:

    Yes, pretty crazy. I am however, against heartbeat bills. I would say that abortion should be illegal, period. As the commandment sayeth, thou shalt not kill.

    Also, if you are a father, or husband, you have no rights, no say so in the killing of your child, yet, you have responsibility, and subject to wage garnishment for the next 20 years, like it or not. I would suggest that most of the progressives really don’t know much about women. I have learned first hand that women are interested in sex and desire it, especially with novel partners. It’s not like men bear sole responsibility for a pregnancy.

    It is also crazy that doctors are unwilling to treat the unvaccinated for Covid because it is “preventable” but are all onboard with aborting preventable pregnancies. It is also crazy that nobody mentions that abortion does have risks.

    Although I would advocate for outlawing abortion, I can’t in good conscience endorse the position, because as we know, women will still seek out abortions and perhaps be even more at risk from amateur abortions, although most doctors are not very smart and medical error is in the top five causes of death every year, so just because you go to a “real” doctor doesn’t necessarily count for much.

  3. Ross says:

    Jason, you are some kind of special, aren’t you? Are you actually saying that a woman with an ectopic pregnancy shouldn’t be able to get an abortion? How about a woman with a tubal pregnancy? A woman with nonresolving pre-eclampsia? A woman suffering from severe bleeding? A woman with a fetus that has defects that will cause a stillbirth or complicated delivery?

    Should women be able to be sterilized? Without their husband’s approval?

    Do you favor prosecution and punishment, including life without parole , for women who get an abortion?

  4. Política comparada says:

    ABSTRACT JUDICIAL REVIEW COMING TO AMERICA ?

    From a comparative politics/law perspective, the United States vs. State of Texas lawsuit is pretty interesting.

    On first blush, it is a very plausible claim for the central government in a federation to assert the superiority of its law relative to the law of the constituent units, and that kind of intergovernmental dispute would suitable to be litigated in the first instance in the federal constitutional council or the federal constitutional court. The ruling would presumably turn on whether the subject of the dispute falls within the scope of federal competencies, or what part of it, such as whether the regulation of medical prefessions and procedures, and surgical abortions in particular, belongs to the federation or the states. Ditto for public funding. Ditto for issues of parental consent in the case of minors.

    But the US constitutional design doesn’t have such an institution.  

    It seems like Mr Biden wants to introduce abstract judicial review in an ad hoc fashion, without a constitutional amendment that would add a constitutional review commission or court to the federal structure or re-engineer the existing United States Supreme Court.

    Given the setup and normal operation of the US judiciary, however, he is filing a complaint in a federal trial-level court, rather than the Supreme Court. And he is seeking a categorical invalidation of SB 8, not a particular application in a particular case where someone is complaining of having their rights denied, and is seeking customized relief for their circumstances. Why didn’t he file an intervention in the Supreme Court when the emergency application for injunctive relief was presented in Whole Woman’s Health v. Jackson? Why not a motion for reconsideration? It may have been unprecedented, but surely less drastic than what is happening here with this lawsuit against Texas.

    The complaint appears to be a facial challenge to the Texas Heartbeat Act in its entirety, which would normally require a showing that the law at issue is unconstitutional in all its possible applications, of which many are here contemplated (both in terms of fact scenarios and types/categories of aiding-and-abetting defendants). Not to mention the express provisions for severabilty in the event of partial constitutional infirmity as determinated in subsequent litigation.

    EXIGENT CIRCUMSTANCES FOR AD-HOC CONSTITUTIONAL REFORM ?

    There is no national emergency, like a war, and the current pandemic has little relevance to the abortion issue, except perhaps for elevated standards for infection control at facilities where abortions are performed. But the issue here concerns lawsuits related to abortion, which are sought to be prevented by a blanket state-wide federal-court injunction. Those state-court lawsuits are unaffected by COVID if they can be litigated through electronic document transfer and video conferencing

    In sum, there are no readily apparent exigent circumstances that would seem to justify going outside the current constitutional framework to accomplish some vital objective that couldn’t be accomplished otherwise, like assuring survival of the nation in light of impending enemy attack.

    CASE-BASED ADJUDICATION – HOW HERE ?

    Unless the US Supreme Court invents some new mechanism to get around the circumscribed jurisdiction of federal courts, it’s not clear how there is even a concrete case/controversy in the absence of an affected plaintiff, or standing? Plenty of controversy to be sure – generally speaking — but where is the actual legal case? The named parties so far: USA and the State of Texas. Both are entities not people. Neither could possibly be pregnant. 

    There may be limited standing to challenge SB 8 on the part of a federal agency based on trouble created by SB8 affecting the operations of federal government agencies and their grantees (like the refugee resettlement agency or Jobs Corps), but that could presumably be addressed under existing rules for federal-state conflict-resolution, such as federal jurisdiction over federal functions / services / facilities and limited preemption, and these legal issues could be raised when suits under SB8 (if any) are brought against federal governmental defendants.

    Nor would federal government defendants have a problem with access to legal advice and services, or face ruinous financial liability for that matter. Not to mention tools such as sovereign immunity and other defenses to swat down lawsuits by private actors seeking money damages. They could simply wait to be sued and then do what needs to be done in response. 

    Here, however, the Justice Department asserts “intergovernmental” immunity and federal preemption offensively, rather than as a defense in a lawsuit based on SB 8 in which a federal government agency or one of its officers or employees is designated as a defendant:  

    We sue you because we have intergovernmental preemption immunity. – Huh?

    CONCLUSION

    Abstract judicial review to test the constitutional conformity of newly-enacted legislation is practiced in other democracies and is an idea worth discussing in the USA.

    But this lawsuit seems like a strange way to go here. 

    From an academic perspective, of course, the effort by the Justice Department lawyers might be credited for being quite original and creative. 

  5. Kibitzer Curiae says:

    JUST IN: AN ABSURDITY FINDING

    Well, well, the Fifth Circuit is not interested in abstract judicial review, that much is clear.

    See https://www.ca5.uscourts.gov/opinions/pub/21/21-50792-CV0.pdf

    All procedural issues at this juncture decided against the Plaintiffs, and most importantly: You can’t sue state judges (much less their court clerks) to control the performance of adjudicatory duties under Section 1983. No Ex parte Young exception available to go after them.

    Motion Panel Opinion: Whole Woman’s Health v. Jackson, No. 21-50792 (5th Cir. Sep. 10, 2021) (published) (“It is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.”).

    INSTA-COMMENT:

    So there goes the class action strategy, at least as to Texas state judges as enforcers of SB 8. The bid by the abortion providers to corral and shackle the state judiciary as a whole would now seemed doomed along with any complaint about any individual one of them.

    That leaves to be rounded up and dragged into federal court the following:

    (1) Texas attorneys (N=120,000 or so), any one of whom might file an SB 9 civil enforcement suit, a proposition no one apparently has yet raised except Kibitzer Curiae (see above), and

    (2) the 29+ million Texans-at-large that Biden wants to enjoin pronto-pronto with a statewide injunction order without even given them notice or certifying them as a defendant class.

    Now that USDC Judge Pitman has been slapped down by the higher-ups, we’ll see whether he will assume the mantle of parens patriae and next issue an injunction against 29 million Texans, which will no doubt suffer a similar fate as the class action against the college of Texas jurists.

    Note, however, that it had not yet even come to an injunction in the Whole Woman v. Judge Jackson. The appeal was and remains limited to the immunity and other jurisdictional arguments under the “collateral orders” basis for an immediate interlocutory appeal in the federal system. The interim ruling was prompted by various pending procedural motions and requests for emergency relief, including the one in the SCOTUS.

  6. […] here for the background, and here for a copy of the motion. For those of you who’d like to get the […]

  7. […] else who felt threatened by SB8, but maybe that is already happening. Obviously, we want to get a sweeping federal injunction against this travesty, which would cover all of the contingencies, but who knows how long that […]

  8. […] the Fifth Circuit stopped before it could get a hearing and which SCOTUS punted on – and the lawsuit filed by the Justice Department that names the state of Texas as defendant. The first as noted is limited in scope while the other […]