Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.

The department argued in a court filing late Tuesday that Texas had adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights.”

The move comes less than a week after the Biden administration sued Texas to try to block the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and allows private citizens to take legal action against anyone who helps someone terminate their pregnancy.

In Tuesday’s emergency filing, the department argued that even though the Supreme Court has ruled that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Texas has banned abortions months before viability — at a time before many people even know they are pregnant.

The brief said Texas had devised “an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand.”

See here for the background, and here for a copy of the motion. For those of you who’d like to get the highlights, here you go:

By all accounts, the arguments being made by the Justice Department are strong. We’ll just have to see what the courts – specifically, the Fifth Circuit and SCOTUS – make of it. There was no indication as of the time of those tweets when the court would hear arguments or issue a ruling, but now there is:

After the United States Department of Justice filed a preliminary injunction/restraining order against Texas in another attempt to halt Senate Bill 8, a federal judge granted the Biden administration a hearing on Oct. 1 to review temporarily banning the anti-abortion law.

In the signed statement, Judge Robert Pitman stated that Texas shall file in response to the motion no later than Sept. 29, 2021 and the U.S. shall file its reply in response no later than the morning of the hearing.

Mark your calendars. You can see a copy of the judge’s order here, and as Steve Vladeck notes doing it this way rather than granting a temporary restraining order prevents the state from running to the Fifth Circuit and getting the TRO halted. The Trib, the Chron, and the Current have more.

UPDATE: 24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban. Good.

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2 Responses to Justice Department files its motion for an injunction against SB8

  1. Kibitzer says:


    Re: “the incredibly deleterious effects SB8”

    COMMENTt: This is an assemblage of anecdotal evidence concerning nonparties – i.e., persons not before the court – of the “tale-of-woe” genre more suited to the human-interest section of certain print media and daytime television shows.

    Clearly, this part of the motion is for public consumption — an appeal to the passions of the pro-abortion segment of the masses and their intellectuall vanguard — and is not the stuff of which abstract judicial review filings are (or should be) made of.

    Granted, the filing here seeks equitable relief, rather than a summary declaratory judgment as a matter of law, but there must still be an underlying cause of action and standing to assert it. As it stands, the pregnant-person narratives are just garnish to adorn the trial-ballooning of dubious legal theories reminiscent of Ken Paxton in State v. Hollins last year: We are the Sovereign and you are subservient. Ergo, we win. 

    In the plain vernacular: The sovereign is supreme and doesn’t need no stinkin’ cause of action. — Got it?


    If there actually were an abortion-minded plaintiff with standing before the court, the legal theory would be in the nature of an “as-applied” challenge. Biden, however, sees a categorical invalidation of SB 8 lock, stock and barrel; — one of the many problems of this unusual lawsuit.

    To be sure, they challenge the effects of SB8 as to federal operations on an “as applied” scenario basis (under federal turf-protection and preemption principles), but they still want to relief against all 29 million Texas allegedly deputized by the State of Texas (in an Act passed by Republicans that the majority of the 29 million didn’t vote for), and want the entire Heartbeat Act enjoined, rather than just particular parts of it.

    And while they are at it, they want to enjoin all Texas judges, something the Fifth Circuit just told them last week cannot be done.  

    Leaving aside his complaint about how SB8 allegedly interferes with activities of federal government agencies and agents, who – by the way – enjoy immunity, so good luck suing them on state-created cause of action … just where is the  basis for the United States to represent specific women with stories of inconvenience?

    And who doesn’t face inconvenience in their lives when engaging in – or wanting to engage in — a variety of constitutionally protected activity?

    For example, let’s say Prof. Lawful Outrage were to live near Rice Village and would want to exercise his constitutional right to denounce Texas Republicans for enacting SB 8 in front of the state Capitol with like-minded academic associates and future Lone Star lawyers, currently law students. He and his fellow travellers would face the inconvenience and costs of having to drive, greyhound, mega- or charter-bus to Austin to vindicate his and his fellow First Amendment practitioner’s core constitutional right to protest about official but odious government action on a matter of great public concern.

    Undue burden anyone?

    Why wouldn’t you assume that burden if the purpose of the trip justifies it, in your opinion? Because, you know, what’s at stake here is important to you.

    Not to mention the much larger distances Professor Outrage and his fellow adherents to the gospel of secular abortion rights would have to travel if they were borderline dweller, say citizens of El Paso. More gas money spent too, when on the road again for the good of womankind, if not men.  


    Additionally, if there is currently being experienced an “undue burden” having to cross the border to go to Oklahoma or Old or New Mexico, it would be a fact question to be litigated in individual cases. If you live in Dallas, for example, Oklahoma City isn’t very far, and small-town Gainesville would be even closer. So, the distance factor is going to vary widely among the relevant class of persons desireous of exercising particular still-existing constitutional rights, such as to travel interstate and to obtain an abortion – or to smoke peyote in a native religious ceremony — or sacrifice yourself some horse, lamb, or chicken — when it is legal in the neighboring jurisdiction.

    And the same goes analogously for taking a day off work if you are gainfully employed. But what if you are not? Then, no such burden. Those individual personal circumstances can’t be generalized, and don’t form a proper basis for policymaking, whether by legislature or court. The SCOTUS should rethink the “undue burden” mantra – which means nothing in the abstract — and likely will.


    On a grander scale – and we need to think grand since the USA is here suing to vindicate supreme national interests — where is the sovereign interest of the United States (currently, Joe Biden/Biden Administration) to *reduce* its population size (a problem already experienced by Japan and many other advanced democracies), rather than assuring the survival of the nation through man-woman sexual propagation, which is still the most efficient way of doing it?

    Surely, there is a valid national and state interest in favoring human reproduction and natural population replacement (i.e. facilitating births to replace Americans who die on an ongoing basis) over population contraction and concomitant over-aging of the population structure. Per U.S. constitution, future Americans come into existence by the fact of birth on the nation’s territory and a full course of pregnancy is a necessary condition therefore (leaving aside the preemmie scenario).

    So, if a national interest there be in domestic human reproduction, that interest tilts in favor of births, not abortions (unless, of course, eugenic objectives were to be considered legitimate for the President and his DOJ to selectively steer the population’s breeding behavior, or the breeding behavior of the populations of particular states, say GOP-controlled ones when the federal Administration is controlled by a Democrat, and DEM-controlled ones when a Republican is at the helm.

    And to the extent it is true that women classified as black undergo abortions at a higher rate and nonblack ones, it doesn’t even make sense for a Democrat to perpetuate the racially disproportionate culling of future generations. Not to mention putting the full force of the federal government behind the effort to reduce the nonwhite population share in time for the next census, and future ones. What with the Dems heavily relying on the coming minority-majority for their future electoral fortunes.  


    Let’s face it, the “constitutional right to an abortion” (which is really a negative right in the form of a protection against state proscription/regulation) is (1) an individual right, not a sovereign prerogative; and (2) has been judicially birthed by a U.S. Supreme Court whose composition and ideological leanings have since evolved in a more conservative direction. If the SCOTUS overrules Roe v. Wade, the constitutional right will be gone. — Poof.

    Much more could be said about the strained legal arguments in the latest filing in USA v. Texas, and much will no doubt be said in due course — an army of amici is no doubt already being assembled — but here is one that is particularly striking:


    In the Kibitzer’s initial assessment, this is one of the most remarkable offerings on the argumentative smorgasbord: The DOJ’s bid to entice Judge Pitman to exercise the powers of Congress under the Interstate Commerce Clause, and legislate from the federal bench accordingly.


    Not to mention that interstate commerce will actually be stimulated (rather than impeded) by all the cross-border abortion tourism ongoing and yet to come while we are all awaiting the results of the now-scheduled PI hearing, and by the surge in the revenue streams at the abortion facilities of economically inferior states such as Oklahoma. By the DOJ’s and state abortion providers’ own account, the abortion business must be booming in neighboring states, thanks to a more liberal regime than that of Texas under SB 8 since the September 1 effectiveness date.

    In contrast to the abortion revenues (no longer) realized within the borders of the state of Texas (and thereby reducing this state’s GDP), these additional travel-related expenditures and diverted expenditures for abortion-services rendered in other states are cleary interstate in character. The connection is not only threadbare, as with the importation of D&C instruments and supplies into Texas from elsewhere.  

    But should a federal district judge fashion regional economic development policy based on the Interstate Commerce Clause?

    To this Kibitzer, it seems as mind-boggling as the restraining order against 20+ million civilians under a parens patriae liability theory. But then again, why not shake up the gray matter a bit once in while? What’s wrong with lighting up a little storm in the brain? For some crackles and scintillas of the coming elucidation.

    On that parens patriae thing … note that the majority of Texans to be restrained by order of Judge Pitman are not children. Nor do they consider Ken Paxton as their Daddy. Even if he dons the “State of Texas” mantle when he gets up in the morning and heads to federal court to do battle with Obama’s VP. 

    It looks much rather that the dueling emperors lack clothes to cover their naked power gambits.

  2. policywonqueria says:


    “The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.”

    Ouch, quality journalists unfamilar with the term “enact”, “enacted” “enactment”.

    And it wasn’t even on a finer point such as engrossment. Perhaps we should be grossed out about the gross lack of familiarity with legislative and judicial process. On the other hand, we are all human and prone to ignorance and error, policywonks not excepted.

    The *Bill* in question (S.B. 8) was enacted months ago, signed by the Governor, also months ago, and has been in force since its September 1, 2021 effective date.

    While some plaintiffs are suing Republican legislators for what they have wrought in Travis County district courts, the “Texas Heartbeat Act” (official name) is already a done deal. It could be repealed by a future Legislature, but that won’t happen any time soon.

    The issue now on the legal landscape is civil enforcement (and validity).

    The reputable press reports that no S.B. 8 private enforcement suits have yet been filed. But a dozen or so state-court challlenges by pro-abortion plaintiffs against Texas Right to Life are in the pipeline. Wait for them to be consolidated and transferred out of the People’s Republic of Austin into a more mainstream GOP-friendly territory.

    As for the singular federal case by the US — the one brought for the benefit of abortion providers and proponents (unlike Whole Woman’s Health v. Jackson, which they brought themselves) — a temporary injunction hearing is standard procedure. So, the issuance of a scheduling order is routine.

    And if there were a true emergency, the DOJ would have asked for a TRO immediately when it filed its [original] Complaint, as they do in other cases.

    Given the novelty of the legal arguments, it made sense to first watch and gauge public, editorial, and law professor reaction before moving for injunctive relief. Whether the DOJ gets relief in the form of a TRO or PI won’t matter much. AG Paxton will appeal, and that appeal will go to the Fifth Circuit, a court with a track-record of abortion rulings and reasonings that won’t favor the abortion providers.

    Beth Klusmann, Assistant Solicitor General, entered her appearance for the State of Texas (Attorney General Ken Paxton) today.

    A non-paywalled version of the docket is here:
    Many of the filings (PDF) have been reposted and can be veiwed for free. If you have to get them from PACER, it will cost you.

    Also, the distinquished Prof. Stephen I. Vladeck is at UT Law, not UH, as might have been implied by Kibitzer’s hypothetical, and is affiliated with the Federalist Society.

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