The US Department of Justice (DOJ) on Thursday filed a lawsuit challenging a highly controversial Texas law, Senate Bill (SB8), which bans all abortions after six weeks and authorizes citizens to report individuals who assist or intend to assist people seeking to terminate their pregnancies.
The complaint asserts that the law defies the Supremacy Clause because it lacks an exception for cases of rape and incest. The DOJ said that this restriction could potentially interfere with the ability of federal workers to perform a duty to facilitate abortions in certain cases. The DOJ also said that the law regulates areas that are preempted by federal government authority because of the impact this ban will have on interstate commerce. Abortion clinics in nearby states are already seeing an increase in calls from out of state. One clinic in Oklahoma said “the numbers of calls it received from Texans increased from approximately three to five calls per day to between fifty and fifty-five.”
The DOJ also claims that SB8 violates the Fourteenth Amendment because it goes against a person’s right to seek an abortion before a fetus is able to survive outside of the mother’s womb, as established in Roe v. Wade and Planned Parenthood v. Casey.
Attorney General Merrick Garland noted that “the statute includes an unprecedented scheme to, in the Chief Justice’s words, ‘insulate the State from responsibility.'” The law empowers private citizens, as opposed to state officials, to enforce the law, which means that there are far fewer legal challenges that can be raised to assert the law’s unconstitutionality.
The US Supreme Court declined to order an injunction that would have halted the enactment of this law which subsequently went into effect on September 1. Justices Sotomayor, Kagan, Breyer and Chief Justice Roberts each wrote a dissent. Sotomayor and Roberts decried the unprecedented statutory structure outsourcing enforcement to deputized Texans.
Breyer emphasized that the petitioners had met the burden for a preliminary injunction because “the very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm. Kagan acknowledged that this decision is the most recent in a series of shadow docket cases—cases that are decided without hearing oral arguments, which she described as “unreasoned, inconsistent, and impossible to defend.”