Justice Department Sues Texas Over New Abortion Ban

Sep 9, 2021
Originally published on September 9, 2021 8:21 pm

Updated September 9, 2021 at 6:25 PM ET

The Department of Justice has sued the state of Texas over a new law that bans abortions after about six weeks, before most people realize they are pregnant, all but halting the procedure in the country's second-largest state.

The lawsuit says the state enacted the law "in open defiance of the Constitution."

"The act is clearly unconstitutional under long-standing Supreme Court precedent," Attorney General Merrick Garland said during a news conference Thursday afternoon. "Those precedents hold, in the words of Planned Parenthood v. Casey, that 'regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.' "

The Justice Department is seeking a permanent injunction from a federal court in the Western District of Texas. But it's likely the U.S. Supreme Court will have the final word on the matter.

Garland noted the law deputizes private citizens "to serve as bounty hunters authorized to recover at least $10,000 per claim from individuals who facilitate a woman's exercise of her constitutional rights."

He pointed out the law has thus far had its intended effect.

"Because this statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services," he said. "This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it."

Experts said the Texas law is among the most strict in the nation, in part because it allows private citizens to sue anyone perceived to be helping patients obtain abortions and doesn't make exceptions for cases involving rape or incest. Several other GOP-led states have announced they are considering adopting similar measures.

The Justice Department case may be designed to slow some of that momentum. The attorney general said if the federal government and the courts didn't block the Texas law, other states could easily put other constitutional rights in jeopardy.

Texas Attorney General Ken Paxton tweeted that the administration "should focus on fixing the border crisis, Afghanistan, the economy and countless other disasters instead of meddling in state's sovereign rights."

The state's Republican governor, Greg Abbott, said he was confident Texas would prevail in court, according to a written statement.

The lawsuit follows heavy pressure from congressional Democrats, who have urged Garland to use the "full force" of the Justice Department.

"We urge you to take legal action up to and including the criminal prosecution of would-be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law," wrote House Judiciary Chair Jerrold Nadler, D-N.Y., and 22 other Democrats.

Last week, the Supreme Court allowed the Texas law to go into effect over dissent from Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor. President Biden called the court's majority opinion "an unprecedented assault on a woman's constitutional rights under Roe v. Wade, which has been the law of the land for almost 50 years."

At an event Thursday, Vice President Harris said the administration and the Congress should work to codify Roe.

"We are heartened to see the Biden administration stepping in to take action to vindicate Texans' rights," said Helene Krasnoff, vice president, public policy litigation and law, for Planned Parenthood Federation of America.

Read the full lawsuit below:

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The Department of Justice will challenge the new Texas abortion law in federal court. That law bans abortions six weeks after pregnancy, and that's before many women realize they're pregnant. Attorney General Merrick Garland announced the lawsuit in Washington this afternoon.


MERRICK GARLAND: The act is clearly unconstitutional under long-standing Supreme Court precedent.

DETROW: Joining us now is NPR justice correspondent Carrie Johnson, who was at that news conference.

Hey, Carrie.


DETROW: So tell us more about this lawsuit.

JOHNSON: The Justice Department filed this case in the Western District of Texas in Austin. And before the news conference, everyone in the press room and a lot of people around the country kept refreshing their internet browsers, waiting to read the lawsuit. At the news conference, justice officials said the Texas law clashes with decades of Supreme Court precedent on abortion. DOJ says this law deputizes random people in Texas to report doctors, drivers and others who may be helping women to get abortions after six weeks, and the law turns those citizens into a kind of bounty hunter because it allows them to sue and collect $10,000. One more thing, Scott - there are no exceptions in this law for either rape or incest. Here's more from Attorney General Merrick Garland.


GARLAND: Because this statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services. This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it.

DETROW: Carrie, what exactly is the Justice Department asking for here?

JOHNSON: Basically, the federal government's saying the new law in Texas conflicts with federal law, and it wrongfully subjects federal workers at places like the Labor Department and the Pentagon to civil penalties for doing their jobs. They're asking the court for a judgment that the Texas law is invalid under the Constitution's Supremacy Clause and the equal protection language in the 14th Amendment. The DOJ wants a permanent injunction barring anyone in the state of Texas from enforcing this law.

DETROW: The Supreme Court, of course, let this law go into effect last week. Given that, what sort of challenges does the Justice Department face in convincing the judiciary to block this?

JOHNSON: Some big ones. Lawmakers in Texas specifically designed this law to make it hard for anyone to challenge it, and it is hard. Law professors who've been following these issues say they don't know how a judge could stop everyone in the state of Texas or everyone anywhere from enforcing it. And even if the Justice Department convinces a lower court judge to stop this law in its tracks, experts aren't sure what the Supreme Court will do. Still, there's been a sense of urgency within DOJ. Several other Republican-led states have talked about adopting their own versions of this law. DOJ wanted to try to stop that momentum. The attorney general said if the Texas law survives, there's a real risk other states could use this model to put other constitutional rights in jeopardy, too.

DETROW: A lot of Democrats have been clamoring for action from the Justice Department. The Biden administration, going in, said they were going to keep politics out of the Justice Department. So how did the attorney general respond to suggestions that the department had been pressured into acting?

JOHNSON: Yeah. This week, all 23 Democrats from the House Judiciary Committee urged Merrick Garland to use the full force of the Justice Department to block this Texas law. President Biden condemned the law. Vice President Harris has condemned the law. And here's Attorney General Merrick Garland - what he had to say about all of that pressure.


GARLAND: The Department of Justice does not file lawsuits based on pressure. We carefully evaluated the law and the facts, and this complaint expresses our view about the law and the facts.

JOHNSON: Now, Scott, of course, the Supreme Court is likely to get the final word on that if and when that - this case makes it back up there.

DETROW: Yeah. That's NPR justice correspondent Carrie Johnson.

Carrie, it's always good to talk to you.

JOHNSON: You, too. Thanks, Scott. Transcript provided by NPR, Copyright NPR.