U.S. Justice Department sues Texas over new abortion law that Attorney General Merrick Garland calls unconstitutional

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

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.”

Renae Eze, Gov. Greg Abbott's press secretary, condemned the lawsuit shortly after it was announced.

"Unfortunately, President [Joe] Biden and his Administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn. We are confident that the courts will uphold and protect that right to life,” Eze said in a statement.

John Seago, legislative director for anti-abortion organization Texas Right to Life, said his organization thinks the lawsuit lacks legal standing and should be thrown out.

“We think this is an audacious overstep from the Biden administration,” Seago said. “This is really an amazingly ambitious lawsuit ... This is clearly a violation of Texas' authorities' [ability] to write their own laws and create their own causes of action. Hopefully, the judge that receives this sees the unprecedented nature of what the Biden administration is asking for.”

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.

The federal lawsuit joins other legal efforts aimed at overturning the restrictions. Abortion providers originally challenged the new law in July, arguing it violates the precedent established by Roe v. Wade. But the 5th U.S. Circuit Court of Appeals put a hold on district court proceedings, leading the providers to seek emergency relief from the U.S. Supreme Court. Many onlookers waited late into the night Aug. 31, expecting an order from the high court before the law went into effect — but it didn’t come.

A day later, the high court declined to weigh in. In an order, a majority of the court acknowledged that the case raised serious constitutional issues but said that it wasn’t clear whether the government officials and anti-abortion activists named as defendants on the suit “can or will seek to enforce the Texas law,” bringing uncertainty as to whether they could be sued in an attempt to block it. In a 5-4 decision, the Court allowed the law to continue. Court proceedings in the lower courts remain in limbo until the 5th Circuit makes a decision regarding its stay.

"I'm hopeful that all of these (lawsuits) will move forward to restore access to abortion in Texas, but also in other states that will probably pass similar laws where access is already restricted," said Dr. Bhavik Kumar, medical director for Primary and Trans Care at Planned Parenthood Gulf Coast. “It's important for us to get relief in the courts."

The law also prohibits plaintiffs from being ordered to pay defendants’ legal fees if the case is dismissed, leaving little risk for people who want to bring lawsuits and potential high costs for clinics to defend themselves even in cases where they ultimately prevail. No lawsuits have been announced so far.

Texas Attorney General Ken Paxton was not immediately available for comment.

Bethany Irvine contributed to this report.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

Join us Sept. 20-25 at the 2021 Texas Tribune Festival. Tickets are on sale now for this multi-day celebration of big, bold ideas about politics, public policy and the day’s news, curated by The Texas Tribune’s award-winning journalists. Learn more.