WASHINGTON — The Justice Department is lodging a constitutional challenge to Texas’s 6-week abortion ban, which has halted nearly all abortions in the state and deputizes private citizens to sue anyone they suspect of performing the procedure.
The Justice Department filed the lawsuit in federal district court in Austin on Thursday afternoon, just over a week after the law, SB 8, took effect. Attorney General Merrick Garland announced the suit shortly after it was filed, saying that the federal government had the “authority and responsibility” to ensure states cannot deprive citizens of their constitutional rights, particularly through a “legislative scheme” designed to avoid any review by the courts.
“The act is clearly unconstitutional,” Garland said.
The Justice Department is also making the case that the federal government has an interest in challenging SB 8 because it conflicts with federal agencies, employees, and government partners whose work involves aiding abortion access in the state. For instance, according to the suit, the law would require the government to end contracts that involve federal funding for insurance coverage or reimbursement for abortion services. It’s asking a judge to declare SB 8 unconstitutional and to enter an injunction that blocks Texas and any of its “agents” — including the private citizens now authorized to file lawsuits to enforce the law — from taking action.
Earlier in the week, Garland released a statement that the Justice Department was “urgently” exploring options to put the weight of the federal government behind efforts to strike down SB 8 or at least rein it in. He specifically cited the Freedom of Access to Clinic Entrances Act, known as the FACE Act, a 1994 law that prohibits using or threatening to use force to interfere with a person’s access to reproductive health services.
“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” Garland said at the time, noting that the department was in contact with federal prosecutors and law enforcement officials in Texas.
SB 8 bans nearly all abortions after fetal cardiac activity can be detected, usually around the 6th week of a pregnancy. Pregnancy terms are counted from the first day of a person’s most recent period, so week 6 is typically two weeks after a missed period, which is when many people realize they’re pregnant. Early-term state abortion bans are often referred to as “heartbeat” laws, but the term is misleading, since a fetus’s heart valves haven’t formed yet; an ultrasound at that stage is detecting electrical activity.
Rather than put government officials in charge of enforcing the ban, Texas authorized private individuals — and gave them a financial incentive — to file civil claims not only against anyone they believe performed an abortion but also anyone who they suspect helped a pregnant person obtain the procedure. It’s an unusual enforcement structure that was intended to make it harder for abortion rights advocates to contest the law in court before it took effect or before anyone tried to bring a case under the law.
The law doesn’t allow lawsuits against a person who receives an abortion, but it does place anyone who helps them in legal jeopardy. Abortion providers across the state immediately announced that they would comply with the law and cease performing the procedure after six weeks; roughly 85% to 90% of abortions take place after the 6-week mark, according to information filed in court by providers who are suing over the law.
In the new complaint, the Justice Department described SB 8 as a “transparent effort to evade constitutional scrutiny.” It’s arguing that the law turns private citizens into “state actors” by giving them authority that would normally be left to law enforcement or other government officials.
To make the argument that the federal government has a legal right to sue over the law, the Justice Department offered examples of federal functions within Texas that it said the law would conflict with. Those include a federally funded job corps program, where contractors are required to provide reproductive healthcare and abortion services to participants as part of their medical benefits; the federal government’s care of unaccompanied immigrant children who ask for abortion-related services; people held at federal prison facilities who request abortion access; Medicaid coverage; and medical care, including abortions in limited circumstances, provided at Department of Defense facilities in the state.
SB 8 has been in effect since Sept. 1 after a majority of justices of the US Supreme Court declined to act on an emergency petition filed by Texas abortion providers. A federal appeals court had stopped a judge in Austin from even considering whether to temporarily block the law from taking effect while the providers pursued a constitutional challenge. The Supreme Court did not act on the petition by midnight on Sept. 1, allowing the law to become operative.
Twenty-four hours later, the court released a 5–4 order confirming the decision to let the law go forward for now. The unsigned midnight order stated that the majority wasn’t convinced the abortion providers could win against threshold procedural challenges to their lawsuit — chiefly, whether a court had jurisdiction to hear the case now, before anyone tried to bring a civil claim against a provider, and whether the providers had sued the right parties.
Chief Justice John Roberts Jr. and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. Roberts split with the rest of the court’s conservative majority on the grounds that the case was too new and the record too light for the court to so dramatically upend the status quo. Roberts didn’t offer an opinion on the merits of whether SB 8 is constitutional, but the other dissenting justices did, slamming their colleagues for letting a law take effect that flew in the face of decades of precedent protecting the right to an abortion.
The original constitutional challenge to SB 8 filed by abortion providers is pending. The Justice Department designated its case as “related” to that one, which would mean that it gets assigned to the same judge, US District Judge Robert Pitman. Pitman previously denied efforts by Texas and other parties named as defendants — including an anti-abortion activist who had vowed to bring claims under SB 8 — to get the abortion providers’ case tossed out, and was on track to hold a hearing on whether to block the law from taking effect before Sept. 1, when a federal appeals court halted all of the proceedings before him.
The Constitution gives states significant power to adopt laws without interference from the federal government, but there are cases where the Justice Department has stepped in to argue that a state law runs afoul of federal interest. In June, the Justice Department sued Georgia over a new set of voting restrictions, arguing that the state law, SB 202, was designed to violate the civil rights of Black voters.
When the Justice Department decides to intervene in state lawmaking tends to reflect the broader policy positions of any given administration. President Joe Biden has publicly opposed SB 8. In a Sept. 2 tweet, he wrote, “We will launch a whole-of-government effort to respond, looking at what steps we can take to ensure that Texans have access to safe and legal abortions.” During the Trump years, when restricting the flow of immigrants into the United States and fast-tracking deportations was a top priority, the Justice Department sued California over so-called sanctuary laws designed to protect undocumented immigrants.