Good luck with another lawsuit from the outside in. The Wall Street Journal reports that the Department of Justice will file a lawsuit against the new fetal-heartbeat abortion “ban” in Texas as soon as today, part of Joe Biden’s all-hands-on-deck attack on the issue. The Biden administration had little choice politically but to try a kitchen-sink approach in order to mollify the abortion-on-demand progressives, but it’s not at all clear what would make this any different than the challenge already set aside by the Supreme Court:
The Biden administration is preparing to sue Texas over its new law banning most abortions, people familiar with the matter said, an action that would set off a federal-state clash at a time when the future of abortion rights becomes an ever-more-pressing question before the courts.
The Justice Department could file a lawsuit as soon as Thursday, the people said, adding that the timing could be pushed back. The Biden administration has faced pressure from Democrats and abortion-rights groups to take action to stop the Texas restrictions after the Supreme Court last week allowed them to take effect.
Attorney General Merrick Garland said Monday the Justice Department was urgently exploring all of its options, which legal experts said could include attempting to strip federal funding and trying to determine whether there are federal facilities within the state that could provide abortions. Those experts warned, however, that novel provisions in the law, which prohibits most abortions after about six weeks of pregnancy, could make it harder for the federal government to prevail in a lawsuit.
On what basis does the federal government have standing to sue? That’s, um … TBD:
The Justice Department is expected to pursue an argument that the Texas law illegally interferes with federal interests, one of the people said. The precise nature of those arguments couldn’t immediately be learned.
A couple of days ago, the WSJ reported that the DoJ might argue that the law violates a 1994 statute ensuring physical access to abortion clinics. That is apparently at least one of the “federal interests” under consideration:
The Justice Department will “continue to protect those seeking to obtain or provide reproductive health services” under a separate federal law that makes it a crime to injure or intimidate abortion-clinic patients and employees, Mr. Garland said. It also prohibits damaging property at such facilities and other reproductive-health centers.
Officials have reached out to federal prosecutors and Federal Bureau of Investigation field offices across Texas to discuss how to enforce the federal law, known as the 1994 Freedom of Access to Clinic Entrances Act, he said.
That argument has one fatal defect, which is that the Texas law doesn’t do anything to restrict physical access to clinics. In fact, it doesn’t allow the state to enforce the ban at all. Instead, it grants universal standing to Texas residents to sue abortion providers for each and every abortion they perform, with penalties starting at $10,000 per abortion from every person who conducted or facilitated the abortion. That has created potential liabilities so massive that abortionists have stopped operating, even though potential clients can still physically access their clinics.
Apparently the DoJ is also looking into the possibility of opening federal clinics to provide abortions, but that has two big problems. One: the Hyde Amendment is still in force for this budget year, which means that the Biden administration is explicitly prohibited from using federal funds for abortions. The second is that such a move will make Joe Biden into the CEO of a Federal Abortion Clinic chain, which is a rather strange outcome for the nation’s second Catholic president. (Or so Biden claims, anyway.)
It seems odd that the DoJ would try a frontal challenge to the law when that didn’t work the first time around. The previous Supreme Court ruling that declined to issue a temporary injunction against the law relied essentially on ripeness and standing, and the DoJ would be put into even more precarious position in both areas with a frontal challenge at this stage.
However, it would make a lot more sense for the DoJ to involve itself in the Travis County case in which a state court did impose an injunction, thanks to an attempted exercise of the law in a suit:
Abortion providers in Texas are seeing some success in state-court lawsuits brought to derail a law giving private citizens a right to sue for alleged violations of its ban on abortions after about six weeks.
Three Planned Parenthood affiliates in Texas won a temporary restraining order blocking Texas Right to Life, its legislative director John Seago, and several unnamed defendants from suing them to enforce S.B. 8’s ban on abortions after fetal cardiac activity is detected.
This state-court suit and others like it may be the “best” option at this point to get to a decision on the law’s validity fairly quickly, Rachel Rebouché told Bloomberg Law. Rebouché is interim dean at Temple University School of Law and an expert on abortion and reproductive health law. …
Rebouché acknowledged that the order is limited in nature, and that it will take time for the case to wind its way through the state courts. But the state-court case may get to the issue of S.B. 8’s validity under the state constitution faster than a federal court would decide if the law meets federal constitutional standards, she said.
That might not be as different as Rebouché argues. The TRO requested in the case heard by the Supreme Court was pre-emptive. An actual lawsuit brought against its clinics would make the issue ripe, and that might be enough for the current Supreme Court to enjoin any action under the law while the complicated and vastly broad redefinition of standing in the Texas law gets a closer look. The DoJ could take action to either parallel the lawsuit in federal court or have it moved there wholly to test that issue. That’s a lot smarter than trying the same thing again or opening up Biden’s Abortion-o-Rama in Texas.
Anyway, the legal fight will remain interesting for some time to come, but in the meantime babies aren’t getting aborted in Texas. Those are human lives worth saving, even if the pause is likely unsustainable through these means in the current context of precedent. The case from Mississippi still offers the best hope of changing that precedent and returning this issue to representative democratic governments, at both the federal and state levels.
Update: Garland just announced the filing of the lawsuit, which asks a federal court to declare the law invalid:
The Justice Department is suing Texas over a new state law that bans most abortions, arguing that it was enacted “in open defiance of the Constitution.”
The lawsuit, filed Thursday in federal court in Texas, asks a federal judge to declare that the law is invalid, “to enjoin its enforcement, and to protect the rights that Texas has violated.”
That’s precisely what Planned Parenthood tried, and that ended up losing — at least on the demand for an injunction. Bear in mind that the Supreme Court took care to say that its ruling on the demand for the TRO did not indicate any decision on the law’s constitutionality, but suggested that it wasn’t ripe for any emergency adjudication. Will this get treated any differently? Perhaps, but I wouldn’t bet on it, especially since the DoJ can’t possibly be an aggrieved party in this case and the law still doesn’t have a state-based enforcement action to enjoin.