Column: Justice Department’s simple lawsuit could strike back effectively against Texas’ abortion ban

We now have the Department of Justice’s answer to the Texas abortion ban, and it’s spare, straightforward and unusual.

Both Atty. Gen. Merrick Garland and President Biden vowed to marshal every federal resource against the law, Texas Senate Bill 8, which is patently unconstitutional in preventing abortions that are plainly protected under Roe vs. Wade and its progeny.

The Justice Department opted to file a lawsuit directly against the state of Texas. Garland called it plainly: In enacting extreme constraints on the performance of abortions, and combining that with a bizarre and mean-spirited enforcement scheme, Texas’ goal “was to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review.”

It worked. “To date,” the department lawsuit continues, “abortion providers have ceased providing services prohibited by S.B.8, leaving women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this flagrant deprivation of rights, S.B.8 remains in effect.”

Various scholars had presented concrete strategies for fighting back against the Texas statute, premised on the point that it invested private persons with the power to enforce S.B. 8 by bringing civil lawsuits against abortion providers and abettors, including collecting $10,000 and attorneys’ fees. Many different federal laws make it illegal to deprive people of their constitutional rights acting “under color of state law.”

Laurence Tribe, emeritus professor of law at Harvard, suggested that anyone taking up the invitation to be an abortion bounty hunter could be subject to imprisonment or fines under federal criminal code Section 242. I posited that private persons could sue bounty hunters under the civil code, turning the tables on the bounty hunters by subjecting them to compensatory and punitive damages and attorneys’ fees. Others have cited actions related to the Freedom of Access to Clinic Entrances Act, or the FACE Act.

But in the end, after what was surely an intensive intra-department discussion involving Associate Atty. Gen. Vanita Gupta and acting Assistant Atty. Gen. Brian Boynton, these options may have seemed too narrow in their own ways and therefore ill-fitting.

Instead, the Justice Department has brought suit with a bare-bones complaint, under its general “authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution.” It also cites the federal government’s obligation to protect abortion in the case of rape and incest, which are not exceptions in the Texas statute.

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This simple approach is unusual but not unprecedented. A 2012 case against Arizona took a similar tack of asserting the Constitution’s preemption and supremacy clause to undo an Arizona scheme that tried to negate federal enforcement of U.S. immigration laws. (The district court entered an injunction and the case was eventually settled.)

Texas can be expected to jump up and down challenging the Justice Department strategy, asserting that the feds are trying to be all-purpose enforcers of U.S. law even in the absence of particular cases or controversies. But the department can parry that there is in fact a case and a controversy: Texas’ cheeky state-versus-federal-government effort to undo Roe vs. Wade, the law of the land, and prevent court review of its unconstitutional action.

The action Thursday signals that criminal charges aren’t in the offing against SB 8 abortion bounty hunters. That’s no surprise — an enforcement lawsuit brought on the basis of SB 8 would, after all, rely on a duly enacted Texas statute. That law may be an outlier, but it is still state law for now, and that alone could trigger reticence on the part of federal prosecutors as well as give rise to a persuasive defense against sending someone to jail for invoking it.

Civil lawsuits against wannabe SB 8 enforcers might still go forward, but the real issue at this point — and one that never should have been a problem in the first place — is freezing enforcement of the Texas statute altogether, by getting an injunction in district court based on the Justice Department lawsuit, and then allowing the law to be judged on its merits.

Indeed, if the Justice Department case reaches the Supreme Court, look for the court to do what it could and should have done two weeks ago: hold the case, while it considers Dobbs vs. Jackson Women’s Health Organization, the Mississippi 15-week abortion ban due for oral arguments sometime this fall. Once the justices determine in that case whether Roe remains good law, the SB 8 case can return to Texas federal court to apply that ruling.

It may be hard to accept all this maneuvering as a triumph for abortion rights already on the books, but in the dismal slough the Republicans in Texas have dragged us into — with women forced into unwanted pregnancies and clinics closing their doors — keeping SB 8 at bay while the battle over its merits is joined would be no mean achievement.

@HarryLitman