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Justice Department sues Texas over near-total abortion ban

The law banning abortion at six weeks is the most restrictive in the country

The Biden Justice Department on Thursday filed a lawsuit challenging Texas’ near-total abortion ban as an “unconstitutional attack” on women that deprives them of abortion services “in open defiance” of U.S. Supreme Court precedent.

“The act is clearly unconstitutional under longstanding Supreme Court precedent,” Attorney General Merrick Garland said at a news conference announcing the lawsuit, filed in Austin federal court.

The Justice Department had been expected to mount a legal challenge to the six-week abortion ban after the Supreme Court allowed it to take effect Sept. 1, but Garland denied he was under any pressure to file a lawsuit by progressive groups or the White House.

“The Department of Justice does not filed lawsuits based on pressure. We carefully evaluated the law and the facts, and this complaint expresses our view of the law and the facts,” the attorney general said.

The Texas Heartbeat Act, passed by the Republican-controlled Texas Legislature as Senate Bill 8, is easily the most restrictive abortion law in the country. It prohibits abortions once a fetal heartbeat is detected, as early as six weeks, unless a medical emergency necessitates the procedure.

But the law’s conservative authors also carved out a unique, yet-to-be challenged provision that hands over enforcement power from state officials to private citizens to sue doctors, or anyone who “aids and abets” the procedure, with fines of at least $10,000 per violation.

There is no exception for cases of rape or incest. Texas Governor Greg Abbott said earlier this week that a rape exception was not necessary because the law provides “at least six weeks for a person to be able to get an abortion” and that the state would “work tirelessly” to “eliminate all rapists from the streets.”

Opponents of the law point out that because most women don’t yet know they’re pregnant at the six-week stage, the restrictions amount to a complete abortion ban.

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“Texas leads the nation in the number of rape incidents. Clearly Abbott hasn’t made preventing rape a priority,” Julian Castro, former Democratic presidential candidate and Housing and Urban Development secretary, said in a tweet.

But the Supreme Court, in a divided 5-4 ruling, allowed the Texas law to take effect last week after the conservative majority rejected an emergency appeal from abortion providers.

The high court’s refusal to block the law effectively banning abortions in Texas for the first time since the passage of Roe v. Wade in 1973 stunned abortion rights activists, drew condemnation from President Joe Biden and set up a legal showdown between state officials and the federal government over the state’s ability to ban the procedure.

Garland said in a statement on Monday that the Justice Department was “urgently” exploring all options to challenge Texas’ abortion restrictions and would continue to protect women seeking reproductive health services under the 1994 Freedom of Access to Clinic Entrances Act.

But the legal twist delegating enforcement power from the state to private individuals seemed to leave attorneys scrambling for a legal avenue to challenge the law.

The 27-page civil enforcement suit filed Thursday afternoon alleges that the Texas law violates the supremacy clause and the 14th Amendment and is preempted by federal law. The government seeks to invalidate the law and an immediate court order blocking its enforcement – by state officials and private parties.

“The United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” Garland said.

Nancy Northup, President and CEO of the Center for Reproductive Rights, said the lawsuit was “a gamechanger” in the group’s legal battle to restore abortion access to Texas women “and disarm vigilantes looking to collect their bounties.”

“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,” Northup said.

The Supreme Court is set to consider whether all pre-viability abortion bans are unconstitutional when it hears a Mississippi case involving a 15-week ban. Oral arguments have not been scheduled, but a decision is expected by the end of the court’s next term in June 2022.

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Since January, there have been a record 97 new laws limiting abortion enacted in 19 states.