We now have the Department of Justice’s answer to the Texas abortion ban, and it’s spare, straightforward and unusual.
Both Attorney General Merrick Garland and President Joe 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 v. 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 SB 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.”