U.S. Department of Justice Files Lawsuit to Prevent Enforcement of Texas "Fetal Heartbeat" Abortion Bill SB 8

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Mar 11, 2022:

Jan 21, 2022:

Jan 20, 2022:

Jan 17, 2022:

Dec 16, 2021:

Dec 9, 2021:

Texas District Judge David Peeples ruled that enforcement mechanisms in SB 8 deny due process and violate the Texas state constitution.

Peeples stated the following:

SB 8 grants to 21 million Texans the power to bring cases without any guidance, supervision, or screening. There is no guidance in the statute and no guidance from any public official. There is nothing to prevent a billionaire from Texas or another state, motivated by ideology, from setting up an enforcement system by locating a few willing Texans who live in favorable counties of venue to file suits in their home counties and enforce SB 8 across Texas.

Peeples did not issue an injunction to block enforcement of SB 8, but his ruling will become part of the ongoing legal battle between a group of abortion providers and Texas Right to Life.

Source:

Choi, Joseph. (December 9, 2021). "Judge rules that enforcement provisions of Texas abortion law violate state constitution". The Hill. Retrieved 2021-12-11

Mekelburg, Madlin. (December 9, 2021). "Texas judge rules some provisions of state's restrictive abortion law violate Texas Constitution". Austin American-Statesman. Retrieved 2021-12-11

Dec 2, 2021:

Today, SB 4 went into effect in the state of Texas. The new law makes it a felony to provide abortion-inducing medication after seven weeks of pregnancy.

The U.S. Food and Drug Administration has determined that a pregnant person can use abortion-inducing medications up to 70 days after the last menstrual cycle (about the first 10 weeks of pregnancy).

The new law also specifies that no one may provide abortion medication "by courier, delivery or mail service."

In Texas, abortion-inducing medication accounted for 53 percent of all terminated pregnancies in 2020, making it the most common method for that year.

Source:

Klibanoff, Eleanor. (December 2, 2021). "Texas now bans medical abortions after seven weeks of pregnancy". The Texas Tribune. Retrieved 2021-12-04

Nov 1, 2021:

Oct 23, 2021:

Oct 22, 2021:

The U.S. Supreme Court issued an order which keeps SB 8 intact. The Court also agreed to hear the case to block SB 8 recently filed by the U.S. Department of Justice (oral arguments to be heard on November 1).

The Court will consider the following question: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?"

It appears as though the Court will not make a decision on the constitutionality of SB 8 as part of this hearing. Instead, it will wait and address that issue in the the upcoming case regarding Mississippi's 15-week abortion law (arguments to be heard on December 1).

Source:

Kruzel, John. (October 22, 2021). "Supreme Court agrees to review Texas's 6-week abortion ban". The Hill. Retrieved 2021-10-23

Nawaz, Amna; Howe, Amy. (October 22, 2021). "The Supreme Court will hear the case against Texas' abortion law. Here's what to expect". PBS. Retrieved 2021-10-23

Oct 21, 2021:

In response to a U.S. Department of Justice (DOJ) request submitted to the U.S. Supreme Court three days ago, Texas Attorney General Ken Paxton filed a request to that same Court arguing that the DOJ lacks standing (can't show it is hurt by SB 8).

In the filing Paxton also suggested that the Court could consider the state's response as a challenge to the two cases that helped establish the right of a woman to have an abortion (Roe v. Wade and Planned Parenthood v. Casey).

Source:

Oxner, Reese. (October 21, 2021). "Texas urges U.S. Supreme Court to allow near-total abortion ban to stand as Biden administration lawsuit unfolds". The Texas Tribune. Retrieved 2021-10-21

Oct 18, 2021:

Oct 15, 2021:

Oct 14, 2021:

Oct 8, 2021:

The 5th Circuit Court of Appeals issued a stay on the temporary block/injunction issued just two days ago by U.S. District Court Judge Robert Pitman.

The request for the stay was submitted by Texas Attorney General Ken Paxton.

The stay temporarily reinstates SB 8.

Source:

Vakil, Caroline. (October 8, 2021). "Appeals court temporarily reinstates Texas abortion law". The Hill. Retrieved 2021-10-09

Oct 6, 2021:

In response to an emergency request from the U.S. Department of Justice, U.S. District Court Judge Robert Pitman issued a temporary block on enforcement of Texas SB 8.

In the Introduction section of his ruling, Pitman says the following:

A person's right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that. The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state's judicial system, judges, and court officials to interfere with the right to an abortion. Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process. It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.

Read Pitman's 113-page ruling here.

In a statement, U.S. Attorney General Merrick Garland said the following:

Today's ruling enjoining the Texas law is a victory for women in Texas and for the rule of law. It is the foremost responsibility of the Department of Justice to defend the Constitution. We will continue to protect constitutional rights against all who would seek to undermine them.

Source:

Oxner, Reese. (October 6, 2021). "Texas' near-total abortion ban is temporarily blocked by a federal judge, spurring the state to quickly appeal". The Texas Tribune. Retrieved 2021-10-07

Lucas, Ryan. (October 6, 2021). "A U.S. judge blocks enforcement of Texas' controversial new abortion law". NPR. Retrieved 2021-10-07

Pitman, Robert. (October 6, 2021). "UNITED STATES OF AMERICA v. THE STATE OF TEXAS". storage.courtlistener.com. Retrieved 2021-10-07

Garland, Merrick. (October 6, 2021). "Statement from Attorney General Merrick B. Garland Regarding Texas SB8". justice.gov. Retrieved 2021-10-07

Oct 1, 2021:

Sep 30, 2021:

Sep 23, 2021:

Sep 21, 2021:

Last week, Texas Governor Greg Abbott signed SB 4 into law.

SB 4 bans the use of abortion-inducing drugs in Texas at seven weeks into a pregnancy. The bill also allows people who "intentionally, knowingly, or recklessly" breach the law to be criminally charged.

The bill takes effect in December.

Source:

Schnell, Mychael. (September 21, 2021). "Texas governor signs more abortion restrictions into law". The Hill. Retrieved 2021-09-21

Sep 14, 2021:

Sep 13, 2021:

Sep 10, 2021:

Sep 9, 2021:

The U.S. Department of Justice filed a lawsuit to prevent the State of Texas from enforcing SB 8. The official DOJ statement reads as follows:

Complaint Alleges Senate Bill 8 Violates the Constitution by Effectively Banning Most Abortions

Attorney General Merrick B. Garland announced today that the Department of Justice has filed a lawsuit to prevent the State of Texas from enforcing Senate Bill 8 (SB8), which went into effect on Sept. 1 and effectively bans most abortions in the state. The complaint seeks a declaratory judgment that SB8 is invalid under the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity. The United States also seeks an order, preliminarily and permanently, enjoining the State of Texas, including its officers, employees and agents, including private parties who would bring suit under the law, from implementing or enforcing SB8.

"The Act is clearly unconstitutional under longstanding Supreme Court precedent," said Attorney General Garland. "The United States has the authority and 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."

According to the complaint, Texas enacted SB8 in open defiance of the Constitution by banning abortion at approximately six weeks in nearly all cases. The law violates individuals' rights to have an abortion procedure prior to viability, which is usually around 24 weeks. Additionally, the law contains no exceptions for pregnancies that result from rape, sexual abuse, incest or for pregnancies involving a fetal defect incompatible with life after birth.

The prohibitions in SB8 apply to anyone who performs or induces a prohibited abortion, anyone who "knowingly" "aids or abets" the performance or inducement of a prohibited abortion, and even anyone who "intends" to perform or aid a prohibited abortion. Additionally, instead of relying on the state's executive branch to enforce the law, as is the norm in Texas and elsewhere, the state has deputized ordinary citizens to serve as bounty hunters, statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman's exercise of her own constitutional rights. The complaint challenges that this unprecedented scheme is designed to evade judicial review.

Source:

U.S Department of Justice. (September 9, 2021). "Justice Department Sues Texas Over Senate Bill 8". justice.gov. Retrieved 2021-09-14

Sep 7, 2021:

At a press conference, when Texas Governor Greg Abbott was confronted with the statement that SB 8 might or would "force a rape or incest victim to carry a pregnancy to term" he said the following:

It doesn't require that at all. Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn't [require] that. That said, however, let's make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets. So, goal number one in the state of Texas, is to eliminate rape, so that no woman, no person will be a victim of rape.

Source:

(September 7, 2021). "Texas Governor makes humiliating misstep at press conference over abortion ban". Brian Tyler Cohen. Retrieved 2021-09-20

Levin, Bess. (September 7, 2021). "GREG ABBOTT CLAIMS TEXAS'S NO-EXCEPTIONS ABORTION LAW IS FINE BECAUSE HE'S GOING TO 'ELIMINATE' RAPE". Vanity Fair. Retrieved 2021-09-20

Falcon, Russell; Washington, Jala. (September 7, 2021). "Gov. Abbott: Abortion bill won't force rape victims to have babies, Texas will 'eliminate' rapists". NBC News/KXAN Austin. Retrieved 2021-09-20

According to a study published by the National Center for Biotechnology Information (a branch of the National Institutes of Health) in April of 2018, the age at which a woman is aware she is pregnant is 5.5 weeks.

In a May 9, 2019 CNN article entitled "Reasons a woman may not know she's pregnant at six weeks", Jennifer Villavicencio (an ob-gyn who lectures at University of Michigan Medicine and is also a fellow with the American College of Obstetricians and Gynecologists) noted multiple reason why a woman may not know she's pregnant at six weeks.

Commentary:

Progressive political commentator Brian Tyler Cohen posted a blistering response to Abbott's remarks. Watch a video of Abbott's remarks and listen to what Cohen has to say about them here.

It's really amazing, but not in a good way, to watch and listen to the Texas governor suddenly deflect from discussing the actual facts of SB 8 and launch into a righteous speech about how rape is a crime (Oh, really? Gee, I didn't know that. Thanks for letting me know!) and that the state of Texas is going to "aggressively" get "all rapists" off the streets and "eliminate rape" altogether, with his cohorts clapping in the background. But, as amazing and blatant as it is, it shouldn't surprise anyone, because Donald Trump "wrote the book" on how to deflect when confronted with something you can't explain or justify, and after four years of watching him in action, conservatives (like Abbott) are now fully indoctrinated in the art of deflection.

Abbott says Texas is going to "eliminate all rapists" and "eliminate" rape. That's quite a lofty goal, and while I can, for a brief moment, appreciate the spirit in which it was said, for a governor of any state to speak like this is beyond ludicrous. No, Texas is NOT going to eliminate all rapists and all rape. That's a lie, and a big one. This is nothing but absurd political hyperbole, on a grand scale.

Abbott said that SB 8 provides "at least" six weeks to get an abortion. That's not accurate, and it's misleading because the bill allows only, or at most, six weeks. This is nothing more than an attempt to make the bill seem less restrictive than it is. And, as the NIH study and the CNN article I noted earlier point out, most women don't even know they are pregnant until 5-6 weeks, not to mention all of the other things that realistically make it extremely difficult, if not impossible, for a woman to have an abortion by the 6-week mark.

SB 8 and Abbot's remarks are a pathetic and desperate attempt to impose Christian values and religious beliefs on all Texas women, regardless of their own personal values and religious beliefs. It's radical, it's wrong, and it flies in the face of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Sep 6, 2021:

U.S. Attorney General Merrick Garland issued the following statement regarding Texas SB 8:

Statement from Attorney General Merrick B. Garland Regarding Texas SB8
The U.S. Department of Justice today issued the following statement from Attorney General Merrick B. Garland regarding Texas SB8:

"While the Justice Department urgently explores all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion, we will continue to protect those seeking to obtain or provide reproductive health services pursuant to our criminal and civil enforcement of the FACE Act, 18 U.S.C. § 248.

"The FACE Act prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services. It also prohibits intentional property damage of a facility providing reproductive health services. The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now.

"The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack. We have reached out to U.S. Attorneys' Offices and FBI field offices in Texas and across the country to discuss our enforcement authorities.

"We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act."

If you have an incident, concern, or questions, please contact the FBI at FBI.gov/tips or through the complaint portal civilrights.justice.gov.

Source:

Garland, Merrick. (September 6, 2021). "Statement from Attorney General Merrick B. Garland Regarding Texas SB8". justice.gov. Retrieved 2021-09-14

Sep 4, 2021:

Sep 3, 2021:

A state judge in Texas issued a ruling that temporarily prevents Texas Right to Life and public citizens from suing abortion providers and workers at Planned Parenthood clinics.

Source:

Kruzel, John. (September 3, 2021). "Texas judge hands narrow win to abortion providers fighting new 6-week ban". The Hill. Retrieved 2021-10-03

Sep 2, 2021:

What does SB 8 do?

  • It allows "any person, other than an officer or employee of a state or local governmental entity [in Texas]" to sue anyone who "aids or abets the performance or inducement of an abortion" (or who intends to aid or abet) in the state of Texas after cardiac activity can be detected in the unborn fetus.
  • It specifically exempts the person who is getting an abortion from being sued.
  • It provides for a minimum statutory damage amount of $10,000, paid by the defendant, payable to the suing person as a sort of bounty. There's no upper limit on the amount for which a defendant can be sued.
  • It does not specifically allow a defendant to pursue reimbursement for attorney fees, court costs, or travel costs.

Usually, a fetal heartbeat is detectable about 6 weeks into a pregnancy. The bill is sometimes referred to as the "six-week abortion ban" because it effectively bans all abortions after six weeks.

SB 8 was constructed to make it impossible for anyone who objects to the law to sue any state official. Two things are important to note here. First, that states have "sovereign immunity" which typically prevents lawsuits against the state itself. Second, because with SB 8 neither the state nor any state official is designated as the enforcer of the law (enforcement is done strictly by private citizens), there is no state-affiliated entity to sue to block the law.

The law violates the ruling in Planned Parenthood v. Casey (1992), which states the following (bold text added for emphasis):

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

Source:

Holley, Peter; Solomon, Dan. (October 7, 2021). "Your Questions About Texass New Abortion Law, Answered". Texas Monthly. Retrieved 2021-10-12

Millhiser, Ian. (September 2, 2021). "Texas's radical anti-abortion law, explained". Vox. Retrieved 2021-10-12

"PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al., Petitioners, v. Robert P. CASEY, et al., etc. Robert P. CASEY, et al., etc., Petitioners, v. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA et al.". Cornell Law School. Retrieved 2021-10-12

Sep 1, 2021:

In the case of Whole Woman's Health v. Jackson, the U.S. Supreme Court denied the plaintiff's request for injunctive relief.

The plaintiff, Whole Woman's Health, is an organization that operates four abortion clinics in the state of Texas. That organization, along with other providers, filed a request for an injunction with the U.S. Supreme Court to stop enforcement of Texas SB 8.

The Court's decision was made via what is referred to as a shadow docket (without oral arguments, on an emergency basis, and with minimal time of deliberation).

The application for injunctive relief was presented to Supreme Court Justice Samuel Alito (who handles the Court's fifth circuit, which includes Texas). Alito is a one of the Court's conservative justices.

Here's some of what Alito said in his rather short decision:

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a "strong showing" that it is "likely to succeed on the merits," that it will be "irreparably injured absent a stay," that the balance of the equities favors it, and that a stay is consistent with the public interest...The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.

In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants' lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

Conservative justices Clarence Thomas, Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh gave no opinions.

Conservative justice John Roberts. along with liberal justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer (who all dissented with the Court's decision) wrote lengthy opinions.

Excerpts of Robert's opinion:

I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

Excerpts of Breyer's opinion:

Texas's law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a "State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy." Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted).

The very bringing into effect of Texas's law may well threaten the applicants with imminent and serious harm.

Excerpts of Sotomayor's opinion:

The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. The Act [SB 8] is clearly unconstitutional under existing precedents.

In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures. The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law...By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a
statewide basis.

Taken together, the Act is a breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas.

Excerpts of Kagan's opinion:

Without full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law banning most abortions. The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf. As of last night, and because of this Court's ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Source:

Howe, Amy. (September 2, 2021). "Supreme Court leaves Texas abortion ban in place". SCOTUSblog. Retrieved 2021-10-03

de Vougue, Ariane. (September 2, 2021). "Supreme Court denies request to stop Texas 6-week abortion ban, with John Roberts and liberals dissenting". CNN. Retrieved 2021-10-03

(September 1, 2021). "WHOLE WOMAN'S HEALTH ET AL. v. AUSTIN REEVE JACKSON, JUDGE, ET AL.". supremecourt.gov. Retrieved 2021-10-03

Millhiser, Ian. (September 2, 2021). "The staggering implications of the Supreme Court's Texas anti-abortion ruling". Vox. Retrieved 2021-10-03

Sneed, Tierney. (September 2, 2021). "How Texas' 6-week abortion ban will make accessing the procedure nearly impossible for some". CNN. Retrieved 2021-10-03

May 19, 2021:

View the entire bill here.

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