Attorney General Merrick Garland announced a lawsuit on Thursday against the state of Texas over its blatantly unconstitutional new ban on abortions after six weeks of pregnancy
Protesters against SB 8 at the Texas Capitol. Photo: Sergio Flores For The Washington Post via Getty Images) . In doing so, Garland and the Department of Justice illustrated what President Biden promised would be a “whole of government” reaction to the Supreme Court’s refusal to stop the law from being implemented. The suit is meant to expose Texas’s effort to execute a constitutional counterrevolution, and force the Court to deal with the effects of the law and its own actions.
As the complaint filed by DOJ shows, the Texas law in question, SB 8, violates a host of Supreme Court precedents establishing and reaffirming the right of women to obtain abortions without restrictions that would impose an “undue burden” on that right. A flat ban, without even exceptions for rape or incest, is pretty clearly an “undue burden.”
“The statute deputizes all private citizens, without any showing of personal connection or injury, to serve as bounty hunters authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights,” Garland said. “The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review.
What Garland did not do, though some had encouraged this route, was to rely on one of the statutes from the Reconstruction period to bring suit against the private individuals SB 8 empowered and encouraged to harass and intimidate abortion providers. That could be a fallback position if the DOJ suit is rejected, or if the situation changes via actual lawsuits against providers in Texas.
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