Justice Department’s tough battle against Texas abortion ban

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By Tierney Sneed, CNN

In his trial Challenging Texas’ six-week abortion ban, the Justice Department is launching a Hail Mary pass to overcome procedural failures that have thwarted other attempts to block the ban in court.

The trial, filed Thursday in federal court in Austin, builds on a new strategy to try to end enforcement of the ban, which was designed specifically to escape federal court scrutiny.

The Justice Department’s substantive arguments – that the law violates the Supreme Court’s constitutional precedent on abortion rights – are well founded. But the question is whether his lawsuit can get around the same procedural issues that condemned the previous federal lawsuit brought by abortion clinics.

Here’s what you need to know about the trial:

The DOJ’s Big Demand: Prevent Texas “Agents, Including Private Parties” from Enforcing the Ban

Texas has so just foiled efforts to prevent the law, known as SB8, from coming into force because of the way lawmakers designed the mechanism to enforce the ban.

Instead of tasking government officials with enforcing the ban – via criminal or regulatory sanctions – the law charges private citizens to punish clinics, or anyone else who facilitates the procedure, for performing a legally prohibited abortion. law. They can do so by filing a private civil lawsuit in the state courts of Texas – litigation that includes the threat of damages of at least $ 10,000 and the possibility of a court order shutting down the clinic.

Texas has explicitly banned government officials from enforcing the law, denying abortion rights advocates the normal route they have taken in past abortion cases, where they have successfully obtained orders from the court blocking government officials charged with implementing restrictive law.

“The obvious – and expressly recognized – intention of this legal regime is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible,” Attorney General Merrick Garland said when announcing the trial Thursday. “So far, the law has had the desired effect.”

The Department of Justice is trying to get around this problem in a very bold way. He asks the court to prevent “private parties who would bring an action under SB 8” from applying the law, because the Justice Department defines these private parties as “agents” of the state.

This request is “the whole ball game,” said Steve Vladeck, a University of Texas law school professor and CNN Supreme Court analyst.

In doing so, the Department of Justice is trying to take advantage of its ability to sue the state as a whole.

When it is the US government suing a state, the state cannot assert a defense of “sovereign immunity,” which Texas can exercise against private entities that attempt to sue a state directly for restrictive law. rather than against specific individuals. In the court challenge to the ban that abortion clinics appealed this summer, the Judgment of the Court of Appeal of 2001 that state defendants have cited to argue that they cannot be sued says nothing about situations in which the US government takes legal action.

But that doesn’t make the next step in the DOJ’s arguments – that all private citizens should be treated as agents of the state for the purpose of blocking the law – any less of an impact.

“It would be unprecedented for an injunction of this magnitude,” said Roger Severino, who was a senior civil rights advocate at the Department of Health and Human Services under the Trump administration.

“I had never heard of an injunction that would apply to every citizen of a state, let alone one of the most important in the country. But that’s exactly what they asked for, ”added Severino, who is now a senior member of the conservative Ethics and Public Policy Center think tank.

Why the U.S. government says it has grounds to sue

The DOJ’s injunction request is its Hail Mary request, but it’s not the only aspect of the lawsuit that puts the Biden administration on procedurally shaky ground.

Before a court even considers what to do about the law, it will have to conclude that the United States risks incurring the types of harm resulting from the ban – a threshold known as “Representation” – which makes it appropriate for a court to intervene in the dispute.

The department makes two distinct arguments. One is that the Texas ban is detrimental to federal personnel whose duties include ensuring access to abortion for those under federal care, as Texas law exposes such personnel to a private litigation to apply SB8 if it helps a woman get an abortion after six weeks. .

In this vein, the Department of Justice also argues that the government will incur costs for having to transport its caregivers out of state to Texas so that they can get the proceedings.

“The question is, does it hurt the United States as much as the United States rather than the patients?” Said David Cohen, professor at the Drexel Kline School of Law and co-author of the book “Obstacle Course: The Everyday Struggle to Get an Abortion in America”.

Among other reported issues, the lawsuit alleges that Texas law could interfere with the ability to perform at Texas Department of Defense facilities in the event the mother’s life is in danger or the pregnancy is the result of ‘rape or incest.

What is the parens patriae? And why it matters

The department makes another major argument: that the US government has the right to take legal action against Texas for how the ban “grossly violates the constitutional rights of the general public.”

This standing argument is based on a legal concept known as parens patriae, said Vladeck, who argues that the government is a representative of its citizens and that it can take legal action to assert the rights of those citizens.

It is a “well-trodden” legal concept, Vladeck said, but it is on “ground that has not been trampled on for a while”.

The prosecutions repeatedly refer to the “plan” to “evade” the Constitution and “avoid” accountability. The department says Texas “has made unprecedented efforts to cover up its attack on constitutionally protected rights.”

This is part of why the United States says it has grounds to sue, to defend the rights of women and clinics that have been excluded from the normal court process, due to the clever design of the ban.

What are the next steps?

First, a district court judge will review the case. Currently, it is attributed to U.S. District Judge Robert Pitman, the same judge who also presided over the clinics’ challenges against the Texas law and who expressed sympathy for their arguments, before the 5th US Court of Appeals- United does not suspend its proceedings. .

But no matter what Pittman does, the waters only get rougher for the Justice Department after the case is taken to the 5th Circuit and then the U.S. Supreme Court.

“The 5th Circuit and the Supreme Court are not good for abortion rights, so obviously they could have very narrow procedural interpretations,” Cohen said.

As Jessie Hill, professor and associate at Case Western University School of Law, pointed out in an email to CNN, “the ultimate arbiter of this lawsuit will be the same Supreme Court that declined to intervene” when the abortion clinics have requested her intervention.

The Supreme Court refused to give these “claimants the benefit of the doubt on difficult procedural issues. [the case] high, ”she said. “The Court may be more willing to show deference to the DOJ, but I think it will always be an uphill battle.”

The potential of a symbolic, but not practical, victory for the DOJ

In his speech on Thursday, Garland repeatedly asserted that other states could take Texas’ approach to bypass federal overhaul of laws that undermine not only abortion rights, but other rights protected by the Constitution and judicial precedents.

Once in court, Justice Department attorneys could make this argument even more specific: If conservative judges don’t care how the tactic violated abortion rights, will they fear that blue states pass similar laws to prosecute gun law?

“This kind of ploy to overturn the Constitution of the United States is a project that all Americans – regardless of their politics or party – should fear. If it wins, it can become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents, ”Garland said.

“Nor is it necessary to think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that allow any individual to infringe the rights of others protected by the Constitution in that way, ”he added.

Yet if the ministry cannot obtain the blanket order that it seeks to block the SB8 enforcement mechanism, there is still a possibility that the case will end with a ruling declaring the law unconstitutional. This may not be enough for clinics to start offering abortions again after six weeks. If private citizens at large have not been specifically prevented by a court order from enforcing the ban with private litigation, then abortion providers should still defend themselves against these state lawsuits. And even if providers end up winning these cases, SB8 is making this legal battle so resource-intensive that many clinics still might not want to reopen their doors.

But a declaratory judgment declaring the law unconstitutional would still be a symbolic victory for the Biden administration and send a signal to other states considering emulating Texas’ approach.

A Supreme Court ruling that declared Texas law unconstitutional, but did not explicitly prevent every citizen from trying to apply it, would also give the court an opportunity to deal with the case in a way that did not explicitly knock down Roe v Wade. In practice, it might not make a difference for Texan clinics who still could not resume the procedure and for Texan women who, thus, still could not get it.

CNN’s Ariane de Vogue and Joan Biskupic contributed to this report.

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