WASHINGTON — The Biden administration went to federal court Thursday hoping to block Texas’ ban on abortion as early as six weeks, blasting the state for deputizing legal “bounty hunters” to deter a procedure that remains legal, technically, under state law and Supreme Court precedent.
The ban on abortion as soon as a fetal heart beat can be detected — “months before a pregnancy is viable,” Attorney General Merrick Garland noted in announcing the challenge — clearly violates the constitutional rights of women in Texas, he said.
“Texas does not dispute that its statute violates Supreme Court precedent,” Garland added, but rather has crafted the measure “to thwart judicial review for as long as possible” by shifting enforcement from government to individuals.
“It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” according to the suit filed in Austin, in the U.S. District Court for the Western District of Texas. “But Texas has done just that.”
Gov. Greg Abbott is confident the law will be upheld in court, said spokeswoman Renae Eze.
“The most precious freedom is life itself,” she said. “Texas passed a law that ensures that the life of every child with a heartbeat will be spared from the ravages of abortion. Unfortunately, President Biden and his administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn.”
The new Texas law seeks to sidestep Roe vs. Wade, the Supreme Court ruling that has limited governmental restrictions on abortion since 1973, by deputizing enforcement to individuals and groups that oppose abortion.
Senate Bill 8 bars health care providers from performing an abortion once a fetal heartbeat is detected. And it offers a $10,000 bounty for lawsuits against providers or anyone who “aids or abets” and abortion, a private enforcement action that could even target an Uber driver who transports a woman to a clinic.
If courts allow the Texas law to survive, it will signify the end to the Roe era.
Roe has been teetering for years, a potential demise hastened during the Trump era, as the court shifted from a one-seat conservative majority to a 6-3 edge for the right.
Last week, a 5-4 court refused to halt enforcement of SB8 when it went into effect Sept. 1, sending chills through the ranks of abortion rights advocates as a sign the high court may have critical mass not just to erode Roe but to scrap it. Chief Justice John Roberts, who puts a higher premium on adherence to precedent than some of his conservative colleagues, joined the three liberal justices.
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The Justice Department asserts that SB8 was enacted “in open defiance of the Constitution” and is asking a judge to block enforcement and declare the law invalid.
“The act is clearly unconstitutional under long standing Supreme Court precedent,” Garland said. “This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear.”
Reaction to the lawsuit
But with the state so insulated from enforcement of the abortion ban, a court might find it hard to quash the Texas law.
“It’s not clear how a court can enjoin … everyone … from enforcing it,” liberal legal scholar Steve Vladek, a University of Texas law professor, wrote on Twitter.
Democrats in Texas lauded the effort to overturn the Texas ban.
“This dystopian abortion ban is uniquely harmful, exceptionally cruel, and blatantly unconstitutional,” said Texas Democratic Party co-executive director Hannah Roe Beck. “It targets millions of Texans – especially working people, Texans of color, and folks in rural communities. Today, our federal government stepped up to put a stop to it.”
Texas Republicans issued a taunting “Come and Take It” message to the Justice Department, playing off the traditional Gonzales flag. In place of the cannon that Mexico demanded back from breakaway settlers in 1835, this version shows a line suggesting a fetal heartbeat.
At a White House meeting on reproductive rights shortly after Garland’s announcement, Vice President Kamala Harris declared that “the right of women to make decisions about their own bodies is not negotiable.”
“The Supreme Court has allowed a state law to stand that deputizes citizens — anyone — to proclaim themselves in a position to have the right under law to interfere with those choices in Texas,” Harris said, boasting that the Justice Department “has spoken loudly in saying that this law is patently unconstitutional.”
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Texas abortion providers
Among the abortion providers and others Harris met with to highlight complaints about the Texas law was Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which started in Austin in 2003.
In 2013, the group challenged an earlier effort to drastically curtail abortion in Texas: House Bill 2, which would have closed three-fourths of abortion clinics in the state. In June 2016, the Supreme Court overturned that law on a 5-3 vote, knocking down unsubstantiated claims of a state interest in protecting women’s health and safety with tough regulations of clinics.
“It was an extremely strong decision,” Hagstrom Miller recalled.
Abortion foes in legislatures around the country have searched for new ways since then to chip away at Roe. SB 8 represents the latest gambit and so far, she said, it is having the desired effect.
Whole Woman’s Health operates nine clinics in five states. The four in Texas — in Fort Worth, McKinney, Austin and McAllen — performed about 9,000 abortions last year, Hagstrom Miller said.
But under the provisions of SB 8, it can now can serve only 5% to 10% of women seeking an abortion, largely because so few women realize they’re pregnant until seven or eight weeks in.
“If this law persists for even a few more weeks, it’s going to be remarkably difficult for us to be able to afford our payroll or to afford the mortgage,” Hagstrom Miller said. “This is going to serve to just shutter clinic stores all over the state.”
Biden’s direction
Biden directed the departments of Justice and Health and Human Services earlier this week to find mechanisms to stymie enforcement of SB8 or preferably overturn it.
The Texas law includes no exception for pregnancies that result from rape or incest. And although those account for only a small fraction of abortions, the blanket ban has fueled the uproar from abortion rights advocates.
On Tuesday, Abbott defended the lack of a rape or incest exception, insisting that six weeks is ample time for women to obtain an abortion.
Medical experts and abortion providers vehemently disagree, noting that’s only about two weeks after most women might realized that they’ve missed a period.
Abbott also vowed, somewhat implausibly, to make the complaint moot by eliminating rape in Texas.
Only 23% of nearly 15,000 rapes reported in Texas annually result in an arrest, according to data from the state’s Department of Public Safety.
“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,” said Abbott, who served as Texas attorney general before his election as governor. “So, goal No. 1 in the state of Texas is to eliminate rape, so that no woman — no person — will be a victim of rape.”
Harris slammed Abbott the next day for “empty words” and bravado in his promise to eliminate rape in Texas.
After Thursday’s meeting with vice president, Dr. Bhavik Kumar, medical director at Planned Parenthood of Gulf Coast, which serves women in southeast Texas and Louisiana, said he took heart from the Biden-Harris administration’s support.
But “SB 8 has essentially banned abortion in Texas,” he said. “Overnight … there are very few people who would qualify for an abortion in Texas.”
Still, Kumar remains optimistic that abortion rights will survive.
“Folks who access abortion and provide abortion are good people,” he said. “Banning abortion never makes it go away.”
