UPDATE, October 7: Judge Robert Pitman temporarily blocked Texas SB 8 on Wednesday night, issuing a preliminary injunction as part of the lawsuit brought by the Department of Justice. Attorneys for Texas have filed an appeal with the Fifth Circuit, asking for an emergency stay of the district judge’s order.
The U.S. Department of Justice sued the state of Texas on Thursday, arguing the state’s blatantly unconstitutional pre-viability abortion ban was in “open defiance of the Constitution.”
United States of America v. the State of Texas seeks to permanently block SB 8 from being enforced, including by private citizen “bounty hunters.” A hearing to block the law has not yet been scheduled.
The lawsuit claims the Texas law violates the U.S. Constitution’s supremacy clause, among others.
“The act is clearly unconstitutional under long-standing Supreme Court precedent,” Attorney General Merrick Garland said Thursday in a news conference. “Those precedents hold, in the words of Planned Parenthood v. Casey, that ‘regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’”
Roe has collapsed and Texas is in chaos.
Stay up to date with The Fallout, a newsletter from our expert journalists.
The lawsuit was filed in the U.S. District Court for the Western District of Texas and was initially assigned to Austin-based Judge Lee Yeakel, who is no stranger to abortion rights litigation in Texas. Yeakel has heard cases challenging the state’s attempts to roll back abortion access during the pandemic as well as attempts by anti-choice lawmakers to target abortion clinics in the state for heightened regulation and to limit abortions later in pregnancy. In each of those cases, Yeakel ruled in favor of protecting abortion rights and access.
Later in the day, the court docket changed to Judge Robert Pitman, an Obama appointee.
In August, Pitman was set to hear a previous challenge to SB 8, until the Fifth Circuit Court of Appeals stepped in and stayed those proceedings, triggering a chain of events that culminated in the Supreme Court’s shadow docket ruling last week to let the law take effect.
“It’s a game changer that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas and disarm vigilantes looking to collect their bounties,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.
Notably, the DOJ’s lawsuit did not assert claims under the Federal Access to Clinic Entrances (FACE) Act, the federal law charged specifically with protecting abortion clinics, providers, and patients from threats, intimidation, and violence. Earlier this week, Garland had said the DOJ “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,” leading to speculation that the Biden administration would turn to the decades-old statute for help here.
“The Department of Justice’s lawsuit against the Texas abortion ban is welcome news,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “Make no mistake, the Supreme Court’s refusal to block the ban last week allowed Texas to take away most abortion access just as surely as if they had overturned Roe v. Wade.”
“As a result, today in Texas, people—especially those with limited resources, people of color, undocumented people, and young people—cannot get the care they need and are being forced to stay pregnant and face having a child against their will. This first step by the Department of Justice is critical to righting this injustice for the people of Texas, and to prevent this catastrophe from playing out in other states that have pledged to follow Texas’ lead,” Amiri added.
This post was adapted from a Twitter thread.