Attorney General Merrick Garland announced at a press conference Thursday that the Department of Justice is filing a lawsuit against Texas over its new restrictive abortion law.
MERRICK GARLAND: Last week after the Supreme Court allowed Texas Senate Bill 8 to take effect, I said that the Justice Department was evaluating all options to protect the constitutional rights of women and other persons. Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the state of Texas. Our position is set out in detail in our complaint. Its basis is as follows.
SB 8 bans nearly all abortions in the state after six weeks of pregnancy before many women even know they are pregnant and months before a pregnancy is viable. It does so even in cases of rape, sexual abuse, or incest. And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.
The act is clearly unconstitutional under longstanding Supreme Court precedent. Those precedents hold, in the words of Planned Parenthood versus Casey, that, quote, "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." Texas does not dispute that its statute violates Supreme Court precedent. Instead, the statute includes an unprecedented scheme to, in the chief justice's words, quote, "insulate the state from responsibility." Close quote.
It does not rely on the state's executive branch to enforce the law, as is the norm in Texas and everywhere else. Rather, 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. The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible.
Thus far, the law has had its intended effect. Because the statute makes it too risky for an abortion clinic to stay open, abortion providers have ceased providing services. This leaves women in Texas unable to exercise their constitutional rights and unable to obtain judicial review at the very moment they need it.
This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents. Nor need one think long or hard to realize the damage that would be done to our society if states were allowed to implement laws that empower any private individual to infringe on another's constitutionally protected rights in this way.