The Biden administration is reportedly planning to sue the state of Texas over a new law that bans most abortions.
The Justice Department could file the lawsuit as soon as Thursday, two sources familiar with the matter told the Wall Street Journal.
The law that took effect last week exposes abortion providers to financial penalties if they terminate pregnancies once a fetal heartbeat can be detected, usually at around six weeks.
It is the strictest abortion law in the country, and has drawn furious backlash from pro-abortion groups after surviving a Supreme Court challenge.
The DOJ is expected to argue in its suit that the Texas law illegally interferes with federal interests, the Journal reported. The precise nature of that legal argument was not immediately clear.
The Biden administration is reportedly planning to sue the state of Texas over a new law that bans most abortions
The Texas law is unique in that it leaves enforcement up to private individuals, rather than the government.
The law authorizes private citizens to sue any abortion provider they suspect is in violation of the law, setting minimum damages of $10,000 per banned abortion if the suit prevails.
Biden, who denounces the law as ‘almost un-American,’ has already directed the Justice Department to try to find a way to block its enforcement.
On Monday, Attorney General Merrick Garland says his prosecutors are exploring all possible options to block or overturn the Texas law.
But legal experts warn that while the law may ultimately be found unconstitutional, the way it’s written means it’ll be an uphill legal battle.
Known as SB8 or the Heartbeat Law, the new state law prohibits abortions once medical professionals can detect cardiac activity – usually around six weeks, before some women know they’re pregnant.
Courts have blocked other states from imposing similar restrictions, but Texas’ law could be harder to challenge because it leaves enforcement to private citizens through civil lawsuits instead of criminal prosecutors.
Texas Governor Greg Abbott is seen above. The Texas law is unique in that it leaves enforcement up to private individuals, and could be difficult to overturn
Pressure is mounting not only from the White House but also from Democrats in Congress, who want Garland to somehow take action.
Nearly two dozen lawmakers wrote to him Tuesday calling for the ‘criminal prosecution of would-be vigilantes attempting to use the private right of action established by SB8.’
However, the Justice Department’s legal path forward in challenging the law remains unclear.
So far, Garland has said only that federal officials will not tolerate violence against anyone who is trying to obtain an abortion in Texas, which the Heartbeat Law does not endorse.
At the forefront of that plan is enforcement of the Freedom of Access to Clinic Entrances Act.
That law, commonly known as the FACE Act, normally prohibits physically obstructing access to abortion clinics by blocking entrances or threatening to use force to intimidate or interfere with someone. It also prohibits damaging property at abortion clinics and other reproductive health centers.
Garland says that while his department is still urgently exploring options to challenge the state law, Justice will enforce the federal law ‘in order to protect the constitutional rights of women and other persons, including access to an abortion.’
However, that federal action could be limited by the fact that the act is geared more toward physical acts of intimidation or violence than lawsuits, said Mary Anne Franks, a constitutional scholar and professor at University of Miami School of Law.
‘The nefarious cleverness’ of the Texas law is that ‘you can´t do anything until someone actually attempts to use this law,’ she said. ‘And that´s really late in the game.’
Pro-abortion activists supporting legal access to abortion protest during a demonstration outside the U.S. Supreme Court in March
Anti-abortion activists demonstrate in front of the the US Supreme Court last January
And even if an abortion provider – or people who help a woman get an abortion – should successfully defend a lawsuit, that wouldn’t block a stack of future suits.
A Texas judge’s decision last week temporarily shielding some some abortion clinics from being sued by the state´s largest anti-abortion group, for example, didn’t affect any other groups.
‘That raises real concerns about any efficacy of any of the actions DOJ could take,’ Franks said.
Still, there are tools the federal government could use, she said. Prosecutors could bring criminal charges under civil rights measures originally written to root out the Ku Klux Klan.
Those laws say that private citizens working with the state to deprive people of their constitutional rights could face criminal violations.
There’s also a tool on the civil side, called a Section 1983 action, that allows people to sue someone else who is blocking them from exercising their constitutional rights.
Those civil lawsuits must be filed by the person under attack rather than the government, but federal attorneys could join suits already filed, she said.
Those actions, she said, could have their own chilling effect on abortion foes: People opposed to abortion who might want to sue providers might reconsider if they could potentially face federal criminal charges.
Developing story, more to follow.