- The Washington Times - Thursday, September 9, 2021

The Biden Justice Department filed a civil lawsuit Thursday over Texas’ new abortion law.

Attorney General Merrick Garland said Texas’ ban on abortions after a fetal heartbeat is detected, typically about six weeks into pregnancy and before many people learn that they’re pregnant, is “clearly unconstitutional.”

“This kind of scheme, to nullify the Constitution of the United States, is one that all Americans — whatever their politics or party is —should fear,” Mr. Garland said during a press conference.

The law bans the majority of pre-viability abortions, including in instances of rape, sexual abuse or incest, which he said violates Supreme Court ruling in Casey v. Planned Parenthood, which found that states cannot prohibit a pregnant person from deciding to terminate a pregnancy before viability.

Texas, he said, does not dispute that it violates the high court’s precedent, so it decided to include a statute in the law which bars public officials from enforcing it and has instead “deputized ordinary citizens to serve as bounty hunters.”

Under the law, individuals can be rewarded up to $10,000 for successfully suing anyone who helps someone receive a pre-viability abortion.

The 27-page lawsuit filed in the U.S. District Court for the Western District of Texas argues that the statute was adopted to insulate the state from responsibility by making it more difficult to challenge in court.

“It takes little imagination to discern Texas’s goal — to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review,” the federal lawsuit states.

The DOJ wants a federal judge to declare that the law is invalid under the Supremacy Clause of the Fourteenth Amendment, that it is preempted by a federal law protecting access to abortion clinics, and that it violates the doctrine of intergovernmental immunity.

It is also seeking a preliminary and permanent injunction barring the state from enforcing the law.

The lawsuit comes after health clinics in the state stopped providing post-six-weeks abortions when the law went into effect Sept. 1. The Supreme Court ruled 5-4 the following day to leave it in place while litigation against it continues.

Stephen Miller, president of America First Legal (AFL), said the lawsuit is another example of the Biden administration’s “outrageous politicization” of the Justice Department.

“This is not a legal action, but a political action — a statement of President Biden’s support for abortion,” said Mr. Miller, a former Trump White House policy adviser. “Using DOJ and the courts to make this purely political statement is enormously troubling,” he said.

AFL is co-counsel on Texas’ legal team defending the law.

The justices did not rule on the ban’s legality, but that could be reviewed in the future depending on how lower courts continue to treat challenges under the new law.

Some abortion providers have filed lawsuits, arguing the law violates the high court’s 1973 ruling in Roe v. Wade, which established a the right to an abortion.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

• Emily Zantow can be reached at ezantow@washingtontimes.com.

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