Department of Justice Challenges Texas SB 8

On Thursday afternoon, the Department of Justice (DOJ) filed a case against the State of Texas seeking an injunction against the enforcement of Texas Senate Bill 8, which went into effect on September 1 and placed restrictions on the ability to access an abortion in the state.

The DOJ asserted standing to file suit in the case using the rule expressed in In re Debs, citing that “Every government, entrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one an d the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter.”

The DOJ then noted multiple issues it took with the bill, regarding constitutionality and conflicts with federal law. The first is that the prohibition on abortion by Texas has an outsized impact on interstate commerce with citizens of Texas seeking out of state procedures. This also impacts the use of interstate communications to facilitate these procedures, and otherwise affecting the economies of the surrounding states.

The DOJ second argued that the ban upon abortion after heartbeat directly contravenes the stated constitutional right of a woman to receive an abortion in the pre-viability range of pregnancy, as stated in Roe v. Wade, and as further defined by Planned Parenthood of Se. Pa. v. Casey. Third, the DOJ argued that the bill does not exempt federal actors as potential defendants from liability, which could result in the federal actors being subject to penalties for their direct responsibilities to the federal government, which violates the supremacy clause of the Constitution as well.

Finally, the DOJ objects to the enforcement aspects of the bill. The DOJ cites to previous legislative history and statements from proponents of the bill stating that the bill was designed to evade the issues with previous similar bills which were subject to injunctions against the state actor that was empowered to enforce the bill. SBI 8, the DOJ argued, instead empowers private actors to enforce the bill without a direct tie or impact or connection to the defendants of the lawsuit.

The DOJ specifically noted that “ S.B. 8 vests individuals with law-enforcement authority—a power traditionally reserved exclusively to a sovereign” which should subject these actors to the same type of regulation and injunction as the directly named state actors involved in the enforcement of this bill.

The DOJ seeks an injunction of this highly controversial provision, and review appears likely due to the named defendant being separated from the empowered plaintiffs under this new bill.