Justice Department seeks injunction to stop Texas’ fetal heartbeat abortion law from being enforced

By Mede Nix

DALLAS — The Justice Department late Tuesday night filed filed a request for a temporary restraining order or preliminary injunction against Texas’ fetal heartbeat abortion law banning abortions as early as six weeks into a pregnancy.

The filing comes just days after the Biden administration sued Texas to block the six-week abortion ban, known as Senate Bill 8 and signed into law by Gov. Greg Abbott. In a news conference announcing the lawsuit last week, Attorney General Merrick Garland blasted the state for deputizing legal “bounty hunters” to deter a procedure that remains legal, technically, under state law and Supreme Court precedent.

In its filing in federal court in Austin, the Justice Department wrote that a preliminary injunction or temporary restraining order is necessary to “protect the constitutional rights of women in Texas and the sovereign interest of the United States in ensuring that its States respect the terms of the national compact. It is also necessary to protect federal agencies, employees and contractors whose lawful actions SB 8 purports to prohibit.”

The new Texas law seeks to sidestep Roe vs. Wade, the Supreme Court ruling in another Texas case that has limited governmental restrictions on abortion since 1973, by deputizing enforcement to individuals and groups that oppose abortion.

Senate Bill 8 bars health care providers from performing an abortion once a fetal heartbeat is detected. And it offers a $10,000 bounty for lawsuits against providers or anyone who “aids or abets” an abortion, a private enforcement action that could even target an Uber driver who transports a woman to a clinic.

If courts allow the Texas law to survive, it will be the end to the Roe era.

The filing said that the ban has “gravely and irreparably impaired women’s ability to exercise their constitutional right to an abortion across the state. Due to the prospect of ruinous liability for clinics and providers, beginning September 1, abortion providers in Texas ceased providing abortions after six weeks, absent a medical emergency, which likely amounts to between 85 and 95% of all abortions previously provided.”

It also noted that some women are seeking appointments hundreds of miles away in Oklahoma, Kansas and New Mexico and Colorado, “where abortion providers have been overwhelmed with Texas residents unable to obtain abortions in Texas.”

Following the Justice Department’s lawsuit last week, Abbott was confident the law would be upheld in court, said spokeswoman Renae Eze.

“The most precious freedom is life itself,” she said. “Texas passed a law that ensures that the life of every child with a heartbeat will be spared from the ravages of abortion. Unfortunately, President Biden and his administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn.”

Two weeks ago, a 5-4 ruling by the U.S. Supreme Court refused to halt enforcement of SB 8 when it went into effect Sept. 1, sending chills through the ranks of abortion rights advocates as a sign the high court may have critical mass not just to erode Roe but to scrap it. Chief Justice John Roberts, who puts a higher premium on adherence to precedent than some of his conservative colleagues, joined the three liberal justices.

In seeking the restraining order, the Justice Department said it is likely to prevail because SB 8 is unconstitutional and was enacted in violation of the 14th Amendment and the Supremacy Clause that federal law supersedes state law.

“And by delegating enforcement authority to private bounty hunters, the statute ensures that the only way providers may challenge the constitutionality of SB 8 is by performing abortions prohibited by the law and risking ruinous penalties — a prospect that has succeeded in its intended goal of chilling the prohibited activity altogether,” the filing said.

The Planned Parenthood Federation of America praised the request for the injunction.

“This is another welcome step forward in the fight for abortion access in Texas,” Helene Krasnoff, vice president for public policy litigation and law for the Planned Parenthood Federation of America, said in a written statement. “We are grateful that the Department of Justice is bringing its full might to restoring Texans’ ability to exercise their constitutional right to abortion. For two weeks now, Texans have been forced to either cross state lines for care or carry a pregnancy against their will. They need relief now.”

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