Justice Dept. seeks emergency order to block Texas abortion law

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The Department of Justice filed an emergency order late Tuesday, asking for a temporary halt to the new Texas law that bans abortions past six weeks. The department said in its filing that the new law, also known as S.B. 8, prevents “women from exercising their constitutional rights.”

“The United States seeks a temporary restraining order or a preliminary injunction enjoining the enforcement of S.B. 8,” the department said. “This relief 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 S.B. 8 purports to prohibit.”

The department claims the law, which went into effect two weeks ago, violates the 14th Amendment.

“It is well-settled that the Fourteenth Amendment prevents states from banning abortion before a fetus is viable,” the filing said. “Because S.B. 8 has that effect, it is plainly unconstitutional under binding precedent.”

The department also alleged that the law violates the Supremacy Clause, which places federal law above state law in various circumstances, and “irreparably injures” the federal government because it is designed to avoid being challenged in court.

“The Act harms the United States' interest in ensuring that States do not evade their obligations under the Constitution and then try to insulate their actions from judicial review, as well as its interest in protecting the constitutional rights of women in its care and custody,” the filing said. “To allow States to circumvent the Federal Constitution in this manner would offend the basic federal nature of the Union. Thus, the unconstitutionality of S.B. 8 alone suffices to establish irreparable harm.” 

The Justice Department also argued that the law is driving many to seek abortions outside of Texas, “overburdening out-of-state clinics and creating backlogs for residents of other states seeking care.” 

In addition to outlawing abortion as early as six weeks into a pregnancy — before most women know they're pregnant — the measure allows private citizens to bring civil lawsuits against anyone who provides an abortion after six weeks or helps a woman access the procedure, such as a friend who drives a woman to obtain an abortion, or clinic staff. Those found in violation of the law are required to pay at least $10,000 to the person who successfully brought the suit.

The department on Tuesday said that, if a restraining order is granted, not only should the law not be enforced while it's in place, but those who try to enforce S.B. 8 should be informed they no longer have the authority the law granted them while it is being litigated. 

Republican Governor Greg Abbott signed the measure into law in May, with Texas joining a dozen other states that have passed laws banning abortions at early stages in pregnancy. Known as “heartbeat bills,” they seek to ban the procedures after a fetal heartbeat can first be detected. 

Attorney General Merrick Garland released a statement after the Texas abortion ban took effect earlier this month promising the Justice Department would “continue to protect” the safety of Texas women seeking abortions.

President Biden called the law “extreme” in a statement and said it “blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.”

Meanwhile, in Mississippi, abortion clinics on Monday asked the Supreme Court to block the state's 15-week abortion ban, saying that the law would upend 50 years of precedent and open the door for other states to outlaw abortion outright. The court will hear the blockbuster dispute over Mississippi's abortion law in its upcoming term, which begins in October. 

Robert Legare contributed reporting.

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