The Justice Department revealed this week that it would be asking the U.S. Supreme Court to suspend the controversial abortion ban that was recently enacted in Texas while legal fights over the measure play out. The ban outlaws almost all abortions after some six weeks of pregnancy, with no exceptions for rape or incest, and it includes provisions by which private citizens can sue those suspected of involvement in the procurement of an illegal abortion. Should such a lawsuit prove successful, then the person who brought it is entitled to at least $10,000 — essentially setting up a draconian bounty system targeting those who assist in the exercise of reproductive rights.
The measures allowing for such lawsuits have complicated efforts to challenge the abortion ban in court. The Supreme Court, for instance, has already allowed the law to remain in effect once, with conservative justices on the bench saying that “the challengers had not shown that they were suing the proper defendants,” as The Washington Post summarizes. Texas state Attorney General Ken Paxton has insisted that the federal lawsuit against the ban is misplaced, insisting on a similar note that “the only way to directly challenge the constitutionality of the law is to wait until a doctor is sued under its provisions in state court,” the Post adds. The procedural difficulties in challenging the law were purposefully built into it.
The Justice Department’s lawsuit challenging the law is distinct from the case in which the Supreme Court previously allowed it to stand. The Justice Department scored a temporary success when federal Judge Robert L. Pitman suspended enforcement of the law, but his order was swiftly set aside by the U.S. Court of Appeals of the 5th Circuit, leaving the Justice Department to seek intervention from a higher judicial authority. Details of the Justice Department’s planned argument to the Supreme Court in favor of putting the law on hold were not immediately clear, although the Post explains how “Justice Department lawyers and constitutional law scholars counter that the federal government must be permitted to take action to prevent an end-run around the judicial system.”
Previously, Attorney General Merrick Garland has adamantly insisted that the Texas law “is clearly unconstitutional under longstanding Supreme Court precedent,” adding that federal officials possess “the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”