On Thursday, the Department of Justice filed a lawsuit against Texas’ S.B. 8, which bans abortion after six weeks with no exception for rape or incest. The DOJ’s intervention came a week after the Supreme Court refused to block the law by a 5–4 vote on account of “complex and novel” procedural questions. Because it represents the United States, the Justice Department has certain advantages over the private plaintiffs who brought the suit that failed to stop the law, including the ability to sue Texas directly. But it is unclear whether Attorney General Merrick Garland’s gambit will succeed—or hand SCOTUS an opportunity to further insulate S.B. 8 from judicial review.
Unlike most abortion bans, S.B. 8 is not enforced by the state, but by private citizens. It empowers random people to file $10,000 lawsuits against anyone who performs an abortion after six weeks, as well as anyone who “aids or abets” one. Because of this convoluted structure, it’s unclear who, exactly, abortion providers can sue to halt the measure’s implementation, which was a deliberate strategy to get it through. Typically, providers would sue state officials tasked with implementing the ban, but these officials have no power to implement S.B. 8; enforcement lies solely in the hands of bounty hunters. So, instead, the clinics sued the Texas judges who would impose the $10,000 fines against abortion providers and “abettors,” as well as clerks of the court. In a cryptic, one-paragraph order, the Supreme Court rejected this theory, allowing the law to take effect. The state’s abortion providers promptly shut their doors, making nearly all abortions inaccessible in Texas for the first time since Roe v. Wade came down in 1973.
After a week of outrage from the left (and lies from the right), the DOJ has now stepped in with a different approach to combat the state’s “open defiance of the Constitution”—suing Texas directly. It put forth several different reasons the federal government has standing to litigate this case, and how a court could block S.B. 8 without running into a procedural roadblock. The agency argued that “the United States may vindicate its interest in preventing Texas from effecting” a law “that flagrantly infringes the constitutional rights of the public at large and seeks to block the injured members of the public from challenging that law in court.” It also identified multiple programs funded by the federal government that “abet” abortion in violation of S.B. 8. For instance, the Job Corps and the Office of Refugee Resettlement require contractors to allow access to abortion; the Bureau of Prisons must let incarcerated people terminate pregnancies; and the Centers for Medicare & Medicaid Services compels Medicaid coverage of abortions due to rape or incest.
Under the doctrines of preemption and intergovernmental immunity, a state cannot interfere with the duties of the federal government, including federal contractors. Yet S.B. 8 would prohibit the government from carrying out these programs within Texas wherever they facilitate abortion. So the Justice Department has a very strong argument against the measure insofar as it hampers the United States’ own obligations. As the lawsuit puts it, S.B. 8 constitutes “an unlawful direct regulation of the federal government” that seeks to illegally “interfere with and frustrate” its duties.
But these federal programs account for a narrow slice of abortion “abetting” in Texas. What about the millions of regular Texans whose rights are curtailed by S.B. 8? Here, the lawsuit argues that the United States can sue to protect every person’s 14th Amendment rights under the supremacy clause, which makes the Constitution supreme over state laws. According to the DOJ, the federal government may “vindicate its interest in ensuring that Texas respects its obligations under the Constitution.” The agency also argues that, to safeguard the right to abortion, courts may enjoin “the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8.”
This portion of the lawsuit marks a creative attempt to get around S.B. 8’s unusual reliance on private enforcement. It treats “private parties who would bring suit under S.B. 8” as “agents” of the state, creating de facto government officials who can be sued for violating the 14th Amendment. This approach is grounded in precedent that bars states from farming out unconstitutional policies to ostensibly private actors. It takes advantage of the Justice Department’s unique ability to sue Texas on behalf of the United States: The agency need not name specific defendants because it has brought this action against the state itself. In other words, the DOJ can avoid problems that abortion providers faced—namely, that we don’t yet know who will sue under S.B. 8. Courts will have more difficulty tossing out the lawsuit on the grounds that the plaintiffs identified the wrong defendants.
This approach, however, also raises a number of questions. For example, how can courts identify these private parties if no one has sued yet? Can a court issue an injunction that covers a purely theoretical group of people? Moreover, is the Justice Department asking courts to forbid Texas judges and clerks from enforcing S.B. 8? The lawsuit mentions “officers” of the state, which could arguably encompass those in the judicial branch. But if so, the DOJ could have been much clearer. It is highly unusual to sue judges for carrying out a law. If that’s what the Justice Department wants, it could have been more explicit rather than requiring courts to read between the lines.
Of course, Texas lawmakers designed S.B. 8 to provoke precisely this kind of ambiguity. The Justice Department has put forth a range of reasonable arguments, but courts eager to undermine Roe v. Wade can always find a reason to reject them. The case has been assigned to Judge Robert Pitman, the Barack Obama appointee who seemed poised to block S.B. 8 before an appeals court stepped in. The DOJ has now given Pitman enough grist to justify halting S.B. 8, even if he must rely on some relatively novel theories developed in reaction to a novel law. As always, the bigger question is whether the Supreme Court will buy it; if it doesn’t, the court could make S.B. 8 even more impenetrable, closing off yet another potential avenue for relief. While the nation awaits the justices’ verdict, millions of Texans continue to live under constant threat of a ruinous lawsuit if they dare to exercise their reproductive rights.
Update, Sept. 9, 2021: This article has been updated to note that the case has been reassigned to Judge Robert Pitman. It was initially assigned to Judge Lee Yeakel.
