• September 17, 2021

Exclusive: Garland connects all the dots for Supreme Court on precedent in Texas abortion ban suit

 Exclusive: Garland connects all the dots for Supreme Court on precedent in Texas abortion ban suit


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The Justice Department is seeking an injunction to prohibit enforcement of the Texas law and a permanent order to declare the ban invalid and unenforceable. “It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,'” the lawsuit argues. “But Texas has done just that.” The suit says that the federal government “has the authority and responsibility” to prevent Texas from depriving its residents of their constitutional rights by attempting an end-run around the courts.

The Texas law, Justice asserts, violates the Supremacy Clause of the Constitution, which establishes federal law as supreme to state law. It also violates the 14th Amendment’s guarantee of due process, the suit argues. The Supreme Court’s standing recognition of a right to an abortion is based on the 14th Amendment.

In possibly its boldest argument, in keeping with the audaciousness of the Texas law, the government is arguing that that the law makes the private parties it charges with enforcing the law “agents” of the state. That, Steve Vladeck, a University of Texas Law School professor, told CNN is “the whole ball game.” By making would-be enforcers of the law, private citizens, agents of the state, Justice argues, they can sue the state, and the state can’t use a “sovereign immunity” defense to evade a challenge. Under existing precedents, Justice argues, the state can be sued for constitutional violations when it deputizes citizens to carry out those violations.

The Justice Department also argues that the Texas law subjects federal employees, arguing it  “exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons” in the federal government’s care. That includes federal workers in the Department of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers of Medicare and Medicaid Services, the Office of Personnel Management, and the Department of Defense, which all operate in Texas, and have the legal obligation as part of the jobs to facilitate abortion services. Justice argues that’s another violation of the supremacy clause and the principle of intergovernmental immunity. This gives Justice standing to sue the state now—it is causing harm to these federal employees who need to do their jobs without the threat of a civil suit.

“If conservatives on the Supreme Court were intellectually honest,” The Nation’s justice correspondent Elie Mystal writes, “Garland has solved their legal problem by pointing to their own precedents regarding state enforcement under the guise of private action.” He also points out that’s a big if. “If they really want to pretend that bounty hunters can violate the constitutional rights of women, a complaint by the Department of Justice asking them to read their own precedents is not going to stop them.”

“In terms of legal authority, this was the most the DOJ could do,” Mystal writes. “Nothing can stop conservative judges from ignoring the law, but it’s worth noting that the DOJ complaint contains a series of strong legal arguments against the Texas law.”

Originally the government’s suit, filed in the U.S. District Court for the Western District of Texas, was assigned to George W. Bush appointee Judge Lee Yeakel in Austin, who has consistently upheld abortion rights. But later in the day, it was reassigned to Judge Robert Pitman, an Obama appointee. Pitman was the judge assigned to hear a challenge to SB 8, the Texas ban, just days before it was enacted. But the U.S. Court of Appeals for the 5th Circuit swept in and delayed that hearing, thus kicking the case to the Supreme Court.

It’s the same appeals court that will undoubtedly lift any injunction Pitman would impose, thus sending it back to the Supreme Court to decide if it will once again ignore decades and of its own precedents, set forward clearly in the government’s case. Incidentally, the recitation of Supreme Court precedent on abortion provided by the Justice Department serves as a good reminder to them as they look forward to hearing and deciding the Mississippi law, now enjoined, that would overturn Roe v. Wade entirely. That case will be heard this fall.

Garland is making the best case he can, connecting all the dots for the Supreme Court and showing them precisely how they would be upending their institution and what’s left of their legitimacy if they ultimately uphold the Texas law. The actions they’ve taken in both regular and unsigned, opaque shadow docket orders suggest that that’s precisely what they are going to do. That might, finally, be enough to force what has to happen for the court to regain any legitimacy: reform including, but not limited to, expansion.





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