Texas Abortion Ban Standing Would Mean States Could Essentially Override the Constitution, DOJ Warns

The Department of Justice on Monday asked the Supreme Court to suspend the Texas law banning abortion after six weeks, arguing that if the law is allowed to stand it would set a precedent for states to essentially override any other decision made by the court.

In the filing, U.S. Acting Solicitor General Brian H. Fletcher wrote that a lower court was “unjustified” when it ruled that the Texas abortion ban should stay in effect while it works its way through the courts. The law should not be upheld, Fletcher argued, because it “enables Texas’s ongoing nullification of this Court’s precedents and its citizens’ constitutional rights.”

Texas’ Republican Governor Greg Abbott signed the law in May banning abortion after six weeks gestation (which is before many even know they are pregnant), and it went into effect starting September 1st. According to Fletcher, the law has effectively ended all abortions after six weeks in the state. But instead of having the state enforce the ban, the law is designed so that the state deputizes private citizens to sue anyone suspected to be involved with an abortion. This means that even an unknowing ride-share driver who helped transport a woman to a clinic where she had the procedure performed could be sued. If the suit is successful, the plaintiff can be awarded a cash bounty of “not less than” $10,000 in statutory damages per abortion, plus costs, attorney’s fees and mandatory injunctive relief.

Allowing this law to continue, even though it directly conflicts with other Supreme Court decisions like Roe v. Wade, Fletcher argued, would establish a dangerous precedent that could allow states to skirt the Supreme Court, and thus the Constitution, in other matters.

“If, as Texas insists, courts cannot enjoin the State itself, or individual state officers, or private parties who actually bring S.B. 8 suits, then a State could effectively nullify any constitutional decision of this Court with which it disagreed by enacting a sufficiently punitive statutory scheme and delegating its enforcement to the public at large,” Fletcher wrote.

He then gave examples of Supreme Court decisions that states would theoretically be able to nullify, such as District of Columbia v. Heller, which affirmed Second Amendment rights and protected a person’s right to keep and bear arms inside their homes, or Citizens United v. FEC, which allowed corporations and labor unions to spend unlimited amounts of money on political campaigns for or against specific candidates.

The filing reads:

“A State might, for example, ban the possession of handguns in the home, contra District of Columbia v. Heller, 554 U.S. 570 (2008), or prohibit independent corporate campaign advertising, contra Citizens United v. FEC, 558 U.S. 310 (2010), and deputize its citizens to seek large bounties for each firearm or advertisement. Those statutes, too, would violate the Constitution as interpreted by this Court. But under Texas’s theory, they could be enforced without prior judicial review, chilling the protected activity — and the effect of any successful constitutional defense in an enforcement proceeding could be limited to that proceeding alone. The district court correctly determined that the State’s ingenuity does not permit it to nullify constitutional rights in that manner.”

In other words, if the Texas law stands, states could complete an end-run around the Supreme Court by deputizing citizens to enforce non-constitutional laws through lawsuits, as the Texas law allows. According to Fletcher’s argument, however, the law is “clearly unconstitutional” and letting it continue would only “perpetuate the ongoing irreparable injury to thousands of Texas women who are being denied their constitutional rights.”

Last month, the Supreme Court denied in a 5-4 decision a separate case’s emergency request to block the state’s abortion ban. Biden called it “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years.”

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