The move comes days after a three-judge panel on the 5th Circuit decided last week to temporarily reinstate the abortion law, placing an administrative stay on the lower court’s injunction while it considers Texas’ larger argument.
Thebars abortions after six weeks into a pregnancy, once a fetal heartbeat can be detected — which is often before many women know they’re pregnant.
And one of the defining features of the Texas law is the fact that no state officials are involved in enforcing actions taken against violations of the ban. Instead, the law authorizes private citizens to file civil lawsuits in state courts against alleged violators of the law — clinics, providers or even people who help a woman get an abortion — and provides a monetary incentive for them to do so. If a suit is successful, the plaintiff is entitled to at least $10,000 from the violator.
The mechanism complicates the efforts of abortion providers to seek judicial review and to stop the law from taking effect because it hasn’t been entirely clear who they should sue, given that the state isn’t enforcing the law.
In Monday’s filing, the government argues that the lower court’s injunction against the Texas law should be reinstated because the Texas abortion law is clearly unconstitutional in denying citizens access to a judicial remedy, and is therefore unlikely to stand.
“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” The Justice Department argues. “Because SB8’s unconstitutionality is obvious, and because Texas’s sovereign immunity poses no barrier to this suit, Texas is unlikely to succeed on the merits.”
Monday night’s filing also argues that reinstating the law will cause “irreparable harm” to individuals.
In its filing, the Justice Department contemplates a parallel scenario in which a state “might ban the possession of all handguns in the home…and deputize its citizens to seek bounties for each firearm.”
The circuit court’s order reinstating the Texas law is still in effect, until the three-judge panel rules on Texas’ motion for a longer stay, pending litigation.
Melissa Quinn contributed reporting.