The U.S. Justice Department announced Thursday it's suing Texas over its new heartbeat law that would effectively ban most abortions in the Lone Star state.
The lawsuit, filed in federal court in Texas, asks a federal judge to declare that the law is invalid, “to enjoin its enforcement, and to protect the rights that Texas has violated.”
“The act is clearly unconstitutional under long-standing Supreme Court precedent,” Attorney General Merrick Garland said at a news conference announcing the suit. The Justice Department is also concerned other states could enact similar laws that he said would “deprive their citizens of their constitutional rights."
But several media reports discussing the lawsuit said it wasn't clear on what grounds the government could legally block the law.
Ryan T. Anderson, the president of the Ethics and Public Policy Center, and the founding editor of Public Discourse, an online journal of the Witherspoon Institute, tweeted, "Biden administration announces it is suing the state of Texas over its prolife law. AG claims the prolife law violates longstanding precedent. Unfortunately for him that longstanding precedent has no basis in the actual Constitution."
Biden administration announces it is suing the state of Texas over its prolife law. AG claims the prolife law violates longstanding precedent. Unfortunately for him that longstanding precedent has no basis in the actual Constitution.
— Ryan T. Anderson (@RyanTAnd) September 9, 2021
White House Press Secretary Jen Psaki made it clear Wednesday the administration planned to make some kind of legal move against the Texas law. "Clearly, this law is is or this..this bill that was signed into law is something we strongly oppose," Psaki said during a press briefing. "And there's an urgency to looking for and announcing actions to help women now."
Biden has directed the Justice Department to try to find a way to block its enforcement. But legal experts warn that while the law may ultimately be found unconstitutional, the way it's written means it'll be an uphill legal battle.
As CBN News has reported, the "Heartbeat" Act (SB 8) bans most abortions in the state because the unique fetal heartbeat of the preborn person can be detected around the six-week mark. The pro-choice crowd argues that's not fair because it comes before most women even know they are pregnant.
The unique element of this bill is that private citizens can sue anyone who helps someone facilitate an illegal abortion. They can also be compensated up to $10,000.
Garland says that while the U.S. Justice Department is still feverishly exploring options to challenge the state law, Justice will enforce federal law "in order to protect the constitutional rights of women and other persons, including access to an abortion."
However, that federal action could be limited by the fact that the act is geared more toward physical acts of intimidation or violence than lawsuits, Mary Anne Franks, a constitutional scholar, and professor at the University of Miami School of Law told the Associated Press. She tips her hand by harshly labeling the pro-life law as "nefarious".
"The nefarious cleverness" of the Texas law is that "you can't do anything until someone actually attempts to use this law," she said. "And that's really late in the game."
The pro-life organization Texas Right to Life says pro-abortion activists have presented Biden's efforts as restoring "women's rights." They argue the Texas heartbeat law advances women's rights because people, including baby girls, have the right to their own bodies from the moment their bodies first exist in the womb.
"Joe Biden has a long record of failures with protecting the unborn and pregnant women," said Texas Right to Life Vice President Elizabeth Graham in a statement. "He is a puppet of the radical abortion agenda, and his DOJ will quickly find that they do not have jurisdiction to stop the Texas Heartbeat Act."
Jonathan Turley, a constitutional law professor at George Washington University Law School, thinks the law could be eventually struck down in court since it prohibits abortion long before the fetus is viable outside the womb.
"It's very likely it will be found unconstitutional. The framers, the drafters themselves understood that ... they have set a line well below existing case law for banning abortions," he said. "Courts are likely to make fast work of the Texas law."
The Supreme Court declined to block the Texas law in a 5 to 4 decision on Sept. 1, though it did not rule on whether the law itself was constitutional.
Turley argues a larger threat to abortion is an upcoming case on the Supreme Court docket in which Mississippi is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy.
By taking up that single question, the justices will be considering whether states can impose limitations on abortion before the fetus is viable outside the womb. There are no other questions at play, no other ways the case could be more narrowly decided. If the high court sides with Mississippi, that would open the door to other states passing similar laws.
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