What Else Biden Can - and Should - Do to Fight the Texas Abortion Ban

Natasha Lennard / The Intercept
What Else Biden Can - and Should - Do to Fight the Texas Abortion Ban Protesters take part in the Women's March and demonstrate against Texas's S.B. 8, a near total ban on abortion, in Austin, Texas, on Oct. 2, 2021. (photo: Sergio Flores/AFP/Getty Images)

The judicial back-and-forth on the abortion law shows why the Justice Department’s lawsuit against Texas won’t be enough.

If there was a glimmer of optimism last week that Texas’s authoritarian new abortion law would soon be overturned in the courts, the hope was swiftly dashed. On Wednesday, a federal judge temporarily blocked the law known as S.B. 8 — the most restrictive anti-abortion law in the country, a de facto abortion ban — as part of a lawsuit the Justice Department has brought against the state of Texas.

“This Court will not sanction one more day of this offensive deprivation of such an important right,” U.S. District Judge Robert Pitman said in the order blocking the law. Two days later, Texas successfully challenged the judge’s order before the notoriously anti-abortion 5th U.S. Circuit Court of Appeals.

By Friday night, the abortion ban was back in effect. The dizzying turnaround was not unexpected: Texas was always going to appeal the judge’s order, and the 5th Circuit was always going to side with the state.

Last week’s events offer a painful reminder of the difficulties — by design — that those seeking to fight the Texas abortion ban in federal courts will face. The Justice Department is right to bring the suit against this blatantly unconstitutional law, but the architects of the abortion ban ensured that it would be shielded from scrutiny in federal court, constitutionality be damned.

There was a good sign in the wrangling: The federal government finally got involved in a state-level reproductive rights issue, something preceding Democratic administrations had been loath to do. Yet if the Justice Department lawsuit reflects the Biden administration’s willingness to buck conventions around federal inaction, we should demand far more than this likely doomed legal intervention when it comes to reproductive rights.

When the Texas abortion ban came into effect in September, after the 5th Circuit canceled a hearing on its constitutionality and the Supreme Court declined to intervene, I argued at the time that we cannot rely on the courts to defend reproductive rights. Roe v. Wade is for now, but perhaps not much longer, still on the books. Nonetheless, in Texas, an abortion after six weeks — before many people even know that they’re pregnant — is illegal.

Constitutional challenges to the abortion ban appear stymied from the jump because the law permits private individuals, rather than state authorities, to bring civil cases against abortion providers, along with anyone believed to have aided a person in accessing an abortion, including an Uber driver taking someone to a clinic. For every successful case, these bounty-hunter plaintiffs will receive $10,000; unlike most civil litigation, the plaintiff need not even prove that they have been harmed in any way.

S.B. 8 relies on the doctrine of “sovereign immunity” as protection against federal court challenges: Individuals can enforce their constitutional rights only against the government and its agents, but private citizens are to be the plaintiffs in S.B. 8 cases.

Notorious 5th Circuit

A group of abortion providers did try to block the law on constitutional grounds — as a contravention of Roe — by suing a number of Texas officials and judges. The 5th Circuit rejected the suit, arguing that state officials were the wrong defendant targets because S.B. 8 asserts that state actors cannot enforce the law.

There are, of course, legal holes to poke in the abortion ban’s armor, as the Justice Department is attempting. The government rightly claims that the law violates the constitutional rights of people to access abortions before so-called fetal viability — which is true, but a fact that likely won’t see the law overturned. The lawsuit also claims that the abortion ban violates federal law “by purporting to prohibit federal agencies from carrying out their responsibilities under federal law.”

However meritorious this claim, the federal government’s efforts may come to nought. First it has to prove that it has standing to sue Texas in federal court in the first place. A party must be able to show that they have been directly harmed by the party they are suing in order for the case to be heard in federal court. It’s not clear that the government reaches this standard, which is a further vile irony, given that plaintiffs bringing S.B. 8 civil suits need have suffered no personal harm to sue an abortion provider.

The limits of the government’s case are, of course, not simply a matter of possible de jure flaws. The 5th Circuit is a profoundly right-wing court and stands as a consistent barrier to reproductive justice. The support the judges have shown Texas in this case so far can be expected to continue.

This is the same appeals court that upheld an absurd previous attempt by Texas to shutter abortion clinics by demanding that abortion doctors have admitting privileges at a hospital within 30 miles of the clinics where they work — a law eventually struck down by the Supreme Court. Last year, a 5th Circuit ruling permitted Republican Texas Gov. Greg Abbott to block access to abortions as part of a Covid-19 executive order banning surgeries and procedures that were not “immediately medically necessary.”

“The court is notoriously ideological and results-oriented — and, with the addition of four new Trump-appointed judges, is poised to become even more so,” The Intercept’s Jordan Smith wrote of the 5th Circuit in 2019.

Other Paths

Legal scholars have highlighted other avenues the Justice Department could take to challenge S.B. 8. For example, the Ku Klux Klan Act of 1871 was passed to protect the civil rights of previously enslaved Americans who were targeted by white supremacist vigilantes; the same law could apply to would-be bounty hunters in Texas.

“The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law,” wrote Harvard Law School professor Laurence Tribe. “If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?”

It’s certainly a strategy to be embraced — but one that presumes anti-abortion vigilantes will be deterred by the threat.

It goes without saying that Congress should cement the right to abortion into legislation, but without abolishing the filibuster, no such effort can currently succeed.

If the president meant what he said in vowing to “launch a whole-of-government effort” to protect the right to abortion in Texas, then we must demand that he live up to his word swiftly. S.B. 8 will not be the last of such schemes. The Food and Drug Administration should immediately permit the sale of medical abortion pills in pharmacies and through the mail, rather than in person through a medical professional. The pills should be made available on demand without prescription.

There are other untapped federal resources that should be deployed in this crucial fight, if the government is truly committed to protecting what is left of the right to an abortion. “The U.S. government could stake out places and supply personnel for abortion provision, governed by federal laws, that are not subject to state restrictions or, for that matter, to lawsuits under laws like SB8,” wrote Mary Ziegler and Rachel Rebouché in the Washington Post. “Federal employees would be immune from lawsuits commenced by private citizens.”

As Republican states have decimated reproductive rights over the years, grassroots activists have consistently led the way in enabling people to access abortions, be it through sharing resources, circulating abortion pills, housing people needing to cross state lines, or building national networks not reliant on the hierarchies of major nonprofit organizations. If the federal government wants to stand up for reproductive justice, it is these grassroots activists who should be looked to as the experts in the field.

Such is the state of the United States criminal legal system that if even the government wants to protect constitutional rights, it will need to learn to skirt the law. To be sure, the executive branch in this country has a long history of taking extrajudicial action for far less noble causes.

Those on the front lines of the fight for universal abortion access have long looked beyond the courts and the law; we have every reason to demand that the government do the same.

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