Can the Department of Justice Stop Texas’ Heartbeat Act?

The DOJ has filed suit against the Texas law, but legal critics say its argument is ‘weak’ and the outcome could actually hinge on another major abortion case before the Supreme Court.

U.S. Attorney General Merrick Garland (c), Deputy Attorney General Lisa O. Monaco (l) and Associate Attorney General Vanita Gupta (r) hold a news conference to announce a lawsuit against Texas at the Department of Justice in Washington on Sept. 9.
U.S. Attorney General Merrick Garland (c), Deputy Attorney General Lisa O. Monaco (l) and Associate Attorney General Vanita Gupta (r) hold a news conference to announce a lawsuit against Texas at the Department of Justice in Washington on Sept. 9. (photo: Mandel Ngan / AFP/Getty)

WASHINGTON — Alleging grave constitutional issues are at stake, the U.S. Department of Justice filed suit in federal district court on Sept. 9 seeking to block enforcement of Texas’ Heartbeat Act — but does its legal action have much chance of success?

“This kind of scheme to nullify the Constitution of the United States is one that all Americans — whatever their politics or party — should fear,” charged U.S. Attorney General Merrick Garland at a Justice Department news conference announcing the legal challenge filed in federal district court in Austin, Texas. 

“If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”

The lawsuit confirmed that the Biden administration would make good on the president’s vow to mount a “whole-of-government” response to an unexpected and “unprecedented” threat to abortion rights. However, experts questioned whether the Justice Department’s legal argument would ultimately prevail, and they rejected what they viewed as a mischaracterization of the law’s unique provisions. 

“The Biden administration is in full-battle mode to reopen the abortion clinics in Texas,” Gerard Bradley, an expert on the U.S. Constitution at the University of Notre Dame Law School, told the Register. “Their court filings so far are competent professional products. But the arguments they make are quite weak.” 

The DOJ sued Texas after the U.S. Supreme Court, in a 5-4 decision, declined to issue a temporary injunction suspending the Texas law, sending the case back to the lower courts. The high court did not rule on the merits of the case, Whole Woman’s Health v. Jackson, which is now before the 5th Circuit Court of Appeals. 

In papers filed with the federal district court on Sept. 14, lawyers for the Department of Justice acknowledged “the absence of express statutory authority” supporting the administration’s lawsuit against the state of Texas. Nonetheless, they defended the federal government’s interests in pursuing injunctive relief, arguing that the “unique circumstances” posed by “S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review” justified the legal action.

“This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States in ensuring that its states respect the terms of the national compact,” read the DOJ filing.


The Enforcement Mechanism

The new Texas statute was designed to circumvent routine legal challenges to similar laws by allowing private citizens, rather than local district attorneys or the state attorney general, to enforce the law by suing those who facilitate the procedure after a fetal heartbeat has been detected.

“The key strategic move in the Texas law is to deprive the abortion industry of their usual tactic when faced with an abortion-restrictive state law, which is to file a lawsuit just before the law is scheduled to take legal effect and have a federal trial judge issue an injunction against enforcement of the law,” said Bradley.

In the past, that strategy has halted enforcement of pro-life laws, Bradley added, because the injunction “ties the hands” of the relevant state government officers, “permitting the abortion industry in that state to operate unimpeded.”

The law, S.B. 8, is a game changer because it “specifically denies any such enforcement authority to any state official,” said Bradley. 

Instead, it allows “private citizens to file lawsuits to enforce the law’s restrictive provisions,” effectively barring the procedure after six weeks.

If the Texas law survives legal challenges from both the DOJ and Texas abortion providers, other pro-life legislatures are expected to adopt similar language. That fact underscores the scope of the threat it poses to “abortion rights” across the nation.

“The [DOJ’s] complaint reaches beyond Roe v. Wade to encompass a structural attack on the basic design of the extraordinary Texas law,” the influential Harvard Law professor Laurence Tribe told The New York Times

Indeed, Garland directly attacked the statute’s language allowing private citizens, in and out of state, to sue those who violate the law, arguing that the state had “deputized” them to act on its behalf. 

“[W]ithout any showing of personal connection or injury,” said Garland, such individuals would “serve as bounty hunters authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.”


Utilized in Whistleblower Statutes

Some media outlets have employed the “bounty hunter” label in their coverage of the case. But Roger Severino, senior fellow at the Ethics & Public Policy Center, where he directs the HHS Accountability Project, dismissed the DOJ’s term as “outlandish.” 

“Bounty hunters catch known criminals for a reward, sometimes with force, but, here, all Texans can do is sue in court,” noted Severino in a Sept. 16 column in Newsweek. “They can only recover if they present evidence of lawbreaking. In short, they are whistleblowers.” 

“To be sure, they are incentivized to uncover abortionists’ violations of the law, but they are not authorized to sue any woman who has an abortion, legal or not,” he added.

Contrary to Garland’s insistence that this provision of the law is “unprecedented,” Severino pointed to a slew of federal whistleblower statutes, including The False Claims Act, which allows “people to recover millions for uncovering and proving contractor fraud against the United States.”

Severino and others have also challenged the DOJ’s decision to move forward before private parities actually sued abortion providers or others facilitating the procedure in violation of the Heartbeat Act. 

“Instead of waiting to see if a Texas citizen will bring an enforcement action with enough proof of a violation, DOJ seeks to enjoin every person in the state from filing a suit against any abortion clinic at the front end, no matter how egregious or blatant the violation,” said Severino, criticizing this effort as a violation of the constitutionally protected right to due process.


Abortionist’s Claim

Just days after Severino raised these objections, Alan Braid, a physician in San Antonio, reported in a Washington Post opinion column that he had provided an abortion to a woman after the fetal heartbeat had been detected, triggering two lawsuits initiated by individuals outside the state.

One lawsuit was filed by a “former Arkansas lawyer, Oscar Stilley, who said he is on home confinement serving time after a tax-fraud conviction,” and sought to “test” the law, The Wall Street Journal reported. The second was filed by “an Illinois resident, who is described in his filing as a ‘pro-choice plaintiff,’” and is eager to “strike down”  the statute.

Pro-life leaders in Texas say that, for now at least, they lack sufficient evidence to confirm Braid’s self-reported violation of the Heartbeat Act, and so have yet to file suit against him.

It is not entirely clear how Braid’s announcement, and the two lawsuits it triggered, might complicate the state of Texas’ efforts to defend the Heartbeat Act.  

But Teresa Collett, a law professor at the University of St. Thomas, questioned whether either lawsuit would have much impact, “if there is reason to believe it is a friendly or collusive lawsuit filed by someone who wants the law struck down.”

For now, the DOJ and the state are preparing for their next day in court. Federal district Judge Robert Pitman, an Obama appointee, has scheduled an Oct. 1 hearing for the DOJ’s motion for injunctive relief. 

Ed Whelan, an influential constitutional scholar who blogs at National Review’s “Bench Memos,” predicted that Pitman would likely side with the DOJ in granting the injunction. But, noting the specific language of the Heartbeat Act, Whelan doubted whether a favorable ruling for the DOJ would make much difference in the short term.

According to the Heartbeat Act, he explained in a Sept. 15 post, Texas abortion doctors who violate the law will not receive liability protection “unless and until there is a final ruling from the Fifth Circuit (or Supreme Court) that affirms Pitman’s order.”


Impact of Dobbs

Collett, for her part, suggested that the outcome of the DOJ’s legal challenge could hinge on the U.S. Supreme Court’s decision in a major abortion case out of Mississippi, Dobbs v. Jackson Women’s Health Organization, with a landmark ruling expected by late June 2022.

“If I were the defendant in the DOJ case, I might ask the court to stay the proceedings,” said Collett, in the event there is a “major shift” in the high court’s jurisprudence on abortion. 

And that will be “the dilemma for courts” that are asked to take up abortion-related cases in the interim, she concluded.

“Do they stop [pro-life] laws from going into effect, or uphold them, pending a resolution of the Dobbs case?”