The U.S. Department of Justice (DOJ) has announced the filing of a lawsuit in federal court in Austin, Texas, seeking to have that state’s heartbeat abortion ban declared unconstitutional. Attorney General Merrick Garland held a press conference on September 9 where he charged that the Texas law is “clearly unconstitutional under longstanding Supreme Court precedent.”
The Texas law went into effect on September 1 despite unsuccessful attempts by the abortion industry to block it, including an emergency request that was turned away by the U.S. Supreme Court. The law bans most abortions after a fetal heartbeat is detected – usually at about 6 to 8 weeks gestation – except in a “medical emergency.”
The abortion industry’s lawsuit is still proceeding in the federal courts, but the Biden administration and the Department of Justice promised to get involved after the Supreme Court refused to block the Texas law.
In addition to allegations that the Texas law violates Roe v. Wade and Planned Parenthood v. Casey, the DOJ lawsuit also claims the new law prevents the federal government from operating several of its programs in Texas that include abortion payments or assistance.
In addition to asking the court to declare the Texas law unconstitutional, the federal government also asks the court to issue an injunction against every state official or agent of the state government who might play a role in enforcing the heartbeat law. Since the DOJ also argues that the law makes any citizen who brings a lawsuit to enforce the heartbeat ban an “agent” of the state, DOJ’s request apparently seeks an injunction against every man, woman and child in the state of Texas.
It’s unclear whether this Texas case will be decided before the Supreme Court hears and decides the constitutionality of the Mississippi 15-week abortion ban in Dobbs v. Jackson Women’s Health Organization, which the justices agreed to hear last June but hasn’t yet been scheduled for oral argument.
It’s also not clear whether this case is much different than the previous lawsuit brought by the abortion industry. In order to obtain what it seeks, the federal government has to identify a proper defendant against whom the court can grant appropriate relief. Since no Texas official is authorized to enforce the act, the DOJ’s lawsuit may suffer the same fate as the previous one.
That doesn’t mean that this law will never be declared unconstitutional. But the proper way for the abortion industry to challenge the law is to wait until an abortionist is sued, and then raise the constitutional issues as a defense. But Planned Parenthood and other abortion sellers are unwilling to risk that, since they’re used to getting their way before abortion laws go into effect.
And while everyone’s attention is focused on the federal courts, something interesting is happening in the court of public opinion. In its most recent poll released on September 7, Rasmussen Reports found that a plurality of likely voters in the U.S. supported the Texas law, by a margin of 46% to 43%.
That’s an astounding result, given that the mainstream media continually offer up misleading polls that ask people whether they support Roe v. Wade, which typically results in a 60%-30% result in favor of keeping Roe intact. Those polls don’t usually explain that Roe, and the companion case decided along with it, Doe v. Bolton, allow abortion on demand for the entire nine months of pregnancy.
The fact that so many likely voters, when offered a concrete example of a law that prohibits abortion after a heartbeat is detected, support that type of law is cause for celebration. The message is getting through. Winning the hearts and minds of Americans on this issue is just as important as winning legal victories.
Photo from Shutterstock.