Law & Government

The Justice Department May Have Found a Winning Argument Against the Texas Abortion Law

“The Supreme Court has repeatedly recognized the authority of the United seek equitable relief to vindicate various federal interests and constitutional guarantees.”


Senate Bill 8, the Texas anti-abortion law that went into effect this month, was expressly designed so that state officials could dodge accountability for the state's law in federal court. In a new legal filing, the U.S. Department of Justice has offered a potentially winning strategy for overcoming that legal ruse.

The Texas law seeks to avoid legal accountability for state officials by outsourcing the enforcement of the anti-abortion law to private actors. Under its terms, "any person" may sue "any person who…aids or abets the performance or inducement of abortion" and win a $10,000 bounty plus legal fees if the civil suit is successful. In the state's eyes, this means that no state official needs to answer in federal court since no state official is enforcing the state law.

The Justice Department has offered a different view. In an emergency motion for a temporary restraining order or preliminary injunction filed in United States v. Texas, the federal government stresses the many ways in which the Texas law "impermissibly regulates the Federal Government…and poses unlawful obstacles to the accomplishment of federal objectives." In other words, because federal sovereignty and federal interests are being harmed by the state, the federal government may lawfully sue the state over those injuries in federal court.

How does the Texas abortion law injure federal sovereignty and interests? For one thing, the state law undermines Section 1983 of Title 42 of the U.S. Code, a federal statute which says that state officials may be sued for constitutional rights violations. If you have been following the roiling national debate over qualified immunity, you have probably heard of Section 1983 since it is the law under which federal civil rights lawsuits are filed against abusive cops.

There is no question that banning pre-viability abortions, as the Texas law does, is flatly unconstitutional under existing Supreme Court precedent. What that means is that those parties impacted by the state law are entitled to seek legal recourse in federal court by filing Section 1983 lawsuits—except that the Texas law was specifically designed to block those parties from seeking that very recourse.

Forget abortion. Say a pro–gun control state legislature did the same thing. Namely, it passed a law banning handguns but then outsourced the law's enforcement to private gun control activists in an attempt to shield state officials from facing Section 1983 lawsuits over the state's blatant Second Amendment violation. Either way, the state's scheme would be a menace to both constitutional rights that have been clearly recognized by the Supreme Court and to congressionally authorized federal judicial action against those rights violations.

The Texas abortion law also runs afoul of a longstanding rule that says that states may not impose civil or criminal penalties on federal officials for carrying out their federal duties. That rule applies here because the Texas law, as the U.S. motion notes, "purports to prohibit federal personnel and contractors from carrying out their federal obligations to assist in providing access to abortion-related services to persons in the care and custody of federal agencies." Likewise, the law "purports to impede the Department of Defense's implementation of its statutory obligation to provide such medical services [abortion] to service members."

These are not far-fetched legal arguments. As the federal government's motion points out, "the Supreme Court has repeatedly recognized the authority of the United States, even without an express statutory cause of action, to seek equitable relief to vindicate various federal interests and constitutional guarantees." Such federal arguments have prevailed before and they may prevail here again.