The Department of Justice announced yesterday that it has filed suit in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. The complaint (full text) in United States v. State of Texas, (WD TX, filed 9/9/2021), contends:
Texas enacted S.B. 8 in open defiance of the Constitution.... Because S.B. 8 clearly violates the Constitution, Texas adopted an unprecedented scheme “to insulate the State from responsibility”... by making the statute harder to challenge in court....
The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.
The complaint contends that state action is present, even though the statute relies on private enforcement:
[W]hile Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.” ...
Under the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution.
The complaint also alleges a more direct impact on the federal government:
S.B. 8 exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion-related services but refuse to do so to avoid liability under S.B. 8.
Attorney General Garland also delivered remarks (full text) announcing the lawsuit. Dallas Morning News has additional background and reactions.
