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Biden Administration Prepares to Sue Texas Over Abortion Law
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© Reginald Mathalone/NurPhoto/Zuma PressWASHINGTON—The Biden administration is preparing to sue Texas over its new law banning most abortions, people familiar with the matter said, an action that would set off a federal-state clash at a time when the future of abortion rights becomes an ever-more-pressing question before the courts.
The Justice Department could file a lawsuit as soon as Thursday, the people said, adding that the timing could be pushed back. The Biden administration has faced pressure from Democrats and abortion-rights groups to take action to stop the Texas restrictions after the Supreme Court last week allowed them to take effect.
Attorney General Merrick Garland said Monday that the Justice Department was urgently exploring all of its options, which legal experts said could include attempting to strip federal funding and trying to determine whether there are federal facilities within the state that could provide abortions. Those experts warned, however, that novel provisions in the law, which prohibits most abortions after about six weeks of pregnancy, could make it harder for the federal government to prevail in a lawsuit.
In writing the Texas Heartbeat Act, known as SB 8, lawmakers assigned enforcement to private parties giving them an incentive by authorizing damages of $10,000 or more if they successfully sued a defendant they accused of performing or aiding in an abortion. The law puts the enforcement powers in the hands of private citizens, rather than state or local officials, leaving its opponents without obvious individuals to sue.
The Justice Department is expected to pursue an argument that the Texas law illegally interferes with federal interests, one of the people said. The precise nature of those arguments couldn’t immediately be learned.
A Justice Department spokesman declined to comment. A White House spokesman didn’t respond to a request for comment. A spokeswoman for Texas Gov. Greg Abbott, who signed the law in May, didn’t immediately respond to a request for comment.
President Biden last week pledged a “whole-of-government effort” to respond to the Supreme Court’s order allowing the Texas law to stand, and said he asked the Justice Department to explore ways to challenge it.
House Speaker Nancy Pelosi (D., Calif.) said the chamber would vote later this month on legislation to protect abortion rights by banning restrictions before fetal viability. The legislation is unlikely to pass the evenly divided Senate, where it would need 60 votes. Senate Majority Leader Chuck Schumer (D., N.Y.) hasn’t announced a pending vote.
Other Democrats in Congress this week urged Mr. Garland to prosecute Texas residents who try under the new law to sue women seeking abortions.
“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” Democrats on the House Judiciary Committee said in a letter to Mr. Garland.
Some abortion opponents and Republican lawmakers have hailed the law as a model for reversing the viability standard established by Roe v. Wade and subsequent Supreme Court decisions. “The Supreme Court just let Texas’s pro-life law go into effect, saving countless innocent lives,” tweeted Sen. Tom Cotton (R., Ark.), who is seen as a potential 2024 presidential candidate. “Why stop there? The Court should let every state set its own abortion laws by overturning Roe v Wade.”
The Justice Department has previously said only that it would be stepping up prosecutions of people who injure or intimidate abortion-clinic patients and employees under a federal law known as the 1994 Freedom of Access to Clinic Entrances Act, a statute that has been described as spottily enforced in the past. Mr. Garland said Monday that the department had reached out to FBI officials and federal prosecutors across Texas to discuss how to enforce that law.
The Texas abortion law sets no limit on how much money those who sue to challenge abortions can recover. If they prevail, they can also demand that the losing party pay their legal bills. If they lose in court and their case is dismissed, they owe the defendant nothing.
The law permits several lawsuits to be filed by different individuals over a single abortion. Once a claimant collects damages, though, the others suing may not collect more money from the same defendant for the same violation.
In allowing the Texas law to take effect, the Supreme Court didn’t rule on the measure’s constitutionality. A new lawsuit by the Justice Department could join legal challenges on the state level that seek to give courts a better opportunity to rule on the ban’s validity.
In its next session, the Supreme Court is already slated to rule on Mississippi’s law banning most abortions after 15 weeks, with the state arguing for an abolition of federal abortion rights. Lower federal courts have blocked that law for violating Supreme Court precedent. A ruling in that case is expected by next summer.
Write to Sadie Gurman at sadie.gurman@wsj.com
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