On Thursday, the Department of Justice, led by Attorney General Merrick Garland, sued Texas over its controversial law SB 8, which effectively limits abortions to the first six weeks of pregnancy.
The Texas “heartbeat bill,” aptly named because the heartbeat of the child begins at approximately six weeks, is one of several similarly situated laws in the nation.
The Department of Justice’s foray into Texas politics is remarkably ill-timed here and an example of how a DOJ should not function in practical terms.
The only reason the DOJ sued Texas on Thursday is that the political and judicial system has been working, for better or worse, exactly as it was designed to work.
Let’s recap the past week on the Texas SB 8 issue:
Texas Gov. Greg Abbott signed SB 8 into law. It became effective Sept. 1.
As the hours dwindled until the bill became law, the U.S. Supreme Court chose not to act on requests for emergency injunctive relief to stop SB 8 from becoming law. Finally, a day later, the court issued a very brief order that allowed it to take effect. So everyone had their swing at bat and the issue was resolved for the time being. Or so we thought.
Critics point out that the Texas law, as it is designed, could lead to frivolous lawsuits because of its somewhat bizarre public enforcement mechanism that empowers private citizens to sue anyone perceived to be helping patients obtain abortions.
If this spate of lawsuits happens, it will again be left first to the state and then federal courts to determine whether SB 8 is legal on paper and in practice.
That SB 8 was drafted in a way that frustrates judicial review before the bill becomes law is an issue that will certainly draw further attention from the highest court in the land.
But the DOJ is essentially skipping the line as a way for the executive branch of government to bow to national and international public pressure over SB 8, which is not an optimal process flow here.
What seems to be lost on many here is that the Supreme Court of the United States already has this covered.
The court agreed at the beginning of the summer to hear a Mississippi case that will fundamentally revisit abortion law in the United States.
There is no way to underestimate how big that case is going to be. It will ultimately determine if the Mississippi law in issue, Texas’ SB 8 and similar laws and bills across the nation are constitutional.
There is ample opportunity for the DOJ to file an amicus brief in the upcoming Supreme Court case but ultimately, the future of abortion for 2021-2022 and beyond needs to be settled by the Supreme Court, which is exactly why it granted certiorari to the Mississippi case.
No matter which side of the Texas case and the overall abortion issue you find yourself on, if you trust the judicial process you have to look closely at this week’s move by the DOJ and wonder about its wisdom in the long run.
While it may serve to grant a temporary reprieve from SB 8 in Texas, what impact it might have on the much larger and far more impactful Supreme Court decision coming this term remains to be seen.
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