Texas’ standing ban on abortion means states could lose the constitution: DOJ
The Justice Department on Monday called on the Supreme Court to suspend Texan’s law banning abortion after six weeks, arguing that if the law stood, it would set a precedent for states to essentially save any other court decision To put strength.
On the file, incumbent US solicitor General Brian H. Fletcher wrote that a lower court was “unjustified” in ruling that the Texas ban on abortion should remain in effect while it goes through the courts. The law should not be upheld, argued Fletcher, because it “allows Texas to continually set aside the precedents of this court and the constitutional rights of its citizens.”
Texas Republican Governor Greg Abbott signed the law in May banning abortions after six weeks (which many still don’t know they’re pregnant), and it went into effect September 1. According to Fletcher, the law effectively ended all abortions after six weeks in the state. But instead of letting the state enforce the ban, the law is designed so that the state represents individuals to sue anyone suspected of participating in an abortion. This means that even an ignorant passenger transporting a woman to a clinic where she had the procedure performed could be sued. If the lawsuit is successful, the plaintiff may be awarded a monetary award of “not less than” US $ 10,000 in legal damages per abortion, plus costs, attorney fees, and restraint.
Continuing this law, while directly clashing with other Supreme Court rulings such as Roe v. Wade, argued Fletcher, would set a dangerous precedent that could allow states to bypass the Supreme Court, and therefore the Constitution, on other matters.
“If, as Texas insists, courts cannot order the state itself or individual state officials or private parties who actually bring SB 8 lawsuits, then a state could effectively annul any constitutional decision by that court that it disagrees with,” by imposing sufficient punishment on legal regulation and delegating its enforcement to the general public, ”wrote Fletcher.
He then gave examples of Supreme Court decisions that states could theoretically annul, such as District of Columbia v. FEC, which allowed companies and unions to spend unlimited money on political campaigns for or against specific candidates.
The file reads:
“For example, a state could prohibit the possession of handguns in the home, Contra District of Columbia v. Heller, 554 US 570 (2008) or prohibit independent corporate campaigning, contra Citizens United v FEC, 558 US 310 (2010) and instruct its citizens to to demand high premiums for every firearm or advertisement. These laws would also violate the Constitution as interpreted by this court. But according to Texan theory, they could be enforced without prior judicial review, preventing the protected activity – and the effect of a successful constitutional defense in enforcement proceedings could be limited to that process alone. The district court rightly found that the ingenuity of the state does not allow it to overturn constitutional rights in this way. “
In other words, if Texas law applies, states could finish a final run for the Supreme Court by advocating citizens to enforce non-constitutional laws through lawsuits, as Texas law allows. However, according to Fletcher’s argument, the law is “clearly unconstitutional” and continuation would only “perpetuate the ongoing irreparable harm to thousands of Texas women denied their constitutional rights.”
Last month, the Supreme Court in a 5-4 ruling dismissed a separate case’s urgency motion to block the state’s ban on abortion. Biden called it “an unprecedented attack on the constitutional rights of a woman under Roe v. Wade, who have been the law of the country for nearly fifty years.”