Texas sued by justice department over ‘clearly unconstitutional’ abortion ban

The Biden administration on Thursday sued Texas over the state’s extreme abortion law, which amounts to a near total ban on abortion, calling the law “clearly unconstitutional”.

The US attorney general, Merrick Garland, said the law that went into effect last week after the supreme court refused to block it and bans almost all abortions in the state was one “all Americans should fear”.

Senate Bill 8, pushed through by Texas’s Republican-dominated legislature, bans abortion once embryonic cardiac activity is detected, which is around six weeks. Most women are not aware they are pregnant as early as that time.

The justice department decided to argue that the law, which offers no exceptions for rape or incest, “illegally interferes with federal interests”, the Wall Street Journal first reported.

On Monday Garland said the justice department would “protect those seeking to obtain or provide reproductive health services”, under a federal law known as the Freedom of Access to Clinic Entrances.

Garland said that law would be enforced “in order to protect the constitutional rights of women and other persons, including access to an abortion”.

The Texas law incentivizes any private citizen to sue an abortion provider or anyone deemed to have helped a women get an abortion contravening the law. It came into effect on 1 September, and survived an emergency appeal to the supreme court, which voted 5-4 to allow the law to remain in force.

On Thursday, when announcing the lawsuit, Garland said: “The act is clearly unconstitutional” and said that it failed to give women seeking an abortion their constitutional right “at the very moment they need it”.

And he added that the “kind of scheme” that Texas has devised and other states want to follow, where the public enforces the law as a way to avoid legal challenge, and allows individuals to sue abortion providers or those helping a woman obtain the service, was designed to “nullify the constitution”.

Joe Biden condemned the new law and reaffirmed the White House’s support for abortion rights. “This extreme Texas law blatantly violates the constitutional right established under Roe v Wade and upheld as a precedent for nearly half a century,” Biden said in a statement.

The Biden administration has since been under pressure to act, with Democrats on the House judiciary committee writing to Garland on Tuesday, although many experts believe that winning the lawsuit will be a challenge for the federal government.

“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,” wrote the Democratic members of Congress, who include Pramila Jayapal, representative for Washington, and Val Demings, from Florida.

The Texas law is the strictest legislation enacted against abortion rights in the United States since the supreme court’s landmark Roe v Wade decision in 1973. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

Abortion providers have said the law will probably force many abortion clinics in Texas to ultimately close. Women’s rights advocates fear the conservative-dominated supreme court’s lack of action over the law could signal the start of the unravelling of Roe v Wade.

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