Thoughts on the DOJ’s abortion lawsuit against Texas

Last Thursday, the U.S. Department of Justice, on behalf of the United States, filed suit against Texas over the Texas Heartbeat Act. 

The complaint alleges that the Act has inflicted irreparable injury on the United States in two different respects. First, under a parens patriae theory, the complaint alleges that the Act “injures the United States by depriving women in Texas of their constitutional rights while seeking to prevent them from vindicating those rights in federal court.” (See pp. 15-16.) Second, the complaint alleges that the Act “unconstitutionally restricts the operations of the federal government” (see pp. 16-24)—in particular, the Department of Labor’s Job Corps Program (pp. 16-19), the Office of Refugee Resettlement (p. 19), the Bureau of Prisons (pp. 19-21), the Centers for Medicare and Medicaid Services (pp. 21-22), the Office of Personnel Management (pp. 22-23), and the Department of Defense (pp. 23-24).

The complaint presents three counts: “Supremacy Clause—Fourteenth Amendment” (pp. 24-25), “Preemption” (pp. 25-26), and “Violation of Intergovernmental Immunity” (p. 26).

At DOJ’s request, the case has been assigned to Judge Robert L. Pitman, the Obama appointee handling the litigation brought by abortion providers against the Act. (That litigation is now pending on appeal before the Fifth Circuit on jurisdictional questions.)

Some preliminary observations:

1. The complaint does not undertake to identify the specific causes of action that might underlie its counts. It instead asserts generically that the federal district court “has authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent equitable authority.” Whether and to what extent any of these sources actually creates a cause of action for a particular claim in DOJ’s complaint will likely be a central matter of dispute in the case.

I’ll briefly illustrate the point with respect to the complaint’s first count. As the Supreme Court made crystal clear just a few years ago (in Justice Scalia’s majority opinion in Armstrong v. Exceptional Child Center (2015)), the “Supremacy Clause is not the source of any federal rights and certainly does not create a cause of action.” (Emphasis added, citations omitted, and cleaned up.) Further, the Fourteenth Amendment does not itself create a cause of action but instead only gives Congress the power to enforce its provisions “by appropriate legislation.” So DOJ will need to establish that one of the other authorities it identifies confers a cause of action regarding the injury that it alleges here. It’s not at all clear that it will be able to do so.

2. The relief potentially available to DOJ would seem to differ considerably depending on whether it is aimed to address the federal government’s asserted parens patriae injury or the injury resulting from alleged interference with the federal government’s operations. In the latter case, it might well be enough (if the court were to agree with DOJ) to exempt the federal government’s operations from the application of the Act.

3. DOJ has not yet filed a motion for preliminary-injunctive relief. Once expedited briefing is complete on such a motion, it’s a safe bet that Judge Pitman will give DOJ whatever relief it requests. The real action will be in the Fifth Circuit, including on the threshold question whether to block Pitman’s order pending appeal.

4. One big-picture point: Nothing in DOJ’s claim to have a right to sue to redress its supposed parens patriae injury hinges on the private civil-enforcement provisions of the Act. Thus, if DOJ were to prevail, that would open the door wide to DOJ’s bringing all sorts of individual-rights constitutional claims against whatever state laws offend the current Administration. DOJs in Republican administrations would sue predominantly “blue” states over such matters as gun regulations and racial preferences, while DOJs in Democratic administrations would sue predominantly “red” states on behalf of liberal causes. The end result would be a dramatic escalation in the politicization of DOJ.

Let me add three more observations, specifically focusing on the portion of the complaint that asserts that the federal government has a right to sue because the Texas law interferes with federal programs.

First, the complaint offers a stark reminder of how many different ways there are, in spite of the Hyde Amendment, that the federal government finds to pay for abortions, or mandate that others do so. The list is lengthy:

Labor Department’s Job Corps, which requires contractors to carry health insurance that covers abortion.

Office of Refugee Resettlement, which “provides access to abortion services” to “unaccompanied children” (here, meaning teenage girls) in the country illegally.

Bureau of Prisons, which provides abortions to inmates.

Centers for Medicare and Medicaid Services, which mandates that states cover certain abortions through Medicaid.

Office of Personnel Management, which in covering federal employees “has entered into contracts with qualifying carriers that cover abortion procedures in permitted circumstances” under federal law.

Department of Defense, which provides abortions on its facilities.

Some of these are fairly narrow — the DOD, for example, is legally allowed to perform abortions only for rape, incest, or the life of the mother. Still, the complaint’s list offers a road map of potential congressional and executive-branch fights in the federal promotion of abortion.

Second, the government may be using the law’s interference with federal operations as a lever to enable it to file a broader lawsuit, but the case for granting emergency injunctive relief to the federal government is dubious. Recall: The structure of this law, in which enforcement can come only through private lawsuits in the Texas courts, means that nobody will be penalized unless and until a suit is filed. Now, critics of the law worry that it will have a chilling effect: Who will want to provide abortions, knowing that they could face ruinous civil damages claims? Who has pockets that deep? Well, here comes Merrick Garland and the Department of Justice to remind us that there is, in fact, somebody with pockets that deep: the federal government, which is presently debating adding $3.5 trillion to its budget and can clearly afford quite a few $10,000 penalties. Moreover, the odds of collecting in a suit against the feds would be steep for a number of reasons. Notably, nowhere in the complaint is there any claim (as were raised in the case the Supreme Court turned aside) that the feds will decline to provide the enumerated abortion services in fear of S.B. 8. It is hard to see how you get an injunction (or at least defend one on appeal) in that situation. Where is the irreparable harm?

Third, the fact that the Democrats are willing to turn the Justice Department, yet again, into a weapon against states passing abortion laws suggests that the aftermath of the Dobbs case — in the event that the Supreme Court overturns Roe v. Wade — will be neither Congress passing a law codifying Roe or banning abortion, nor the states regaining control of the issue, but a long campaign of massive federal resistance to state laws, from Democratic administrations, the bureaucracy, and Democratic Congresses.

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