The act, Senate Bill (SB) 8, requires abortion physicians to check for a pulse in the womb before carrying out an abortion. If there is a pulse, the abortion is illegal.
However, to comply with Supreme Court precedent that bars governments from unduly burdening abortion access, SB 8 does not use the power of the state for enforcement. Instead, it allows any Texan — other than a father that conceived the aborted child out of an act of rape or incest — to sue anybody besides the mother herself that performs or aids a post-heartbeat abortion.
The bill took effect September 1 after a group of abortion providers and counselors unsuccessfully petitioned the Supreme Court to intervene in their lawsuit and stop enforcement of the act.
SB 8 allows abortions in case of a medical emergency but does not lot allow the abortion of unborn children conceived out of rape or incest.
Calling it “a transparent effort to evade constitutional scrutiny,” the Biden administration argued in its original complaint that SB 8 violates the Constitution and prevents the federal government from aiding or paying for certain contractually obligated abortions.
“It takes little imagination to discern Texas’s goal — to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review,” the complaint reads.
“Because S.B. 8 does not contain an exception for cases of rape or incest, its terms purport to prohibit the federal government and its employees and agents from performing, funding, reimbursing, or facilitating abortions in such cases.”
According to the brief, federal law allows or requires the Department of Labor, Office of Refugee Resettlement, Bureau of Prisons, Centers for Medicare and Medicaid Services, Office of Personnel Management, and Department of Defense to provide abortions.
For example, Department of Labor policy requires contractors to ensure that enrollees in certain programs have access to “information and services related to abortion.”
The lawsuit also argues that even private citizens can count as arms of the government.
“Awarding the monetary relief that S.B. 8 authorizes — to plaintiffs who need not demonstrate any injury or other connection to the underlying abortion procedure — constitutes state activity designed to violate the Fourteenth Amendment rights of women in Texas,” the complaint reads.
“The Supreme Court has deemed individuals to be state actors where they exercise “powers traditionally exclusively reserved to the State.”
As such, the U.S. Department of Justice is asking the court to enjoin private citizens from suing violators of the law.
The administration is also seeking a declaratory judgment that SB 8 is invalid, null, and void, as well as “any and all other relief necessary to fully effectuate the injunction against SB 8’s enforcement.”
The State of Texas has not yet filed a response in court, but Governor Greg Abbott’s office released a statement in defense of SB 8.
“The most precious freedom is life itself. Texas passed a law that ensures that the life of every child with a heartbeat will be spared from the ravages of abortion,” the statement reads.
“Unfortunately, President Biden and his Administration are more interested in changing the national narrative from their disastrous Afghanistan evacuation and reckless open border policies instead of protecting the innocent unborn. We are confident that the courts will uphold and protect that right to life.”
Despite rejection at the Supreme Court, the lawsuit between Texas agencies and courts and a group of abortion providers is still in progress at the Fifth Circuit Court of Appeals.
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