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SB8 abortion law explained: why is the Justice Department suing Texas?

Last week the Supreme Court refused to outlaw new legislation that would utilise a legal loophole to make abortions illegal after six weeks in Texas.

Last week the Supreme Court refused to outlaw new legislation that would utilise a legal loophole to make abortions illegal after six weeks in Texas.

The Justice Department announced on Thursday that it will be suing the state of Texas in relation to the new six-week abortion ban, which the Biden administration argues is unconstitutional.

The unique structure of Senate Bill 8 (SB8) is specifically designed to circumvent previous rulings in relation to abortion rights and makes it almost impossible for abortion clinics to challenge the stringent new restrictions in court. The law could punish anyone found to be assisting a women in obtaining an abortion after six weeks with a minimum $10,000 fine.

Announcing the lawsuit on Thursday, Attorney General Merrick Garland slammed the “unprecedented” Texas abortion ban, which he claimed aims "to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible."

Why is the Justice Department challenging the Texas abortion law?

The Justice Department complaint argues that the state enacted the new law “in open defiance of the Constitution”. This echoed the sentiment of President Joe Biden who last week said that the Supreme Court decision to allow the law to stand “insults the rule of law.”

Garland has filed a 30-page lawsuit against Texas which accuses the Lone Star State of employing an “unprecedented scheme” to insulate the new law from usual legal challenges. The complaint asked the court to declare SB8 “invalid, null, and void,” and to prevent Texan authorities from enforcing it in any way.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland told a press conference on Thursday. “If it prevails, it may become a model for action in other areas, by other states and with respect to other constitutional rights and judicial precedents.”

What is Senate Bill 8?

For decades the precedent set by the 1973 Supreme Court case Roe v. Wade, which ruled that women should have unfettered abortion rights during the first trimester (12 weeks) of pregnancy. That ruling has remained a landmark case but the new law cuts that 12-week period in half.

The law is based on an interpretation of the ‘foetal heartbeat’ proposals, which state that an abortion should not be carried out once a heartbeat has been observed in the foetus. This can occur as early as six weeks into a pregnancy, hence the new law.

The Texas abortion ban gets around the precedent set by Roe v. Wade by outsourcing enforcement of the legislation onto private citizens. Private citizens will be able to file lawsuits against abortion providers and individuals who they believe to be breaking the law.

The claimants can collect $10,000 in damages for each case that they win, which has been criticised as a state-sanctioned bounty. Garland has said that he would fight any laws structured to “empower any private individual to infringe on another’s constitutionally protected rights in this way.”


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