Three Thoughts on DOJ’s Texas Abortion Lawsuit

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U.S. Attorney General Merrick Garland attends a news conference at the Department of Justice in Washington, D.C., June 25, 2021. (Ken Cedeno/Reuters)

Ed Whelan has some good initial thoughts on the very odd Justice Department lawsuit against the Texas abortion law, specifically the fact that the complaint does not identify an actual statutory or other cause of action and that DOJ’s parens patriae legal theory would appear to give the federal government standing to sue to strike down any state law that violates the Constitution, regardless of whether other actors in our system would have standing to sue. Let me add three preliminary observations of my own, 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.

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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?

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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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