DOJ Files Emergency Motion to Stop Texas Abortion Ban, with Support from Democratic Attorneys General

“[Texas’s Senate Bill 8] is un-American. This is undemocratic. This does not comport in any way, shape or form with the rule of law as we know it. It’s an incredibly dangerous and slippery slope for this country to go down.”

—Massachusetts Attorney General Maura Healey

Update Wednesday, Sept. 15, at 1 p.m. PT: On Tuesday, September 14, the Department of Justice filed a motion for a temporary restraining order or preliminary injunction to enjoin enforcement of SB 8. On Wednesday, 24 state attorneys general filed an amicus curiae brief in support of the Justice Department’s position.

Massachusetts Attorney General Maura Healey held a press conference on the filing Wednesday afternoon. She was joined by New Mexico’s Attorney General Hector Balderus and Planned Parenthood of Massachusetts Executive Director Dr. Jennifer Childs-Roshak.

AG Healey said, “I am filing an amicus brief to defend access to abortion for Texans and people across the country. Texas is deputizing vigilantes to force people into pregnancy. 24 AGs will not stand by while extremist politicians trample on the Constitution and basic human rights. We argue the Texas abortion ban hails from a vicious legacy—prejudiced state officials attempting to avoid complying with Supreme Court rulings that protect the rights of people of color, women, and LGBTQ+ people. This law makes a mockery of our Constitution.”


On Thursday, September 9, U.S. Attorney General Merrick Garland filed a lawsuit against Texas, seeking to block S.B. 8—the state’s newly-enacted abortion ban. S.B. 8 bans virtually all abortions, with no exceptions for rape or incest, and empowers private citizens to sue anyone who helps a woman obtain an abortion, rewarding them a $10,000 bounty plus attorney fees if they win a case. 

On a 5–4 vote, the Supreme Court allowed S.B. 8 to take effect on September 1, ruling on procedural grounds while explicitly denying their decision was based on any conclusion about the constitutionality of the Texas law. As a result of S.B. 8, reproductive healthcare providers in Texas have ceased offering abortion services after six weeks of pregnancy. Texans now have to go out of state to obtain most abortion healthcare, requiring them to travel over 200 miles farther each way, according to the Guttmacher Institute.

“The act is clearly unconstitutional under long-standing Supreme Court precedent,” said U.S. Attorney General Merrick Garland at a press conference announcing the lawsuit. “The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible,” said Garland.

In the lawsuit, the Justice Department argues that S.B. 8 clearly violates Roe v. Wade and Casey v. Planned Parenthood, which bar states from infringing on a person’s 14th Amendment rights to liberty and privacy, and also violates Article VI of the Constitution—the Supremacy Clause—which establishes that the U.S. Constitution and federal laws take precedence over state laws and constitutions.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party should fear,” continued Garland. “[The] United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”

The lawsuit seeks a permanent and preliminary injunction prohibiting enforcement of the statute against the state of Texas—including against the state’s officers, employees and agents, and private parties it has effectively deputized who would bring suit under S.B. 8.

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AG Maura Healey. (Wikimedia Commons)

Ms. magazine spoke with Massachusetts Attorney General Maura Healey about S.B. 8, its impact and what state attorneys general plan to do in response. Healey is co-chair of the Democratic State Attorneys General Association.


Carrie Baker: What do you think about the Texas abortion ban?

Maura Healey: It is unprecedented for a state government to deputize private individuals to infringe on other people’s rights. That’s what the Texas law does. Not only did they effectively render Roe meaningless in the state of Texas, they also allowed an entirely new legal construct—one of vigilantism. One where bounty hunters are deputized to go out there and enforce laws. That’s never happened before in our country. What a terrible thing. That’s not how the rule of law works.

And I just want to say that, yes, of course, they do it in the context of women. This is the one area where they are willing to say it is okay for individuals to be able to go out and be the prosecutor, judge and jury on somebody else’s individual rights. It’s only in the context of women and reproductive healthcare and abortion. Can you imagine them doing this in the context of guns? Or environmental laws? Or civil rights laws?” 


“It’s only in the context of women and reproductive healthcare and abortion. Can you imagine them doing this in the context of guns? Or environmental laws? Or civil rights laws?”


Baker: What can Democratic state attorneys general do to fight the Texas abortion ban?

Healey: You’re going to see a lot of support from state officials—states weighing in in support of what the Justice Department has filed. You may even see states bringing their own direct actions because you have states that are now directly affected by what Texas has done with so many women coming over the border, leaving Texas to go get healthcare elsewhere. 

Democratic AGs have long been at the forefront of defending women’s access to healthcare. It’s really, really important to many of us. You will see us act in ways to protect Roe and to fight for women’s access to healthcare. That could take the form of amici support for the Justice Department lawsuit or separate filings in courts.

Baker: What is the impact of the Texas abortion ban on other states?

Healey: Texas women are now going to Colorado, New Mexico, Nevada, California, Oregon. Women from those states are going to be denied access to abortion because providers are full up with Texas patients. It’s going to delay access to abortion. What could have been a medication abortion becomes surgical. In certain states where the state pays, then that’s also a cost to the state. 

S.B. 8 has the potential of interfering with women’s constitutional rights to access abortion in other states, as well as potential harm to the state in burdening already limited resources in some instances. It is appalling the Supreme Court allowed this to happen and the Fifth Circuit denied the opportunity to even have a preliminary injunction hearing on this.

The other thing I’d point out too is that the people who are going to be most impacted by this are Black, Latina, Indigenous and low-income women. Texas has some of the highest maternal mortality rates in the country to begin with, particularly for women of color. And now as we speak, this law is forcing people into pregnancy. 

Baker: The same week S.B. 8 went into effect, the Texas legislature passed a voter suppression bill. Is there a connection?

Healey: There is a connection between abortion rights and voting rights. This is how we got here in the first place. Voter suppression and interference with the freedom to vote.

It’s no coincidence that Texas also passed laws that really limit the freedom to vote the same week S.B. 8 went into effect. These attacks on healthcare and voting are so inextricably tied together. The states that are banning abortions are also voter suppression states. These politicians are waging the same war that their Jim Crow forefathers waged—disenfranchising, controlling, undermining the health of their own residents and attacking women’s rights. In what other context are a bunch of elected officials giving up their power and saying, we’re not going to enforce the laws, we’re going to give that authority to private citizens.


“These attacks on healthcare and voting are so inextricably tied together. … These politicians are waging the same war that their Jim Crow forefathers waged—disenfranchising, controlling, undermining the health of their own residents and attacking women’s rights.


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A NYC voting rights march in December 2011. (Michael Fleshman / Flickr)

Baker: Absolutely. It seems like they’re trying to do an end run around the U.S. Constitution and disregarding the rule of law to achieve their ends. But a lot of people are saying that the dog has caught the car. Could this legal strategy backfire on them?

Healey: Well, I sure hope that courts allow these matters to be fully briefed and heard, and that the courts think about the implications of this kind of construct. This is un-American. This is undemocratic. This does not comport in any way, shape or form with the rule of law as we know it. It’s an incredibly dangerous and slippery slope for this country to go down, if we allow this kind of vigilante justice, defined by laws and policies that actually don’t reflect the will of the majority of the American people. 

Baker: What should we do to fight back? 

Healey: We need Congress to step in and address threats to abortion access in Texas and across this country by passing the Women’s Health Protection Act, which would protect the right to access abortion care in all 50 states. 

We also need action on federal voting rights. We have a Supreme Court that was essentially stolen through the workings of Mitch McConnell and we have all these Republican-majority gerrymandered districts and states around the country that are acting in ways that are undemocratic. I mean 70 percent of Americans support Roe v. Wade, yet we end up in this situation where we have S.B. 8 and then the specter of 20 other states potentially looking to do the same thing. 

People need to get engaged. Demand accountability from your elected officials at the local, state and federal level. I think stories are really powerful. Put a face on what this actually means. Imagine if you had not been able to get an abortion. That’s the case right now for women in Texas. We have to show them support. We have their United States Department of Justice fighting for them, Democratic attorneys general fighting for them, and you will have members of Congress looking to push and advocate supportive legislation to fight for them. 

Baker: Are you hopeful?

Healey: A lot of incredible advocacy organizations and provider networks are looking to make abortion available. It’s going to take an effort and a groundswell, but I feel like this is a really catalytic event. This is a really big deal what just happened. I’m so heartened to see the Justice Department file, because it now gives us an opportunity to present this case in a different way, for what it really is. 


“I’m so heartened to see the Justice Department file, because it now gives us an opportunity to present this case in a different way, for what it really is.


Baker: When you say, “catalytic,” what do you mean by that?

Healey: The amount of anger and outrage I’ve heard from women and men around the country that I’ve spoken with in recent days is something I haven’t seen before. I think providers and reproductive rights organizations anticipated this, but I’m not sure that it was on the radar of the American public. Now it is. I think everybody is waking up.

Baker: What do you think will happen with the Justice Department lawsuit?

Healey: I am hopeful that with actual due process and actual briefing and an actual hearing, there will be an opportunity for both the Fifth Circuit and the Supreme Court to understand and appreciate the implications of what they have done to date.

Baker: There’s an on-the-ground campaign to inform people about how they can order abortion pills online through groups like Aid Access, which is a physician-supervised telemedicine abortion service located outside of the country. Do you have any comment on that?

Healey: In the face of what has happened, I support all those who are working hard to ensure that women have access to safe abortion. 

For more information about how to access abortion pills online, go to the Plan C Guide to Abortion Pills.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Chair of American Studies and a professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.