There’s much to admire in the Justice Department’s new lawsuit to bar enforcement of the nation’s most outrageous anti-abortion law. And, for me, kudos begin with the title: “United States of America v. The State of Texas.”
I teach two law school mainstays — Federal Jurisdiction and Constitutional Law. The Texas abortion statute, S.B. 8, is a masterwork in the evasion of much federal jurisdictional law. As the complaint explains, Texas’s private bounty hunter scheme “leverages the interplay of the doctrines of standing and sovereign immunity” to “stymie anyone who challenges the law in court.” But in the blitz to crush clearly established constitutional liberties, the state’s tacticians apparently forgot about the big dog itself – the United States.
Merrick Garland’s folks began their pleadings by noting “injunctive relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the U.S. in ensuring states respect the national compact.” Texas “cannot insulate its constitutional violations from judicial review” or sacrifice the “important federal authorities SB 8 impairs.” And, crucially, “the U.S. is not subject to the same jurisdictional hurdles that have impeded other litigants.”
As the Supreme Court held 60 years ago: “constitutional rights can neither be nullified openly and directly by state legislators, nor nullified indirectly by evasive schemes whether attempted ingeniously or ingenuously.” The complaint adds, “in ratifying the Constitution, States consented to suits brought by the Federal Government.”
America’s complaint also touches on the stunning injuries caused by Texas’ shuttering of abortion facilities. “One minor, who was raped by a family member, travelled eight hours from Galveston to Oklahoma to get an abortion.” Another patient, “facing violence at the hands of her husband, is attempting to leave Texas without her husband finding out.” Women are “forced to travel thousands of miles under harrowing circumstances in the middle of a COVID surge.”
The law also has “an extreme impact on the rights of women in Oklahoma, Kansas, Colorado Nevada and New Mexico.” Clinics in Oklahoma City and Tulsa have seen a 646% increase in Texas patients since the law went into effect. Texas residents now claim 50-75% of all appointments at Planned Parenthood’s Oklahoma centers. And most chilling, the U.S. asserts, a “majority of Texas patients simply are not able to travel out of state to obtain an abortion due to the high cost and their work, school, and family responsibilities.”
Rights guaranteed by Roe, therefore, “ring hollow every day for women in Texas.” If the scheme prevails, the complaint concludes, it will “become a model for action in other areas by other states.” So the United States means to stop it.
Texas leaders are beyond outraged that the national government has the audacity to stand in the way of their untethered assertions of power. Republican pols are the only ones that matter in the Lone Star State. No “constitutional compact” limits their heady prerogative. Dissenters – even teenage rape and incest victims – don’t count. We’ll tell you what’s right, what’s moral, what’s demanded — the theory goes. Shut up and do what you’re told.
We’re familiar with such surpassing Republican arrogance in North Carolina. We’re accustomed to being called on the carpet by Uncle Sam for crushing the dignity and opportunity of our citizens. When judges have put a stop to our tyrannies, lawmakers have whined and bayed at the moon. How dare anyone question their unyielding hegemony? But as U.S.A. v Texas shows, Republicans haven’t ended constitutional government in America. Not quite yet.
Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.