Department of Justice Asks Judge to Block Enforcement of Texas Abortion Ban

On September 9, the Department of Justice sued the state of Texas over a new law that bans abortions after six weeks. Now, on Tuesday, the department asked a federal judge to grant a temporary restraining order, which would prevent Texas from enforcing the law.

In this emergency motion, the Justice Department argues, “The State of Texas adopted S.B. 8 to prevent women from exercising their constitutional rights.”

According to Abigail Aiken, PhD, MD, MPH, associate professor of public affairs at the University of Texas at Austin, from the Justice Department’s viewpoint, Texas’ law, called S.B. 8, is indeed unconstitutional.

“We have a constitutionally protected right in this country to choose an abortion up to the point of viability [approximately 24 weeks], and that was established by Supreme Court case for Roe v. Wade in 1973,” Aiken tells Verywell.

But on September 1, the Supreme Court voted 5 to 4 to decline a look at this case. “So I think the Department of Justice feels that it’s their role to step in, to examine the constitutionality of the law, and then to challenge it,” Aiken says.

Unlike other abortion cases, where clinical providers of abortion were allowed to challenge a restrictive abortion ban by suing government officials, the law is significant because citizens will enforce it. “It lends this private standing to citizens,” she says.

Citizens themselves are incentivized to sue clinics and other people who are in violation. “Texas has just granted the right to sue anybody,” Aiken says. “And what’s more, they’ve actually included what is being called a bounty, which is the idea that if you bring this lawsuit and you’re successful, there’s money that you’re going to get for bringing the suit.” If successful, the reward is $10,000.

Because citizens are in charge of enforcement, legal challenges from providers can be tricky.

Is the Law Currently in Effect? 

Despite being challenged by the Department of Justice, the law is still in effect, according to Rachel Rebouché, JD, LLM, professor of law at Temple University’s School of Law. 

However, in some counties, such as Travis County, abortion clinics have temporary protections. “Planned Parenthood sued in state courts and now a couple of counties like Travis County entered a temporary injunction that said providers cannot be sued while we figure out this litigation,” Rebouché tells Verywell.

This means that this temporary injunction only applies to Travis County and is not statewide, Rebouché adds. Although providers cannot be sued during the injunction, abortions are still not allowed after six weeks.

The courts have yet to grant the Justice Department a temporary injunction that would halt the enforcement of S.B. 8.

How Successful Will the Case Be? 

It’s difficult to determine whether the Justice Department’s overall case will be successful due to its complexity. According to Rebouché, the Department of Justice has little evidence to support their claim that they have been harmed because no one has enforced the law or has been sued.

“A court could say, who’s been harmed? How have you been harmed? The argument is a little too abstract,” Rebouché explains. 

Ultimately, the courts will analyze whether Texas’ abortion ban is constitutional. “How the process will play out and the timeline, I think we have to watch this space on,” Aiken says. 

Restricting Access

S.B. 8 is not Texas’ first attempt at an abortion restriction. For years, Texas has introduced and implemented a flurry of laws that forced abortion clinics to close and have removed Medicaid and health insurance plans as an option for abortion coverage.

These laws have created barriers to abortion access for all women in Texas. The burden falls especially hard on low-income women and women from marginalized identities.

“People are no longer near a clinic in their community, requiring unnecessary testing and visits to the clinic multiple visits with waiting periods that are not medically warranted,” Aiken says.

During the pandemic, as a result of state policies limiting in-clinic services, the demand for self-managed, medical abortion outside the formal healthcare system increased by 27%. Research shows that a 47-mile increase in distance to the nearest clinic was significantly associated with a 41% increase in requests for use of telemedicine services to access self-managed abortions.

This research foreshadows what could happen when access to in-clinic abortions is restricted. Aiken shares that if the Department of Justice is unsuccessful in winning the case, women may resort to telehealth for abortion medication.

Services like Aid Access, a nonprofit organization, provide access to medical abortions through telehealth consultations and mailed abortion pills. The initiative is dedicated to making abortion services accessible where local services are not available. Aid Access ships abortion pills through the U.S., including Texas.

“These laws that have been accumulating have really reduced the right to choose abortion for a lot of folks in Texas,” Aiken says. “So I see Senate bill eight as a continuation of this history that we have at this point in Texas, of trying to remove the rights of people who have the fewest resources and who are the most marginalized.”