Department of justice

Don’t Go Up in a Balloon over the Minor Texas Abortion Case Ruling

September 17, 2021 by Andrew C. McCarthy Leave a Comment

There seems to be significant misunderstanding about an order issued by federal district judge Robert Pitman yesterday in the Justice Department’s lawsuit against Texas in connection with the Fetal Heartbeat Law (a.k.a “abortion ban”).

To be clear, Judge Pitman did not, as some are suggesting, rule against the merits of the Justice Department’s complaint (which relies on a dubious interpretation of the 14th Amendment, as Ed Whelan explains here).

Here’s what happened. The Biden Justice Department’s suit seeks a preliminary injunction which would suspend the law until the court can decide the merits of the case. That calls for a preliminary injunction hearing, at which the DOJ would have to show (among other things) a likelihood of success when the case is fully submitted.

Not content with that, so alarmed is the Biden administration by “the near-unavailability of constitutionally permitted abortions in Texas since [the law] went into effect,” that the DOJ decided to seek “emergency relief” — a temporary restraining order (TRO), which would suspend the law immediately, based on little more than the federal government’s filing of its lawsuit.

#inline-newsletter-nloptin-6144fb1db8869 .inline-newsletter-subscribe__cta label {
font-size: 1.2rem;

line-height: 1.5rem;

color: #000000;
}

#inline-newsletter-nloptin-6144fb1db8869 .inline-newsletter-subscribe__cta p {
font-size: 1.05rem;

line-height: 1.45rem;

color: #000000;
}

#inline-newsletter-nloptin-6144fb1db8869 {
background-color: #ffffff;

border-width: 1px;

border-color: #cccccc;
}

#inline-newsletter-nloptin-6144fb1db8869 .inline-newsletter-subscribe__email-submit {
border-color: #e92131;
background-color: #e92131;

color: #ffffff;
}

#inline-newsletter-nloptin-6144fb1db8b0d .inline-newsletter-subscribe__cta label {
font-size: 1.5rem;

line-height: 1.7rem;

color: #000000;
}

#inline-newsletter-nloptin-6144fb1db8b0d .inline-newsletter-subscribe__cta p {
font-size: 1.05rem;

line-height: 1.45rem;

color: #000000;
}

#inline-newsletter-nloptin-6144fb1db8b0d {
background-color: #ffffff;

border-width: 1px;

}

#inline-newsletter-nloptin-6144fb1db8b0d .inline-newsletter-subscribe__email-submit {
border-color: #eba605;
background-color: #eba605;

color: #ffffff;
}

#inline-newsletter-nloptin-6144fb1db8bb4 .inline-newsletter-subscribe__cta label {
font-size: 1.3rem;

line-height: 1.5rem;

color: #dd9933;
}

#inline-newsletter-nloptin-6144fb1db8bb4 .inline-newsletter-subscribe__cta p {
font-size: 1.05rem;

line-height: 1.5rem;

color: #2d2d2d;
}

#inline-newsletter-nloptin-6144fb1db8bb4 {
background-color: #ffffff;

border-width: 1px;

border-color: #999999;
}

#inline-newsletter-nloptin-6144fb1db8bb4 .inline-newsletter-subscribe__email-submit {
border-color: #dd9933;
background-color: #dd9933;

color: #ffffff;
}

#inline-newsletter-nloptin-6144fb1db8c44 .inline-newsletter-subscribe__cta label {
font-size: 1.5rem;

line-height: 1.7rem;

color: #0f733c;
}

#inline-newsletter-nloptin-6144fb1db8c44 .inline-newsletter-subscribe__cta p {
font-size: 1.05rem;

line-height: 1.45rem;

color: #2d2d2d;
}

#inline-newsletter-nloptin-6144fb1db8c44 {
background-color: #ffffff;

border-width: 1px;

border-color: #cccccc;
}

#inline-newsletter-nloptin-6144fb1db8c44 .inline-newsletter-subscribe__email-submit {
border-color: #0f733c;
background-color: #0f733c;

color: #ffffff;
}

Texas does not believe there is any emergency, but agreed to negotiate an expedited schedule on the motion for a TRO or preliminary injunction. Based on these negotiations, Judge Pitman issued a scheduling order: Texas is to submit its brief by September 29, and the DOJ to respond by October 1, before the hearing the court has scheduled for that day. By court standards, that is fast.

Still, the DOJ was not satisfied. It submitted an “emergency motion” insisting that the court should issue a TRO. It proposed that Texas should file a brief by noon on Monday (September 20), and that the court should then hold a TRO hearing the following day. By the DOJ’s lights, it would win the TRO hearing, and then — with the law suspended — the court could set a briefing schedule for the preliminary injunction. (And, of course, no need to do that on an expedited basis if the court has issued a TRO suspending the law — take all the time you need!)

It was this latter emergency motion that Judge Pitman denied. All this denial means is that he is sticking with his original expedited schedule. His short order from yesterday opines that “this case presents complex, important questions of law that merit a full opportunity for the parties to present their positions to the Court.” Pitman expressed no view on whether there should be an injunction against the operation of the law, nor did he in any way signal how he may come out on the merits.

Most observers believe Pitman, an Obama appointee, will be inclined to rule in the DOJ’s favor. I still think so. He was right not to allow the Justice Department to bully him into picking up the pace. But yesterday’s order was just on a minor matter of timing and the efficiency of conducting a proceeding that, while prompt, gives each side adequate time to brief significant issues. It is not a major victory for Texas or a sign that the court will rule against the DOJ on the important questions.

Three Thoughts on DOJ’s Texas Abortion Lawsuit

September 15, 2021 by Dan McLaughlin Leave a Comment

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.

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?

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.