Slate: “On Thursday, the Department of Justice filed a lawsuit against Texas’ S.B. 8, which bans abortion after six weeks with no exception for rape or incest. The DOJ’s intervention came a week after the Supreme Court refused to block the law by a 5–4 vote on account of “complex and novel” procedural questions. Because it represents the United States, the Justice Department has certain advantages over the private plaintiffs who brought the suit that failed to stop the law, including the ability to sue Texas directly. But it is unclear whether Attorney General Merrick Garland’s gambit will succeed—or hand SCOTUS an opportunity to further insulate S.B. 8 from judicial review….
Under the doctrines of preemption and intergovernmental immunity, a state cannot interfere with the duties of the federal government, including federal contractors. Yet S.B. 8 would prohibit the government from carrying out these programs within Texas wherever they facilitate abortion. So the Justice Department has a very strong argument against the measure insofar as it hampers the United States’ own obligations. As the lawsuit puts it, S.B. 8 constitutes “an unlawful direct regulation of the federal government” that seeks to illegally “interfere with and frustrate” its duties.ADVERTISEMENThttps://68ea4b78257a7205fb8a2f0b8df5a3ed.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
But these federal programs account for a narrow slice of abortion “abetting” in Texas. What about the millions of regular Texans whose rights are curtailed by S.B. 8? Here, the lawsuit argues that the United States can sue to protect every person’s 14th Amendment rights under the supremacy clause, which makes the Constitution supreme over state laws. According to the DOJ, the federal government may “vindicate its interest in ensuring that Texas respects its obligations under the Constitution.” The agency also argues that, to safeguard the right to abortion, courts may enjoin “the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8.””