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October 27, 2021

ABA asks Supreme Court to let federal government sue Texas for unconstitutional abortion ban

WASHINGTON, Oct. 27, 2021 – The American Bar Association filed an amicus curiae brief today with the U.S. Supreme Court, asking the justices to allow the federal government to bring suit in federal court to hold Texas accountable for asserted constitutional violations in the state’s recently enacted abortion law that bans most abortions after six weeks and makes no exception for pregnancies resulting from incest or rape.

The amicus brief contends the Texas law, known as S.B. 8, unlawfully seeks to deny federal judicial review and federal executive enforcement of the United States Constitution and disregards court precedents holding that the Constitution protects the right to abortion until the point of fetal viability.

“Consistent with its mission and its policy, the ABA files this brief to support the federal government’s ability to hold Texas accountable for its unconstitutional acts and to ensure continuing access to the courts to protect fundamental constitutional rights,” the brief said.

The brief comes in the case of United States of America v. State of Texas, et al., involving the Texas statute, signed into law by Gov. Greg Abbott on May 19. The Texas law was crafted to attempt to prevent judicial review. The law prohibits state officials from enforcing it and allows private individuals to sue anyone who performs the procedure or “aids and abets” it. The law provides that plaintiffs can collect at least $10,000 in statutory damages and recover their legal fees if they win in court.

On Sept. 1, the Supreme Court refused to block the law, but the majority decision stressed that the court was not ruling on the law’s constitutionality. Then, on Oct. 22, it again left the law in place but granted an unusually speedy review, skipping appeals court proceedings to hear arguments Nov. 1.

In its amicus brief, the ABA argues that the ability of the federal executive and the judiciary to guarantee constitutional rights is a cornerstone of American liberty.

“Since the founding era, the supremacy of the Constitution and federal judicial review of constitutional questions have been fundamental to the functioning of American democracy,” the brief said.

The ABA, the brief said, has consistently recognized that these principles form the foundation of the American system of judicially protected constitutional rights. The association has long supported the federal courts’ constitutional role in the nation’s system of checks and balances to preserve and protect individual rights guaranteed by the Constitution.

The ABA brief also contends that Texas’ “weaponization of its courts to allow enforcement of its laws by private citizens dooms its attempts to avoid liability for its constitutional violations,” citing Shelley v. Kramer, in which the court held that states violated the Equal Protection Clause of the 14th Amendment when their courts enforced race-based restrictive covenants by private citizens.

The ABA amicus brief contends that the Texas law’s authorization of private lawsuits interferes with the constitutional right to abortion before viability.  

Texas also seeks to ensconce its law beyond the reach of federal review despite the law’s unquestioned disregard for the court’s precedents holding that the Constitution protects the right to abortion until the point of fetal viability, according to the brief.   

The brief argues that allowing such action could encourage other states to take similar actions, such as, for example, allowing private suits against handgun sellers.

“So long as a state did nothing more than allow and enforce such suits, no federal court, including this one, could do anything about it,” the brief said. “This court has never countenanced such lawlessness.”

Oral arguments are expected Nov. 1. The ABA brief in the case is here.

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