This week, President Joe Biden fulfilled his promise on politically attacking the Texas Heartbeat Act (the Act) by having the U.S. Department of Justice sue the State of Texas. It is no secret that President Joe Biden has fulfilled the oxymoron of a pro-abortion Catholic president, but it is surprising that his administration would take legal action against the Act after the United States Supreme Court had already decided that the law should stand. In a press release from the DOJ, U.S. Attorney General Merrick Garland says, “The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme.”[1]  Like most politically motivated actions, the lawsuit has many flawed arguments. Moreover, it is clear that the unique civil enforcement mechanism in the Act creates a genius obstacle to the DOJ’s argument that the bill denies constitutional rights. Three notably flawed arguments the DOJ makes in the lawsuit are: 1) There is a government actor denying a woman’s right to an abortion and the government actor is the average person 2) The detection of a heartbeat is irrelevant due to the concept of “viability” and 3) The United States is “obligated” to perform abortions.

 

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The first flaw of the DOJ lawsuit is that the DOJ claims that there is a governmental actor enforcing the Act. Obviously, the DOJ did not coordinate or discuss legal strategy with Planned Parenthood who sued in federal court in Texas against private individuals. If they had, the DOJ would have realized the unique nature of the Act: there are no government enforcers, only a civil cause of action. But instead of finding an alternative way to sue, the DOJ still chose the argument that the Act denies the constitutional right to abortion. In order to prove that your constitutional rights are being violated you must show that the government is interfering with your rights. The Act relies on the private individual to bring a cause of action in order to protect the life of a preborn child. In the suit, the DOJ declares that an individual suing under the Act is not suing as an individual, but actually acting on behalf of the government. The DOJ goes as far as to claim that the Act gives individuals “law enforcement authority.”[2] To prove their point that a private individual can be a state actor, the DOJ cites the case Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 285 (2001) where a private interscholastic athletic association was considered a government actor when it enforced rules against a member school in its association. The decision relied on what the court called a “pervasive entwinement of state school officials” which they found using the following criteria: 1) the association consisted of public schools 2) the association acted through public school representatives 3) the association drew officers from the schools 4) The association received funds through dues 5) the association would regulate in lieu of the State Board of Education. Clearly, an individual suing under the Act would not fall under the same government “entwinement” as the sports association in Brentwood v. Tenn. Secondary Sch. Athletic Ass’n.[3] The idea behind the civil enforcement provision of the Act is to have non-government employees sue on behalf of the preborn by attaining their own counsel that they would either pay for themselves or attain through pro bono services. Furthermore, the DOJ cannot prove that a private citizen is somehow coordinating with the government to enforce the Act. There are certainly thousands of prolife Texans who are willing to sue on behalf of the preborn child because of their own desire to protect life. Summarily, the point that private citizens are ‘law enforcement’ simply for filing a lawsuit is absurd. If this were the case, then there would be no civil lawsuits where people sue because they have suffered wrongdoing that is considered illegal under civil law.

 

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Another flaw of the DOJ lawsuit is its heavy reliance on the concept of viability. But this concept is quickly becoming outdated. The DOJ claims that a heartbeat is not a reliable detector of a life that should be protected, but they mistakenly claim that viability should be the measure of life. The concept of viability is currently being challenged at the Supreme Court in the Dobbs v. Jackson Women’s Health Organization case that will be heard in the Supreme Court’s next term. But even before this recent revisit of the viability concept by SCOTUS, there has been critique as to whether viability is a reliable legal standard. Even international law scholars like Elizabeth Chloe Romanis notice that in the United States the “clear delineation by viability begs the question about its definition” and that “it is bizarre that the Supreme Court would affirm a right but leave that right with absent parameters enabling states to construct their own criteria to accessing it.[4] Even Roe v. Wade and Casey v. Planned Parenthood differ in their definition of viability with Roe defining it at 28 weeks and Casey deciding it could restrict abortion 23-34 weeks or sometimes earlier.[5] With such confusion on what the legal standard is for viability, it hurts the DOJ’s case to make a legal argument on an undefined concept. Additionally, viability has been challenged scientifically as new developments in science and technology have been made. You can read more about these scientific challenges to viability in “The Texas Heartbeat Act: Where Sound Science Meets Strong Strategy.”[6] Ultimately, the DOJ wants to attack the concept of life starting at the detection of a heartbeat, but they struggle to do so. With the concept of viability losing its validity, it will be harder for the DOJ to win on this point. As Romanis said, SCOTUS has given states the ability to construct their definition of when a baby’s life can be saved.[7] For Texas, the decision for when to protect life is the detection of a heartbeat.

 

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A third argument that the DOJ makes worth critiquing is the claim that the United States is “obligated” to perform abortions. Several times throughout the portion of the suit that addresses interstate commerce concerns, the DOJ clams that the “United States is obligated to provide the constitutional abortion services that S.B. 8 outlaws.”[8] On a moral level, it is disheartening and shocking that the federal government feels an obligation to take the lives of preborn children. While the DOJ proceeds to talk about different programs that provide for or fund abortion, the question must be asked why government entities feel that they must kill children in the womb. This question is never really answered. However, there is a weak logical connection to the right to privacy argument that allows for abortion in Roe and the claim that there is a federal obligation to abort. Not only would it be difficult to argue that Roe obligates the federal government to abort babies, but the DOJ quotes no federal statue with such language that commands the government to provide abortions.

 

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The DOJ follows their argument about obligation with an argument that existing government contracts that fund abortion services will be affected by the Act. However, Texas has already accomplished terminating such contracts in previous legislation from 2019.[9] That law, known as SB 22, has never been legally challenged by the DOJ. To legally attack the concept of cancelling government contracts with abortion providers in Texas by attacking the Act, is too much too late. But it is worth noting just how many federal government programs have contracts that either fund or provide for abortions. The DOJ lists in their lawsuit the many federal agencies that have contracts to provide for abortion: Department of Labor Job Corps, the Office of Refugee Resettlement, Centers for Medicare and Medicaid Services, Office of Personnel Management, and the Department of Defense. This lawsuit is revealing just how involved the government is in advocating for abortion while claiming it is a private right. Nevertheless, the DOJ cannot argue through case precedent, legal statute, or the existence of government contracts that the federal government is obligated to provide for abortions.

 

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The DOJ makes many more arguments that are very much legally debatable. However, their stretch in calling  pro-life citizens law enforcement, relying on the legally challenged concept of viability, and claiming that the Texas Heartbeat Act keeps them from doing something they have to do are arguments that are weak enough to render the suit flawed. The good news is that the highest legal department in the land, who politically oppose the law, seems stumped on how to challenge it. Once again, the Heartbeat Act proves to be a solid law that will remain in place to save thousands of preborn babies.

 

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[1] Merrick Garland, Justice Department Sues Texas Over Senate Bill 8 (2021) https://www.justice.gov/opa/pr/justice-department-sues-texas-over-senate-bill-8 .

[2] U. S. v. Texas, No. 121 Civ. 796 (W.D. Tex. Sept. 9, 2021).

[3] Brentwood at 291.

[4] Elizabeth Chloe Romanis, "Is Viability ‘Viable’? Abortion, Conceptual Confusion and the Law in England and Wales and the United States," 7, J.L&Bio 1,7 (2020).

[5] Id. at 8.

[6] https://www.societyofstsebastian.org/summer2021-tx-heartbeat-grossu-saenz .

[7] Id. at 7,9.

[8] U.S. v. Texas at 13.

[9] Tex. Gov. Code §2273 (2019) https://statutes.capitol.texas.gov/Docs/GV/htm/GV.2273.htm .