The US Department of Justice has sued Texas over a new law that severely restricts access to abortions, arguing it is “in open defiance of the Constitution”.
The move is a test of the federal government’s legal powers to challenge a law it deems unconstitutional and to stop other states from introducing similar measures. It comes amid an intensifying campaign to undo Roe vs Wade, the 1973 Supreme Court decision that legalised abortion nationwide.
Merrick Garland, the US attorney-general, warned that if the Texas ban “prevails it may become a model for action in other areas by other states”.
Garland said the justice department would bring similar lawsuits against states that used “provisions to deprive [their] citizens of their constitutional rights and . . . the ability to seek immediate review”.
The Texas ban is considered extreme even by conservative standards. It outlaws abortion after roughly six weeks of pregnancy, before many women know they are pregnant, without exceptions for rape or incest.
The law allows individuals, rather than the state, to report people to authorities for helping women have abortions, and to potentially receive at least a $10,000 payment for doing so. Experts have described the structure of the law as an effort to sidestep Supreme Court decisions that prohibit states from outlawing abortions before the foetus reaches “viability”.
Garland said the design of the law “deputises all private citizens without any showing of personal connection or injury to serve as bounty hunters”.
The justice department argues the law is invalid under the “supremacy clause”, which holds that federal law takes precedence over state law, as well as the “equal protection” guarantees enshrined in the 14th amendment.
The Texas law also violates intergovernmental immunity, which ensures the federal government and states do not infringe each others’ sovereignty, the DoJ said.
Laurence Tribe, professor emeritus at Harvard University, said the DoJ’s lawsuit looked “extremely strong”.
“By emphasising the affront to federal supremacy and the rule of law . . . the complaint reaches beyond Roe vs Wade to encompass a structural attack on the basic design of the extraordinary Texas law,” he added.
A spokesperson for Greg Abbott, Texas governor, said: “We are confident that the courts will uphold and protect [the] right to life.”
The DoJ’s move comes after the Supreme Court, which is dominated by conservative justices, declined to block the law when it took effect last week.
The decision raised concerns among legal scholars, activists and Democratic lawmakers that the justices could eventually overturn the legal precedent set by Roe vs Wade.
President Joe Biden attacked the decision after the law took effect last week, saying it would “significantly impair women’s access to the healthcare they need, particularly for communities of colour and individuals with low incomes”.
Some Republican governors have praised the Texas law and even vowed to follow with their own additional restrictions on abortion. But many in the party at the national level are concerned it could alienate moderate voters.
Abbott sought to defend the law this week but triggered another furore by insisting that he would try to “eliminate all rapists from the streets of Texas” rather than loosen the abortion curbs.
Some Democrats have been pushing for Congress to pass legislation to codify abortion rights as a way of pre-empting any Supreme Court move to strike down Roe. While such a bill would probably pass the House of Representatives, it would struggle to clear the 60-vote supermajority threshold required to advance in the Senate.