New Jersey has joined a multi-state coalition of 24 state attorneys general in filing an amicus brief in support of the U.S. Department of Justice’s recent lawsuit seeking to prevent Texas from effectively banning most abortions in the state.
The Department of Justice filed a lawsuit on September 9 against the state of Texas, arguing that the ban violates an individual’s constitutional right to an abortion before viability, which usually happens around 24 weeks of pregnancy.
“The Act is clearly unconstitutional under longstanding Supreme Court precedent,” said U.S. Attorney General Merrick B. Garland. “The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.”
New Jersey Attorney General Andrew J. Bruck said that the Texas law clearly violates the constitutional right to have an abortion procedure prior to viability, which the U.S. Supreme Court has recognized for nearly 50 years.
In contrast, the Texas law bans most abortions after a fetal heartbeat can be detected, usually at about six weeks. It contains no exceptions for pregnancies that result from rape, sexual abuse, incest or for pregnancies involving a fetal defect incompatible with life after birth.
The amicus brief was filed by the attorneys general of Massachusetts, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.
New Jersey women’s rights advocate Lisa McCormick praised Massachusetts Attorney General Maura Healey for leading the coalition of 24 attorneys general in filing the amicus brief. asserting that the Constitution protects women’s ability to control their reproductive lives, as it is essential to their freedom and part of an implicit right to privacy.
Texas legislators have tried to circumvent the Constitution’s protections of abortion rights through an unprecedented scheme that deputizes any person – except Texas state or local officials – to enforce the law in court.
Private parties are allowed to recover a minimum of $10,000 from individuals who facilitate an abortion prohibited by the law, including anyone who performs or induces a prohibited abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and anyone who “intends” to perform or aid a prohibited abortion.
Human rights experts at the United Nations issued a statement condemning the Texas abortion ban, naming it a violation of international law.
“We urge relevant judicial authorities to halt the implementation of this law which violates women’s fundamental human rights and generates a climate of stigma and fear through the provision which deputizes its enforcement to private parties and may potentially incite violence against those who aid or facilitate the access of a pregnant woman to abortion” said the UN Working Group on discrimination against women and girls in a September 14 statement.
A study in the Journal of the American Medical Association found that “compared with having an abortion, being denied an abortion may be associated with greater risk of initially experiencing adverse psychological outcomes.”
A study in the American Journal of Public Health also found that “women denied an abortion were more likely than were women who received an abortion to experience economic hardship and insecurity lasting years” and “laws that restrict access to abortion may result in worsened economic outcomes for women.”
“This flagrantly unconstitutional law unleashes bounty-hunting vigilantes to get in the way of someone’s right to basic healthcare,” said Healey. “As leaders in the fight to preserve healthcare and access to abortion, we will protect reproductive rights for every person in our states, and we stand with the Department of Justice in fighting to stop this dangerous law from putting the lives of our residents at risk.”
“State laws that prohibit a person from deciding whether to terminate a pregnancy before viability are unmistakably unconstitutional, and cannot be allowed to stand,” said McCormick. “Texas has revoked the US Constitution when lawmakers there gave private vigilantes the power to prevent from terminating a pregnancy during the first six weeks women who have a federal constitutional right to obtain an abortion during that time.”
“Texas’s all-out assault on the health and safety of women is unconscionable,” said Governor Phil Murphy. “Limiting choice and restricting access to safe reproductive health care endangers the lives of women and their families, particularly those in our most vulnerable communities. Reproductive rights are human rights and we will not sit idly by as these individual freedoms are under attack.”
“New Jersey supports reproductive freedom and eliminating barriers to pregnancy-related care, including abortion,” said Bruck. “But this case is about more than abortion rights. Allowing private bounty hunters to sue anyone who helps someone exercise their rights is an affront to the Constitution and an attack on all of our rights. We cannot allow this Texas law to become a new template for states to undermine constitutional and civil rights across the country.”
Signed into law in May of this year, the Texas law banning most abortions took effect on September 1 after the U.S. Supreme Court voted 5-4 the same day not to block it. In refusing to block Texas’s implementation of the law, however, the high court did not rule on its constitutionality. The Justice Department’s lawsuit centers on that undecided issue – asserting that the Texas law is blatantly unconstitutional.
“The Supreme Court failed to stop a Texas law from taking effect that outlaws abortion, abrogating the protection for women won in the Roe v. Wade decision, which protects every woman’s freedom to make her own reproductive choices,” said McCormick, after the nation’s highest court — stacked with Trump Republicans– passed on the opportunity to black the Texas law from going into effect.
“Desperate for care, many Texans are being forced to travel to other states to obtain abortions, while others may attempt to end their own pregnancies despite the risks,” said McCormick. “For some, the barriers will simply be too high, and they will be forced to continued unwanted pregnancies, and give birth to children that they are not prepared to raise.”
The Texas law “represents a new and dangerous frontier in the quest by some state legislatures to restrict or eliminate abortion access in defiance of well-established law,” the amicus brief argues. At its core, the brief contends, the law represents “open and purposeful disregard” of precedent set in Roe v. Wade, and in another, more recent U.S. Supreme Court case, Planned Parenthood v. Casey.
The brief also asserts that if Texas’s law is upheld and additional states ultimately use similar strategies to enact “copycat” laws placing similar strictures on most abortions, it could have disastrous consequences for the nation.
There is also a concern that the private-enforcement scheme adopted by Texas could be used to undermine other constitutional rights. To illustrate that point, the amicus brief asks what would have happened in the 1950s if a state had permitted parents opposed to school desegregation to sue Black children for enrolling in previously all-white schools.
Today’s brief also argues that the Texas law will cause irreparable harm to many Texas residents – particularly those unable to afford to travel elsewhere for abortion care – by forcing them into unwanted pregnancies, which often have negative health and socioeconomic effects.
The Texas law will also affect other states. For example, New Jersey has a direct interest in protecting the right to abortion care for its own residents who may travel to Texas for work, study or family obligations, and for New Jersey physicians who may practice there.
In addition, the brief cautions that if “access to safe and legal abortion is severely restricted or banned in states across the country, vast ‘abortion deserts’ will arise.
The inevitable result is that some patients will be forced to travel hundreds or thousands of miles to receive care, health care systems in states like ours that continue to provide abortion access will face untenable strain, and many patients without resources to travel will simply be unable to receive the care that they need.”
Texas is not the only state that is seeking to revoke the constitutional protection for a right to privacy.
In February, South Carolina enacted a law that bans abortion, except in narrow circumstances, after the detection of a fetal “heartbeat,” which can occur as early as six weeks into a pregnancy and is well before a fetus could be viable. Under the ban, a person who is found guilty of violating the law can be fined $10,000 and imprisoned for up to two years. In March, a district court granted Planned Parenthood’s motion for a preliminary injunction, halting enforcement of the law while the case is pending.
The U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade ruled that a state may not prohibit a woman from choosing to end a pregnancy before viability. The ruling was reaffirmed in Planned Parenthood of Southeastern Pa. v. Casey in 1992. South Carolina’s unconstitutional ban on and criminalization of pre-viability abortions violates these long-established protections.
The stakes are also high for abortion rights in Dobbs v. Jackson Women’s Health Organization, an upcoming U.S. Supreme Court case challenging a Mississippi abortion ban.
Mississippi’s opening brief in that case, flatly asked the Supreme Court to overturn Roe v. Wade and permit states to outlaw abortion.