Justice Department preparing to sue Texas over abortion law

The Garland DOJ had been criticized by Democrats and abortion rights groups urging action

The Department of Justice (DOJ) is getting ready to file suit against Texas over its new law outlawing most abortions, according to sources familiar with the situation.

The action from Attorney General Merrick Garland's DOJ is expected to come as early as this week, Fox News has learned.


This news comes just days after Garland said the department was "urgently" exploring "all options to challenge Texas S.B. 8 in order to protect the constitutional rights of women... including access to an abortion."

U.S. Attorney General Merrick Garland holds a news conference at the Department of Justice in Washington, D.C., U.S., June 25, 2021. REUTERS/Ken Cedeno

U.S. Attorney General Merrick Garland holds a news conference at the Department of Justice in Washington, D.C., U.S., June 25, 2021. REUTERS/Ken Cedeno (REUTERS)

The Wall Street Journal first reported the news of the impending suit.

The Biden administration, and the Garland DOJ in particular, has been criticized in recent days by Democrats on Capitol Hill and abortions rights groups urging action in the matter.

The law, signed by Texas Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant. 

The Supreme Court, last week, in a 5-4 decision, ruled that the law could remain in effect. 

President Biden slammed the Supreme Court's decision last week as an "unprecedented assault on a woman’s constitutional rights," noting that while it was not a "final ruling,"  the decision required "an immediate response." 

The president said he was directing his Gender Policy Council and the Office of the White House Counsel to launch "a whole-of-government effort to respond to this decision," looking specifically to the Department of Health and Human Services and the Department of Justice to "see what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas' bizarre scheme of outsourced enforcement to private parties." 


The Texas law is the strictest law against abortion rights in the United States since the Supreme Court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect. 

Chief Justice John Roberts dissented along with the court's three liberal justices. Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.

Roberts noted that while the majority denied the request for emergency relief "the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue."

Justice Sonia Sotomayor called her conservative colleagues' decision "stunning." "Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand," she wrote.

Texas lawmakers wrote the law to evade federal court review by allowing private citizens to bring civil lawsuits in state court against anyone involved in an abortion, other than the patient. Other abortion laws are enforced by state and local officials, with criminal sanctions possible.


In contrast, Texas' law allows private citizens to sue abortion providers and anyone involved in facilitating abortions. Among other situations, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.

Texas has long had some of the nation’s toughest abortion restrictions, including a sweeping law passed in 2013. The Supreme Court eventually struck down that law, but not before more than half of the state’s 40-plus clinics closed.

Even before the Texas case arrived at the high court the justices had planned to tackle the issue of abortion rights in a major case scheduled for argument in the fall. That case involves the state of Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy.

The Associated Press contributed to this report.