Merrick Garland Is Suing Texas Over Its Abortion Ban. Here’s How He Can Win.

Photo from VOA News / Reuters

News broke late yesterday in the Wall Street Journal that the Justice Department is preparing to sue the state of Texas over its restrictive and draconian abortion ban, with an action coming as early as today. The precise way in which the Attorney General will attack the law remains unclear, with Merrick Garland stating on Monday that his department was “urgently” exploring all avenues, and yesterday affirming that they would “pursue an argument that the Texas law illegally interferes with federal interests.”

Legal pundits began speculating immediately about the nature of the proposed suit and what those “federal interests” are. But Harvard Professor Laurence Tribe, who is a frequent advisor on legal matters to the White House, may have provided a roadmap. The issue is a bit complex, so let’s break it down into more digestible morsels.

When looking at a law that somehow manages to do what is supposed to be forbidden, it’s often helpful to ask what it is about that law that just feels wrong. From there, given the breadth of case precedent in the U.S., there is often caselaw that is more or less on point, even if it seemingly has nothing to do with the subject matter, in this case abortion. 

What feels wrong about the Texas law is this: Texas has effectively delegated enforcement of a law to private citizens through a system of bounties and misuse of the civil court system. To give a stark example, imagine a police officer handing a gun to someone and saying, “I can’t harm him because I’m the ‘state,’ but you go ahead and shoot. Oh, and the government will give you $10,000 for it.” No one wants to so empower authorities or citizens in this way, and so the law ought to cover instances like this where the state is trying to evade judicial review by handing off enforcement to non-state actors.

After all, if states were allowed to do this with something like abortion, they could do it for all manner of other things, from drug use to consensual private sex to contraception, with people paid bounties to peek in other citizens’ windows and scroll through their texts then sue them. It would set up an unworkable and dangerous system of vigilante justice. And it turns out, the Supreme Court has addressed this question before.

The case was not an abortion case. It was far from it. It was a boring case about a liquor license. Now, hear me out, because it takes a bit to get to the point. The case was Larkin v. Grendel’s Den, Inc., decided in 1982 by a fairly conservative Supreme Court. A Massachusetts law gave schools and churches the right to prevent the issuance of liquor licenses within 500 feet of their premises by merely objecting to the license. Grendel’s restaurant was next to a church that had sought to deny it a liquor license. 

The Supreme Court found, in an 8-1 decision, that the Massachusetts statute was not merely a neutral application of zoning law but instead was an unconstitutional delegation of government power to private, non-government entities. It also found that the law substituted the unilateral and absolute power of a church for the reasoned decision-making of a public legislative body, thus improperly enmeshing religious sensibilities into the process of government.

The same is happening now in Texas. Pro-life organizations, which have direct and strong ties to religious organizations, have been empowered to sue and effectively shut down abortion clinics through private enforcement of the law—something that the state itself could not do directly. Private religious views are effectively being enforced through delegation by the state. If under Larkin the state can’t even delegate the power of liquor license zoning to the whims of private parties, how possibly can it delegate the power to deny reproductive rights, especially when those rights are expressly protected by law under Roe v. Wade and Casey?

This argument is a strong one and worthy of a suit behind it. It could result in an order invalidating S.B. 8 as unconstitutional under the reasoning of Larkin and the cases that flowed from it. I trust and hope that the Attorney General and the Justice Department will cite this line of case authority and move promptly for an injunction as part of its legal offensive against the law.