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Will the Justice Department's case against Texas' abortion ban work?

Attorney General Merrick Garland is taking aim in a big way at Texas' sweeping abortion ban. The question is whether his case will work.


Last week, five conservative Supreme Court justices gave the green light to Texas Republicans' sweeping anti-abortion law. As this week got underway, Attorney General Merrick Garland announced that the Justice Department was prepared to help protect Texas women seeking to terminate unwanted pregnancies.

But there was a noticeable practical problem: Garland pointed to the Freedom of Access to Clinic Entrances Act — generally known as the FACE Act — which prevents abortion opponents from physically blocking access to clinics. Enforcement of the law is certainly important, but in the Lone Star State, the problem is less about people literally blocking clinics' doors and more about Texas Republicans creating a ridiculous bounty system.

If the Biden administration was going to take on the new state law, it would have to go much further. Yesterday afternoon, as NBC News reported, it did exactly that.

The Biden administration is filing a lawsuit against Texas challenging its near-total ban on abortions, which the Supreme Court declined to block last week. Attorney General Merrick Garland said Thursday that the Justice Department filed the suit against Texas over its law, which he called "clearly unconstitutional under longstanding Supreme Court precedent."

"The United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights to a legislative scheme specifically designed to prevent the vindication of those rights," Garland said at a news conference.

The question then becomes one over efficacy: Will the Justice Department's lawsuit work?

There is relevant precedent to draw upon. As Rachel explained on last night's show, when Arizona Republicans approved their infamous anti-immigration law in 2010, the Obama administration's Justice Department sued, insisting that the state statute conflicted with existing federal law – and GOP state policymakers couldn't effectively undo federal law on their own.

Eventually, the U.S. Supreme Court largely agreed, striking down the bulk of Arizona's policy. Now, it looks like federal prosecutors hope to run a similar plan, arguing in its new lawsuit that Texas' abortion ban is plainly at odds with federal law, as defined by existing Supreme Court precedent.

Time will tell, obviously, whether the federal judiciary agrees. The Justice Department filed suit yesterday in Texas' capital, but there's trouble on the horizon: The Lone Star State is in the 5th Circuit, and the 5th Circuit Court of Appeals is, by most measures, the nation's most conservative and reactionary circuit, stacked with conservatives tapped by Republican presidents.

That said, if federal prosecutors can find some relief at the district court, it might lead to a temporary halt to Texas' abortion ban. Watch this space.