Herring files amicus brief supporting the DOJ’s challenge to Texas’ unconstitutional law banning abortions after six weeks

RICHMOND (September 15, 2021) – Attorney General Mark R. Herring today joined a coalition of 24 attorneys general in filing an amicus brief in support of the U.S. Department of Justice’s (DOJ) challenge to Texas’ new unconstitutional six-week ban on abortions. Attorney General Herring’s brief specifically supports DOJ’s motion for a preliminary injunction of the law, that went into effect earlier this month.

Last week, Attorney General Herring led a coalition of 21 attorneys general in filing a similar amicus brief in Planned Parenthood South Atlantic v. Wilson, arguing that South Carolina’s six-week abortion ban harms women’s healthcare and a lower court’s ruling blocking the law should be upheld.

“The Texas abortion ban is not only unconstitutional, it’s just plain wrong. This law was explicitly written to try and circumvent any kind of judicial review, but my colleagues and I will not let that happen – S.B. 8 will see its day in court,” said Attorney General Herring. “A woman’s constitutional right to choose what she does with her own body is under attack across this country. As long as I am attorney general, I will do everything in my power to fight back against this alarming wave of abortion restrictions and protect a person’s constitutional right to an abortion.”

Attorney General Herring’s brief, filed today in the U.S. District Court for the Western District of Texas, argues that by banning all pre-viability abortions within Texas’ borders, the law, Senate Bill 8 (S.B. 8), violates nearly 50 years of Supreme Court precedent affirming the constitutional right to terminate a pregnancy before viability. The brief further contends that the Texas legislature sought to circumvent prior Supreme Court rulings and prevent judicial review of the law by delegating enforcement authority to private individuals instead of the government and, as such, S.B. 8 is an “unprecedented attack on our constitutional order” and the rule of law.

Attorney General Herring and his colleagues contend that the clear purpose of S.B. 8’s private enforcement scheme is to produce an “across-the-board ban on constitutionally protected activity,” and that the private enforcement mechanism does not shield Texas’ unconstitutional law from judicial review. The brief describes how Texas created a structure within its state court system that requires courts to provide monetary and injunctive relief to claimants who bring cases against doctors who provide abortions and those who “aid and abet” such constitutionally protected care. Attorney General Herring and his colleagues argue that the federal district court should not allow Texas to render the constitutionally protected rights recognized in Roe v. Wade legally void through the law’s transparent scheme.

Attorney General Herring’s brief describes how the law is already significantly impacting abortion provider clinics in Texas and beyond, including in amici states. Clinics in nearby states are already reporting a rise in calls from Texas patients seeking abortions, and one day after the law went into effect, all abortion clinics in New Mexico were reportedly booked for weeks. This rise in abortion caseloads in other states from Texas patients and the increase in needed travel for patients could result in many people – especially low-income individuals – being unable to receive the care they need. The law also threatens the many people who help patients in Texas obtain access to abortion by creating more than $10,000 potential liability for anyone who so much as gives a patient a ride to an abortion provider or otherwise “aids or abets” an abortion. The amici state, the brief explains, are committed to shielding their residents and clinicians from these harms when they help a patient in Texas obtain constitutionally protected care.

Finally, Attorney General Herring and the coalition argue that it is essential for the federal district court to grant a preliminary injunction of the law to stop the irreparable harm that S.B. 8 is inflicting on people in Texas and across the country, including the amici states. Forcing a patient to carry an unwanted pregnancy to term, the brief argues, will lead to negative health and socioeconomic consequences, including placing people who are forced to carry a pregnancy to term at greater risk of life-threatening illnesses and harming their ability to maintain full-time employment.

Attorney General Herring has been a strong advocate for women’s healthcare and reproductive rights in Virginia. Last week, Attorney General Herring led a coalition of 21 attorneys general in filing an amicus brief in Planned Parenthood South Atlantic v. Wilson, arguing that South Carolina’s six-week abortion ban harms women’s healthcare and a lower court’s ruling blocking the law should be upheld. He has stood against attacks on women’s reproductive freedom and has fought in court to defend women’s access to comprehensive healthcare services, including abortion and birth control. He issued an official advisory opinion that helped protect women’s health clinics from expensive and medically unnecessary retrofits that would have closed many Virginia clinics that offer abortion services. Attorney General Herring successfully fought alongside his colleagues in the Whole Women’s Health case to strike down Texas’s onerous, medically unnecessary regulations, and he has fought for women’s reproductive justice around the country, working with colleagues to oppose medically unnecessary restrictions on abortion in Ohio and Alabama. Additionally, he continuously fought against the Trump Administration’s attacks on women’s access to the full range of reproductive health care services and contraception options.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.