Merrick Garland is trying to save Texas from itself

I’ve hated writing stories like this as long as I’ve been a writer, because it’s one of those “where do you start?” stories, or alternatively, “let me count the ways.”  Here’s what I mean:  I’ve read the DOJ lawsuit against the state of Texas, and to be brief, it is a masterpiece.  So, having delved into every one of its 26 pages, almost every one of which has at least one quotable sentence, where do I start?

Well, the best place is probably page 25, where the DOJ states flat-out why the Texas fetal heartbeat law is unconstitutional: “S.B. 8 violates the supremacy clause and is preempted because it is contrary to the 14th Amendment to the U.S. Constitution.”

That would be Article VI, Clause 2 of the Constitution, folks, which establishes that the Constitution and all federal laws enacted pursuant to it take precedence over any and all state laws or court decisions, even those bound by state constitutions, which are subordinate to the U.S. Constitution, the “supreme law of the land.”  Here it is in full:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Boom.

I think we can agree it’s a pretty straightforward statement by the “founders” who conservatives are so fond of lionizing.  This document…forgive me…trumps everything else.

The 14th Amendment to the Constitution, adopted after the Civil War in 1868, guarantees to every citizen of the United States equal protection of the law and the right to “due process,” defined as forbidding the denial of life, liberty, and property without due process of law.

Zang.

Two of the biggies, wouldn’t you say?  Merrick Garland and the Department of Justice are saying that the Texas law essentially ending the right to abortion in the state violates the legal and moral principles on which this country was founded.

The way the DOJ goes about its pleading, filed yesterday in the federal court located in Austin, Texas, the state capital, is comprehensive and methodical.  The state of Texas and its law, S.B. 8, set out to violate women’s constitutional rights to abortion under the Roe v. Wade Supreme Court decision of 1973 and get away with it by essentially negating and nullifying that decision and every abortion decision which came after it, such as Planned Parenthood v. Casey.  On top of that, the DOJ says, Texas has attempted to put its anti-abortion law beyond the reach of challenge under the Constitution.

How’s that for hutzpah, huh? 

To support its case, the DOJ goes into the ways the “scheme” (Merrick Garland’s word) not only violates elemental principles in the Constitution but undermines the authority of the federal government in various ways, such as interfering with and restricting its legal control of interstate commerce and its obligation under the law to provide healthcare to the employees of the Department of Defense, the Bureau of Prisons, the Office of Refugee Resettlement, and the Department of Labor.  Attempting to restrain the authority of the federal government in its management and administration of its departments is, to put it bluntly, against the law. 

The elemental case the DOJ makes in its brief is easy to understand when you put it in context.  Texas is attempting to interfere with women’s rights to choose abortion under the Roe v. Wade decision in the same way Southern states attempted to interfere with the rights of Black children to an equal education after the passage of Brown v. Board of Education. 

It is often forgotten that it took several subsequent court decisions after Brown to end school segregation in the South.  In 1956, in Cooper v. Aaron, a federal district court in Arkansas ordered the state school board to formulate a plan to desegregate the state’s schools and denied a request by the board to delay desegregation by 30 months.  President Eisenhower federalized the Arkansas National Guard and sent 1000 troops from the 101st Airborne Division into Little Rock to enforce the court’s order to integrate Arkansas schools.

The case was appealed, upheld by the Circuit Court of Appeals, and appealed again to the Supreme Court.  In 1958, the Supreme Court decided Cooper v. Aaron in a 9-0 decision and issued the only unanimous opinion signed by all nine justices on record.  The court essentially found that all states are bound by Supreme Court decisions and must enforce them even if they disagree with them. 

In support of its finding, the court cited the supremacy clause in Article VI and the 14th Amendment. 

Sound familiar?  Here we are 63 years later and the DOJ is filing a lawsuit to uphold yet another constitutional right, the right to choose abortion, against a state violating the Constitution in the same way Southern states attempted to violate the Constitution by refusing to integrate their school systems.  They never give up, do they?  And they do the same thing over and over and over again. 

I don’t know how the Supreme Court will decide the Mississippi abortion case it is due to take up this term.  Experts are divided on what the court will do, but lean toward the court using the case to overturn Roe v. Wade.  But the state of Arkansas lost its case against integration in 1958, and the state of Texas is going to lose the case filed yesterday by Merrick Garland and the Department of Justice.  I’ll go out on a limb and say that from my reading of the DOJ brief, I predict that a stay will be issued against the Texas fetal heartbeat law by the district court in Austin, and the stay will be upheld, yes, even by the current arch-conservative Supreme Court. 

They may eventually use the Mississippi case to overturn Roe, but in the not too distant future, they will be forced by their own precedents and the words of the Constitution itself to stay the Texas law from enforcement, and women will once again, if only temporarily, have the right to choose an abortion in the state of Texas.