Acting AG Bruck: New Jersey Files Amicus Brief Asking U.S. Supreme Court to Block Texas Law Banning Abortions

For Immediate Release: October 18, 2021

Office of The Attorney General
– Andrew J. Bruck, Acting Attorney General
Division of Law
– Michelle Miller, Director

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Lee Moore

View Amicus Brief

TRENTON – Acting Attorney General Andrew J. Bruck announced today that New Jersey has joined a brief in the U.S. Supreme Court supporting the federal Department of Justice’s (DOJ) challenge to a Texas law that effectively bans most abortions in the state.

Specifically, today’s brief asks the nation’s highest court to find that a federal judge’s October 6 injunction temporarily halting enforcement of the Texas law was proper, and that a Fifth Circuit Court of Appeals ruling staying that injunction on October 14 was incorrect.

Among other things, today’s amicus brief argues that Texas’s abortion law clearly violates the constitutional right to an abortion prior to viability – a Fourteenth Amendment right long recognized by the Supreme Court and cemented by “nearly a half century of binding precedent.”

“S.B. 8 is a clear and present danger to the bodily autonomy of women and their right to privacy,” said Governor Phil Murphy. “Acting Attorney General Bruck’s announcement is a welcome development. We will fight this misguided, offensive, and reckless assault on abortion services and women’s health and we will not rest until the right to choose is no longer under threat.”

In announcing the Supreme Court filing by a coalition of 24 Attorneys General today, Acting Attorney General Bruck contrasted the manner in which Texas lawmakers have stripped Texas residents of a right long protected by legal precedent with New Jersey’s own recent actions. Indeed, on Wednesday, the Acting Attorney General announced that the state Board of Medical Examiners had voted unanimously to adopt new rules eliminating medically unnecessary regulations on abortion in New Jersey, and opening new avenues for access to reproductive healthcare services across the state.

“A federal judge rightly rejected the Texas law because it takes away a fundamental right under our Constitution, and because it threatens harm to untold numbers of persons who need or who provide this essential healthcare,” said Acting Attorney General Bruck. “We fully agree and we call on the Supreme Court to halt enforcement of this blatantly illegal measure.”

The Texas law (S.B. 8) bans most abortions after approximately six weeks, and contains no exceptions for pregnancies that result from rape, sexual abuse and incest, or for pregnancies involving a fetal defect incompatible with life after birth.

Today’s brief argues that S.B. 8 is tantamount to “an across-the-board ban on constitutionally protected conduct” and asserts that the law has made it all but impossible to obtain an abortion in Texas. The brief further argues that Texas’ law has created widespread fear among abortion providers of being targeted under a provision that deputizes private citizens and private entities – but not Texas state or local officials – to enforce the law by filing civil lawsuits.

Under the law, private parties are allowed to recover a minimum of $10,000 from individuals who facilitate an abortion prohibited by the law, including anyone who performs or induces a prohibited abortion, anyone who aids or abets the performance or inducement of a prohibited abortion, and anyone who intends to participate in a prohibited abortion.

Today’s multi-state brief refers to Texas’ granting of enforcement powers to private citizens – and not state officials – as an evasive “scheme” employed for the purpose of “trampling constitutional rights under the color of state law.”

On October 6, a federal judge in Texas issued a preliminary injunction blocking enforcement of the Texas law, and in a 113-page ruling that accompanied the injunction agreed with the position taken by both DOJ and the amicus states.

In his ruling, the judge wrote that, “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

On October 8, the Fifth Circuit Court of Appeals temporarily held the injunction in abeyance, and, on October 14, issued a stay blocking the injunction issued by Judge Pitman. These rulings cleared the way for the Texas law to go into effect.

DOJ has since asked the Supreme Court to vacate the Fifth Circuit’s stay, which would put Judge Pitman’s preliminary injunction back in force.

Today’s multi-state brief supports DOJ’s request, noting that Judge Pitman’s preliminary injunction is necessary to halt “irreparable harms” being done to countless Texas residents.

The brief observes that such harms “are rippling well beyond Texas into other states, as people are forced to seek care elsewhere, in many cases overwhelming capacity and threatening our own residents’ access to care.”

Last month, Acting Attorney General Bruck joined a multi-state coalition in filing an amicus brief with the U.S. District Court supporting DOJ’s lawsuit and asserting that Texas’ law “represents a new and dangerous frontier.” At its core, New Jersey and the other participating states asserted in that September filing, the law represents “open and purposeful disregard” of precedent set in Roe v. Wade, and in another, more recent U.S. Supreme Court case, Planned Parenthood v. Casey.

The September brief also asserted that if Texas’s law is upheld and additional states ultimately use similar strategies to enact “copycat” laws placing similar strictures on most abortions, it could have disastrous consequences for the nation.



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