Feds, Texas square off in court over novel abortion law

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The Justice Department asked a federal court Friday to block a Texas law that relies on an unusual, private enforcement mechanism to try to limit the availability of abortion in the state.

During a three-hour hearing held by video before Austin-based U.S. District Court Judge Robert Pitman, lawyers battled over a lawsuit the Biden administration filed last month to try to neutralize the Texas anti-abortion measure, known as Senate Bill 8.

A top DOJ attorney, Deputy Assistant Attorney General Brian Netter, accused the state of implementing "an unprecedented scheme of vigilante justice" that amounts to an effort to upend the constitutional right to abortion and the federal government's authority while evading accountability in the courts.

"So far, it’s working," Netter said in arguing for a preliminary injunction against the statute and the state. "Its ploy to keep S.B. 8 out of court is an open threat to the rule of law … S.B. 8 imperils the supremacy of the U.S. Constitution."

Netter said the private-enforcement scheme is designed to scare abortion providers into refusing to aid women who want to exercise their constitutional right to terminate a pregnancy.

"It's designed to work through the turrets," he said, apparently suggesting that the threats the law creates are deliberately hidden and unpredictable.

Soon after the law took effect on Sept. 1, the Supreme Court voted, 5-4, to decline a bid by abortion providers to block it. However, the justices signaled doubts about the constitutionality of the so-called heartbeat law, which seeks to ban abortions performed after a fetus reaches six weeks of gestational age — when cardiac activity is typically detected. The high court also left open the possibility of further legal action.

One challenge facing Justice Department attorneys in the new suit they filed on Sept. 9 is that they can point to no specific statute that gives the federal government the right to sue over a law like the Texas one. Netter and his colleagues have argued that a variety of federal agencies that deal with immigrants, prisoners or even members of the Job Corps are affected by the Texas law.

Another disputed question is whom the judge could order not to enforce the law, since it is set up to operate through private individuals filing suits in state court. Netter argued that those individuals are effectively agents of the state, so could be covered by any injunction that Pitman issues.

"They're not truly private individuals trying to vindicate private interests in court. … They are state actors," Netter said. "These individuals are state actors by virtue of the scheme that was developed by the state. … The state has deployed a series of tricks to avoid the Constitution directly in a way the state has acknowledged it could not accomplish directly."

However, a lawyer for Texas denied that the law is unconstitutional. Will Thompson of the Texas Attorney General's office said the law actually includes language that applies the current Supreme Court standard for abortion rights as long as that standard remains in effect.

"I'm sorry to see that the federal government's pattern of hyperbole and inflammatory rhetoric is continuing," Thompson said. He argued that creating the prospect of being sued for something could hardly amount to an end run around the legal system.

"Nothing happens to a defendant in a heartbeat lawsuit until a state court has heard the case. This is not some kind of vigilante scheme," Thompson said. "It is a scheme that uses the normal and lawful process of justice in Texas. … We don't think the private plaintiff is put in the shoes of the state."

Thompson argued that the suits are akin to ordinary "tort" suits, often filed over car accidents or slip-and-fall injuries. But Netter said that wasn't the case because the potential plaintiffs here could be anyone, even those who have no connection to the person seeking the abortion or anyone else involved in the case.

The federal government has sued states before over immigration and land-use related issues, but lawyers for Texas argued that the federal government's interest in this instance isn't evident because there is no federal statute encouraging abortion. Thompson also noted that one statute aimed at preserving access to abortion facilities, the Freedom of Access to Clinic Entrances Act, doesn't provide any legal mechanism for the federal government to challenge state laws.

"The federal government doesn't have some purpose of promoting abortions or making sure more of them happen," Thompson said.

The judge didn't provide a clear indication of how he planned to rule, but at one point he expressed concern that the Texas law did seem intended to interfere with abortion rights while making it difficult to seek recourse in court.

"That's what this statute was designed to do, was to find a proxy for the state that would insulate the state from the sort of judicial oversight that would ordinarily exist," Pitman said.

Abortion rights advocates and the Justice Department contend that the threat of litigation under S.B. 8 has driven the few doctors who provide abortions in Texas to sharply restrict their work, forcing some of those seeking abortions to travel out of state.

But an attorney for several individuals seeking to preserve their rights to sue under the Texas law said that didn't amount to an all-out prohibition on abortions.

"This is not a virtual ban or near-total ban on abortions in Texas," said Andrew Stephens, an attorney supported by America First Legal, a group formed by former aides to former President Donald Trump.

Stephens said Texas clinics are still doing between about 40 percent and 60 percent of the number of abortions done prior to S.B. 8 taking effect.

"The effect is much less severe than they’ve told this court. … Many abortions still are being performed," said Stephens. "We don't think they've met their burden."

However, Netter argued the Constitutional rights of women seeking to end a pregnancy after that point are still being violated, even if some abortions are going forward when women are less than six weeks pregnant.

Pitman didn't indicate how long he would take to rule on the federal government's request. It also remains unclear exactly what any injunction would look like. One possibility is it might cover state judges or court clerks. But at this early stage of the case, it wouldn't be a final resolution of the legal issues. Thompson suggested that meant the law could still affect the actions of abortion providers, regardless of what the judge does now.

"The prospect of future liability … will continue to exist regardless of whether an injunction issues," he said.

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