AUSTIN, Texas (CN) — A federal judge in Austin is considering whether to block enforcement of Texas’ month-old ban on most abortions after lawyers for the state and Biden’s Justice Department sparred over its constitutionality at a hearing on Friday.
Attorneys for the department urged U.S. District Judge Robert Pitman to grant the federal government’s emergency request to temporarily halt the law after it sued the state last month in federal court. Pitman did not rule on the request during Friday morning’s three-hour virtual hearing, nor did he provide a roadmap for when a decision will be reached.
“I will take this under advisement,” Pitman said. “I will give careful consideration to the very important issues that you have raised and argued and we will get to work on the appropriate order in this case.”
Passed by the Republican-controlled Texas Legislature as Senate Bill 8, the Texas Heartbeat Act became the most restrictive abortion law in the country after the Supreme Court allowed it to take effect last month. It prohibits abortions once a fetal heartbeat is detected, which can occur as early as six weeks into pregnancy, unless a medical emergency necessitates the procedure.
Pitman engaged attorneys representing the state and federal government with questions throughout the hearing, particularly on the issue of the law’s unique provision allowing private citizens to sue doctors and anyone who “aids and abets” an illegal abortion.
“If the state is so confident in the constitutionality of the limitations on a woman’s access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than just simply do it directly?” asked Pittman, who was nominated to the federal bench by former President Barack Obama in 2014.
Will Thompson, deputy chief for special litigation for the Texas Attorney General’s Office, disputed that the law’s private enforcement power was “unprecedented,” but noted that he couldn’t speak to the intent of the legislators who wrote the law.
“I don’t think the state went to particularly unusual lengths here,” Thompson said. “This is not some kind of vigilante scheme, as opposing counsel suggests, this is a scheme that uses the normal and lawful process of justice in Texas.”
Brian Netter, deputy assistant attorney general for the Department of Justice, argued that the law’s private enforcement mechanism was a “ploy to keep SB 8 out of court” and an “unprecedented attack” on the federal government and the constitutional rights of women.
Netter argued that the federal government demonstrated that it is entitled to relief because the six-week prohibition amounted to an outright ban. He said state legislators knew this and passed the law anyway.
“So the state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review,” Netter said. “So far, it’s working.”
In a filing with the Supreme Court on Sept. 23, a coalition of Texas abortion providers asked justices again to take up their challenge against the Texas law after the high court’s conservative majority denied their emergency appeal without a hearing. The clinics’ lawsuit is pending in the Fifth Circuit, which is viewed as one of the most conservative-friendly appellate courts, but it won’t hear the case until at least December.
Friday’s hearing represents the first in which a court heard arguments from both the state and a challenger of the new law since it went into effect Sept. 1.
Thompson also asked Pitman to consider the “serious procedural issues” with the department’s lawsuit. But Netter said procedural obstacles should not allow the state to violate the Constitution.
“We’re suing to enforce the policy of the state of Texas, and it’s an unconstitutional policy,” Netter said. “Texas cannot hide behind what it believes to be a clever structuring of that law to deprive individuals within the state of their constitutional rights.”
The Supreme Court has not responded to the clinics’ request. The high court will hear arguments Dec. 1 over the constitutionality of a Mississippi case involving a ban on abortions performed after the 15th week of pregnancy. A decision in that matter is not expected until the end of the court’s next term in June 2022.
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