DOJ and Texas face off in court over restrictive abortion law


(WASHINGTON) — Lawyers from the Justice Department and the state of Texas squared off in court Friday as the Biden administration seeks an order that would halt enforcement of the state’s restrictive abortion law.

In an overnight filing, DOJ officials accused Texas of mounting a “brazen” effort to enact a law purely designed to obstruct women’s right to an abortion while evading all traditional methods of judicial review.

“S.B. 8’s novel enforcement scheme is calculated to accomplish what no state should be able to do in our federal system: deter, suppress, and render moot rights guaranteed by the Constitution of the United States,” department officials said in their filing. “The State does not dispute that S.B. 8 has virtually eliminated previability abortions after six weeks of pregnancy in the State. Moreover, the approach Texas has taken need not be confined to the abortion context. If this mechanism works here, it would serve as a blueprint for the suppression of nearly any other constitutional right recognized by the Supreme Court but resented by a state government.”

S.B. 8, or the ‘Texas Heartbeat Act,’ bars physicians from providing abortions once they detect a so-called fetal heartbeat — which can be seen as early as six weeks into a pregnancy. But the language of the law makes it so private citizens can sue anyone they “reasonably believed” provided an abortion, and effectively removes any government officials from being part of its enforcement.

Attorney General Merrick Garland announced last month that the Justice Department would sue Texas over its law just one week after the U.S. Supreme Court let it take effect. Soon after, the department filed for an emergency injunction seeking to halt enforcement of the law entirely as the legal fight plays out.

In a filing Wednesday, Texas officials urged District Judge Robert Pitman to dismiss DOJ’s request for an injunction — arguing the Biden administration had no standing to bring it before a federal judge and that the matter should instead be resolved before state courts.

“The federal government asks the Court to dispense with the normal cause-of-action requirement based on unfounded fears that the Texas Heartbeat Act will otherwise ‘evade judicial review.’ Nothing could be further from the truth,” officials wrote in their filing. “The constitutionality of the Texas Heartbeat Act can be reviewed in the same way that virtually all of state tort law is: State-court defendants raise constitutional defenses before neutral judges sworn to follow the U.S. Constitution and, if necessary, appeal to the U.S. Supreme Court.”

Also in their brief, Texas officials made an eyebrow-raising counterargument to DOJ’s contention that the abortion law hinders interstate commerce — the state instead pointed to reports of women seeking an abortion being forced to travel out of the Texas to Oklahoma, saying that “is stimulating rather than obstructing interstate travel.”

Appearing on behalf of the state of Texas, Will Thompson, deputy chief for litigation in the AG’s office, said the DOJ’s allegation that the state enabled an “unprecedented scheme of vigilante justice” was “completely untrue.”

“There’s nothing unprecedented about private individuals enforcing state tort law rights in state court, and state tort law defendants being allowed to raise constitutional defenses, and if necessary, appeal up to the state court system to the US Supreme Court,” Thompson said. “Nothing happens to a defendant in a heartbeat lawsuit until a state court hears the case. This is not some kind of vigilante scheme.”

In his first question to Thompson, the judge asked who could technically be a defendant to face an injunction over the law if not the state itself. Thompson said that technically nobody could be enjoined because of how the law is crafted to prevent any state official, other than judges, from being responsible for enforcement.

Pitman then asked what he made of the DOJ’s argument that the statute effectively deputizes private citizens to take on the role the state would normally take — and Thompson said he disputed that characterization and that citizens would have their own interests in bringing lawsuits against abortion providers.

Thompson disputed the Justice Department’s contention it has standing to sue Texas based on injuries caused by the abortion law, arguing that nobody in the state has been specifically punished yet as a result.

“The United States is apparently asking the court to issue an injunction to stop the execution of a judgment that does not exist,” Thompson said. “It’s entirely speculative whether such a judgment would exist, will exist at any point, or if it existed whether it would violate the federal Constitution.”

DOJ Deputy Assistant Attorney General Brian Netter said during his opening argument in the hearing that there is “no doubt under binding constitutional precedent that a state may not ban abortions at six weeks. Texas knew this, but it wanted a six week ban 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.

Netter added that Texas’ efforts so far are “working,” and pointed to recent reports of women seeking abortions being forced to flee the state “under sometimes harrowing circumstances” to get care.

Arguing that Texas’ law “imperils the supremacy clause of the U.S. Constitution,” Netter argued the DOJ was a “proper plaintiff” because of the Heartbeat Act’s “unprecedented attack on the supremacy of the federal government and the federal Constitution.”

He noted that the law has already achieved its desired effect, referring to one provider who has already been sued for performing an abortion after the Heartbeat Act’s enactment. The former attorney who brought the suit, Oscar Stilley, appeared as an intervenor at Friday’s hearing. Stilley has said he does not oppose abortions but brought the suit to force a court review of the law.

In his argument, Netter also sought to frame the potential ramifications of similarly crafted laws being allowed to take effect in other states, “so as to create the same result — to create unconstitutional ends through deterrence.”

In his first question during the hearing, Pitman asked Netter what limits there are on DOJ’s claims that it has the authority to challenge a state law like Texas’, and described the DOJ’s theory in the case as “pretty expansive.”

Netter responded that such a challenge would based on the law being in violation of the Constitution, having a major effect on the state’s citizens and, most notably, preventing citizens from having the ability to vindicate their rights — all of which he said the Texas law does.

“What’s unique and what’s different about this law is that it specifically deprives those who are affected by the law to have an ability to obtain the redress that is necessary in order to defend the Constitution,” Netter said.

It’s not clear when Pitman might rule on DOJ’s request for an emergency injunction — though the ruling is likely to face a quick appeal from either Texas or DOJ to try and put the matter before the 5th Circuit Court of Appeals, which in a separate challenge previously ruled the law could take effect.

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