Texas' abortion law is back in court

Oct 1, 2021
Originally published on October 1, 2021 4:09 pm

A federal judge is weighing arguments on the Justice Department's emergency request to block Texas' controversial new abortion law.

Department attorneys and lawyers for the state of Texas made their cases on Friday at a virtual hearing before Judge Robert Pitman of the U.S. District Court for the Western District of Texas. At stake is the ability of women in the country's second-largest state to get an abortion after about six weeks of pregnancy, a time before which many people don't realize they're pregnant.

"The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers," argued Brian Netter, a lawyer for the Justice Department. "So far, it's working. Women have been left desperate, forced under sometimes harrowing circumstances to get out of Texas, if they even can."

In response, Texas lawyer Will Thompson replied, "I'm sorry to see that the federal government's pattern of hyperbole and inflammatory rhetoric has continued." Thompson described the new law and its design as "normal and lawful."

The hearing comes less than a month after the Justice Department sued Texas over the new abortion law known as SB 8. The department says the law is unconstitutional and violates the Supremacy Clause as well as the equal protection afforded under the 14th Amendment.

The new Texas law, which took effect Sept. 1, contains no exceptions for cases of rape, sexual abuse or incest.

And it includes a novel enforcement mechanism: It allows private citizens to bring civil suits against anyone who helps a woman get an abortion and to collect $10,000 in damages if they prevail in court.

In its lawsuit, the Justice Department said the bill's enforcement scheme is an unconstitutional attempt to sidestep judicial review and prevent women and providers from challenging the law in federal court.

Attorney General Merrick Garland warned when he announced the lawsuit that the Texas bill and its enforcement mechanism, if allowed to stand, could provide a model for other states to pass similar laws to restrict abortion or other constitutionally protected rights.

Texas has asked the judge to be specific if he decides to block the law

The Justice Department argued the law already has had "devastating effects," saying it "has gravely and irreparably impaired women's ability to exercise their constitutional right to an abortion across the state."

The department said some women have had to travel hundreds — sometimes thousands — of miles to neighboring states in order to terminate their pregnancy.

"One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion," the department said in its filing.

It has also had an impact on the rights of women in other states, such as Oklahoma, Kansas, Colorado, Nevada and New Mexico, where Texas patients are frantically trying to get appointments, the department's filing said.

Texas has been urging the court to deny the federal government's motion and dismiss the case. Thompson, of the state attorney general's office, has asked the judge to be specific if he decides to block the law. Texas has signaled it wants to quickly seek appellate review if it loses in the lower court.

In its court papers, the state argued that the Justice Department hadn't met the legal threshold to warrant an emergency injunction, and more fundamentally, the state argued that the law is constitutional.

"The federal government has not clearly shown that the Texas Heartbeat Act is unconstitutional, that a preliminary injunction would remedy irreparable harm, or that the balance of equities and public interest favor extraordinary relief," the state said in its filing.

It also said the entire suit lacks merit because state authorities aren't the ones enforcing the new law since that falls on private citizens.

"The fact that private parties may rely on the challenged statute in other litigation does not create a case or controversy against the sovereign," Texas wrote. "It simply shows that those other cases would be the proper cases for deciding the constitutionality of the challenged statute."

So far, one abortion provider has come forward to say he performed the procedure after the Texas law took effect. He has been sued by several individuals, including Oscar Stilley, a disbarred attorney previously convicted of tax evasion, who made an appearance at the hearing Friday.

The judge offered no timetable for a decision

Pitman, who was nominated to the bench by former President Barack Obama, largely allowed the lawyers wide leeway to argue Friday, interrupting only a few times with questions.

To the Justice Department, the judge asked about any possible limits to the broad authority the federal government is claiming to sue the state. To Texas, Pitman wondered, "If the state's so confident" about the constitutionality of the limits on women's access to abortion, "why did it go to such great lengths" to fashion a private right to sue?

The judge thanked both sides and said he would take the issues under advisement. He offered no timetable for a decision.

"We will get to work on the appropriate order in this case," Pitman said. "Have a great rest of the day and weekend."

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A federal judge is weighing the Biden administration's attempt to block a controversial Texas abortion law. At stake is access to abortion in the country's second largest state. Lawyers for the Justice Department and Texas made virtual arguments today. NPR's Carrie Johnson listened in, and she's here now to talk more about that case. Hi, Carrie.


FADEL: Carrie, we've been hearing a lot about the Texas law that took effect a month ago. What's the DOJ's argument here?

JOHNSON: Abortion providers say the law effectively bans most abortions after six weeks, a time before most people even know they're pregnant. And in court today, the Justice Department said women have been left desperate, forced to flee Texas to get abortions if they have the resources to do that. The Justice Department argues this Texas law is blatantly unconstitutional under Supreme Court precedent. They say it's not even close. And Justice Department lawyer Brian Netter said the state has engaged in vigilante justice to scare abortion providers. That's because Texas has basically deputized private citizens to sue anyone who helps women get abortions - that could be doctors, Uber drivers - and then allows those plaintiffs to collect a minimum of $10,000 if they win in court.

FADEL: So how did Texas defend itself in court?

JOHNSON: Texas says the federal government, the Biden administration, is claiming pretty broad authority here, pretty broad power. Will Thompson, a lawyer for the Texas attorney general, said the Justice Department was being inflammatory and hyperbolic in its rhetoric. He says the Justice Department hasn't shown it's been injured in some way that would give it the ability to sue in federal court. And Texas also says this law is constitutional, but that if the judge disagrees, the state wants to be able to appeal quickly to the Fifth Circuit Appeals Court, which leans conservative on most social issues.

FADEL: And how are people reacting to these arguments?

JOHNSON: Whole Woman's Health, which operates clinics that perform abortions and provide other health services, has said in court papers that if the judge blocks this Texas law, even on a temporary basis, it will return to providing abortions even past six weeks of pregnancy and even if it exposes workers there to these civil lawsuits. The CEO there says women can't wait for years for all of these issues to wind their way through the courts. Now, Texas Right to Life - the group called Texas Right to Life says it thinks an impartial judge will throw out this Justice Department lawsuit. Kim Schwartz, from the Right to Life calls this case, quote, "desperate and far-fetched." And meanwhile, Leila, there are some other legal challenges underway in court, too, including at least three cases filed against an abortion provider in Texas who says he performed an abortion after six weeks. These are three challenges filed under this new law against a provider of abortions.

FADEL: Now, Carrie, there's obviously a great deal of interest in what happens next. Any idea when we might get a court decision?

JOHNSON: Judge Robert Pitman, who heard this case today, thanked the Justice Department in Texas for these arguments. He said he's getting to work on what he called an appropriate order in the case. Then he wished the lawyers a good rest of the day and a good weekend. We're not sure if that means he'll take a few days to consider these complicated issues. You could certainly understand why he would need to give this a good think. But whatever this judge does, most legal experts think this is going to wind up at the Fifth Circuit Appeals Court and ultimately the U.S. Supreme Court that will have the final word here. Really, the only question now is whether they're going to handle this matter this term or whether it kicks into the next Supreme Court term.

FADEL: That's NPR's Carrie Johnson. Thanks as always for your reporting.

JOHNSON: Happy to be here. Transcript provided by NPR, Copyright NPR.