AUSTIN, Texas — Lawyers with the U.S. Justice Department will be in federal court in Austin on Friday seeking an emergency court order to block the enforcement of a Texas law that bans most abortions.
The federal government sued the state over the law earlier this month, arguing that prohibiting an abortion once fetal cardiac activity can be detected is "in open defiance of the Constitution" and that by leaving enforcement of the ban up to private individuals, the law seeks to skirt traditional avenues of judicial review.
Government lawyers asked U.S. District Judge Robert Pitman to issue a temporary restraining order or a preliminary injunction that would prevent the law from being enforced while the lawsuit is decided.
Pitman scheduled a hearing on the request for 9 a.m. Friday, over objections from the federal government that a decision should happen sooner. Pitman said the case "presents complex, important questions of law that merit a full opportunity for the parties to present their positions."
Texas has filed a motion to dismiss the Justice Department request, arguing that the law, known as Senate Bill 8, is lawful and that the federal government has not clearly shown that the law is unconstitutional. In the motion, Texas Attorney General Ken Paxton also argues that the federal government lacks standing to challenge the law.
Examining the Texas abortion law
Landmark U.S. Supreme Court decisions have established the legal right to an abortion and prohibit the government from creating obstacles to access "before fetal viability," and Paxton argues in the motion that SB 8 does not create an undue burden on women in Texas.
"Texas has not banned all pre-viability abortions," the motion reads. "Instead, Texas has enacted a private cause of action to encourage, insofar as possible, that any abortions take place before a heartbeat is detectable. Previability abortions remain an option, most obviously before a heartbeat is detectable."
Fetal cardiac activity typically can be detected by about six weeks into pregnancy, often before most women are aware that they are pregnant. The law includes an exception for medical emergencies, but not for cases of rape or incest.
Unlike other abortion restrictions, government officials are expressly prohibited from enforcing the law.
Instead, any private individual can file a civil lawsuit against an abortion procedure or person seen as aiding and abetting an abortion in violation of the law. Successful plaintiffs can collect at least $10,000 from defendants, who could be sued multiple times over the same violation for up to four years after the procedure.
In its request for emergency court action, the federal government argued that the state "has deputized ordinary citizens to serve as bounty hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who facilitate a woman's exercise of her constitutional rights."
At least two such lawsuits have been filed since the law went into effect Sept. 1. A man from Arkansas and another from Illinois sued a San Antonio doctor who admitted to violating the ban in an opinion piece in The Washington Post.
In the state's motion for dismissal, Paxton argues that any injunction or restraining order issued against the state would be "useless — because the State does not enforce the Heartbeat Act."
Instead, Paxton argues that the federal government's real issue is with private people who may bring lawsuits against providers and the state courts that may consider those matters.
Texas abortion law could have chilling effect, groups say
Planned Parenthood, Whole Woman's Health and other abortion providers are complying with the law, citing the threat of litigation as too big a risk to attempt to skirt the law.
"We're still open, our clinics are open, and we are having patients come in for an assessment so we can figure out whether they can have an abortion in Texas or if they'll have to go somewhere else and what options are available to them," said Andrea Ferrigno, corporate vice president for Whole Woman's Health. "That's been a lot of what we've been doing."
Advocates at organizations that support patients seeking an abortion also have modified their practices to avoid violations of the law, which allow lawsuits to be brought against any person who aids or abets an abortion, including organizations that support victims of sexual assault and abortion funds, which help low-income clients access care.
But Paxton argues that a court order blocking enforcement of the law would not change the circumstances of abortion providers.
"According to the federal government, abortion providers are 'chilled' by the prospect of future liability in state court," the motion reads. "But on these facts, a preliminary injunction would not 'unchill' abortion providers. In light of the strong possibility that any preliminary injunction would eventually be stayed or reversed, allowing heartbeat suits in state court to proceed, abortion providers would still face the prospect of future liability."
Legal venue dispute
At the heart of the federal government's request for emergency action is an argument that Texas has prevented legal challenges to its law through the federal system by creating a civil cause of action, instead of enforcing the provision itself.
In its filing, the Justice Department describes the law as "an unprecedented scheme that seeks to deny women and providers the ability to challenge (the law) in federal court" and therefore looks to "shield a plainly unconstitutional law from review."
But Paxton said that point is moot.
"True, some abortion providers might prefer to be federal-court plaintiffs rather than state-court defendants, but that preference is not a constitutional right," the Texas motion reads.
Paxton goes on to say that Pitman's court should not be able to consider the federal government's request and weigh in on the constitutionality of a law that the party it is suing (the state of Texas) is not able to enforce.
"It simply shows that those other cases would be the proper cases for deciding the constitutionality of the challenged statute," the motion reads.
