Federal judge hears arguments over Texas abortion law

WASHINGTON – A federal judge heard arguments from the state of Texas and the federal government on Friday over whether a Texas law that bans nearly all abortions in the state should be suspended while courts decide whether it is legal.

The problem is a restrictive abortion law that Texas passed in September that uses a unique legal approach – delegating private citizens to enforce it, instead of the state. The law, also known as the Texas Heartbeat Act and Senate Bill 8, has had a chilling effect, with most of the state’s roughly two dozen abortion clinics no longer offering abortion services in cases where cardiac activity is detected, which usually begins around six weeks pregnant.

The Department of Justice sued Texas last month over the law. Attorney General Merrick B. Garland called the enforcement mechanism an “unprecedented effort” to prevent women from exercising their constitutionally protected right to abortion. He said that regardless of their stance on abortion, Americans should be concerned that Texas law becomes a model for restricting other constitutionally protected rights.

In Friday’s hearing, before Justice Robert L. Pitman, Federal Court Judge for the District of Austin, Texas State Attorney William T. Thompson said the federal government had no reason to plead the case, because the law did not harm him.

“If the Texas Heartbeat Act, you know, created liability for the federal government, there would at least be potential harm that would be worth taking to court,” Thompson said. “But the Heartbeat Act doesn’t do that.”

While Senate Bill 8 was passed by the Texas Legislature and enacted by Gov. Greg Abbott, a Republican, it must be enforced by private citizens who are bringing civil suits. These private parties are entitled to $ 10,000 and their legal fees recovered if they successfully sue those assisting with an abortion that is restricted by law.

This makes the Texas law unique from those restricting access to abortion that have been passed in other states, all of which have been suspended as they made their way through the court system. Last month, the Supreme Court, largely on procedural grounds, rejected a request by abortion clinics to suspend Texas law, but made it clear that the law could still be challenged on constitutional grounds.

The state argued in a court filing that civil lawsuits brought by individuals under the new law in the state courts of Texas were “the appropriate cases to decide on the constitutionality of the impugned law.” Few such lawsuits have been filed so far.

Brian Netter, an attorney for the Department of Justice, argued Friday that, contrary to Texas claims, Senate Bill 8 directly harmed the federal government because it violated the constitutional principle that federal law had take precedence over state law in the event of a conflict between the two.

“This lawsuit is necessary because SB 8 represents an attack unprecedented to date on the supremacy of the federal government and the Federal Constitution,” Netter told the court, calling the measure “truly extraordinary law designed to overrun the government. federal”. “

He said the federal government should also challenge the law because it effectively deprived a group of citizens of a constitutional right. Abortion gained federal protection in 1973, in a landmark Supreme Court decision, Roe v. Wade.

Mr Netter argued that the structure of the law was tantamount to inducing “vigilant bounty hunters”.

Mr. Thompson disputed this qualification. “It is not some sort of self-defense system as the opposing lawyer suggests,” he said, adding that the law “uses the normal and legal process of justice in Texas.”

Justice Pitman questioned Mr. Thompson about the enforcement mechanism.

“We’re always invited to look for law enforcement people, so can you help me by identifying the people you think would be appropriate?” ” He asked.

Mr. Thompson responded that the Texas legislature “has expressly prohibited officials of any level in Texas or local government from enforcing it.” And so I don’t think there is anyone I can identify for the tribunal because I don’t think such a person exists.

Mr Netter argued that the private citizens who could possibly sue were in fact state actors. “This is not a case where a person comes to court because something has happened to them,” he said. “The alleged bogus here is the Texas belief that six week abortions are bogus. “

Mr. Thompson rejected this argument.

“We do not believe that private plaintiffs are put in the place of the state,” he said.

Mr Netter suggested that Texas was dishonest in its defense of the law.

“The state’s rhetoric is that this is all just plain ordinary, but I think we all know it isn’t,” he said.