Justice Department presses case to stop Texas abortion law

Federal judge weighs whether the government has the right to bring the lawsuit and whether courts have the authority to block the Texas law

Protesters hold placards in front of the Pennsylvania state Capitol during the Rally for Reproductive Rights on Sept. 12, organized after the U.S. Supreme Court refused to block a Texas law prohibiting almost all abortions. (Paul Weaver/SOPA Images/LightRocket via Getty Images)
Protesters hold placards in front of the Pennsylvania state Capitol during the Rally for Reproductive Rights on Sept. 12, organized after the U.S. Supreme Court refused to block a Texas law prohibiting almost all abortions. (Paul Weaver/SOPA Images/LightRocket via Getty Images)
Posted October 1, 2021 at 3:38pm

The Justice Department urged a federal judge Friday to halt a new Texas abortion law that it called “unconstitutional on its face” and argued that the government can file a lawsuit against the state to stop “a series of tricks to try to evade the Constitution directly.”

DOJ attorney Brian Netter, at a remote hearing before U.S. District Judge Robert Pitman in Texas, said the United States doesn’t file this sort of lawsuit frequently or lightly.

But Netter said the federal government must do so because the Texas law that went into effect four weeks ago violates the nationwide constitutional right to abortion and, by design, outflanks the typical legal process for women and abortion providers to challenge it.

Without the government’s lawsuit, Netter said, the United States would return to an era in which states felt it was OK to pass laws that would essentially nullify rulings from the Supreme Court, such as those that established the right to seek an abortion prior to viability, or when the fetus could live outside the womb.

“It’s not hard to imagine other laws that could be written in a way to create the same result,” Netter said. He used an example of a law that fined people $1 million for criticizing the president.

Pitman must decide whether the government has the right to bring the lawsuit, whether courts have the authority to block the Texas law, whether the law should be halted and, if so, what sort of injunction would accomplish that. He did not immediately issue a ruling, which will almost certainly be appealed by either the United States or Texas.

The state law, known as SB 8, all but bans abortion after about six weeks of pregnancy — which the government says is about 85 percent to 95 percent of all abortions in that state, and at a time before many women know they are pregnant.

But Texas officials don’t enforce the law. Instead, the law empowers private citizens to file lawsuits with a potential award of at least $10,000. That has created a procedural legal tangle for the abortion rights advocates who seek to challenge it on an emergency basis, particularly about how a court would order it to not go into effect.

The Supreme Court majority cited the “complex and novel” procedural questions in a decision four weeks ago not to step in and stop the law. The Justice Department filed its lawsuit after that, but that move faces complex and novel legal questions of its own.

Pitman questioned Netter about whether there was a limit to the authority the United States claimed in this lawsuit. “Because it’s pretty expansive, right?” Pitman said.

Netter responded that it was only because the law prevented women in Texas from the typical process to stop implementation of an unconstitutional abortion law.

Pitman asked the lawyer from the Texas attorney general’s office, Will Thompson, a question that cuts to the quandary about that for the court system. Could Thompson identify the people responsible for enforcing the law that the judge could name in an injunction to not enforce it?

Thompson responded that there are no public officials who enforce the law, which actually prohibits state officials from doing so. “I don’t think there is someone I can identify for the court, because I don’t think such an individual exists,” Thompson said.

And Pitman asked Thompson why legislators went to “such great lengths” to have private citizens enforce the law instead of state officials if the state was confident the law was constitutional.

“I can’t speak to the minds of legislators,” Thompson said. “I don’t think the state went to particularly unusual lengths here.”