Federal judge takes up Biden administration request to block Texas abortion law - The Washington Post

A federal judge in Texas on Friday will take up the Biden administration’s request to block enforcement of the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and makes no exceptions for rape or incest.

The hearing is the latest showdown over a law that was specifically designed to avoid preemptive legal action, and that for the last month has halted most abortions in the country’s second-most-populous state.

The Justice Department sued the state of Texas after the law took effect Sept. 1. Government lawyers are asking the court to issue an injunction to “protect the constitutional rights of women in Texas” to abortion before viability, usually around 22 to 24 weeks.

They say the U.S. has the authority and responsibility to “ensure that Texas cannot insulate itself from judicial review.”

Texas Attorney General Ken Paxton (R) is asking the judge to dismiss the case and says the federal government lacks legal grounds to sue — in part because Texas officials have no role in enforcing the law. The measure instead empowers private citizens to take legal action against anyone who helps a woman terminate her pregnancy after the six-week mark.

Any challenge to the constitutionality of the measure, Paxton says, must come in state court after an abortion provider is sued by a private citizen for violating the ban. At least three such lawsuits are pending.

Texas also rejects the Justice Department’s claim that private individuals charged with enforcing the law are “agents” of the state who could be preemptively blocked by the court from filing lawsuits against an abortion provider or clinic employee.

The case is being heard in Austin by U.S. District Judge Robert L. Pitman, who is already deeply familiar with the Texas law and the legal claims.

Before the law took effect, abortion providers and advocates tried unsuccessfully to block the measure by suing state court judges and county clerks to prevent them from accepting new lawsuits.

Pitman rejected a request of Texas officials to immediately dismiss that lawsuit, and scheduled a hearing to consider whether to block the law before it took effect.

But the U.S. Court of Appeals for the 5th Circuit called off the judge’s planned hearing pending further review, clearing the way for the law to take effect. That’s when abortion providers asked the Supreme Court to step in. The high court’s conservative majority refused to immediately block the law, citing its novel design.

Abortion providers last week re-upped their request to the justices, telling the high court that “the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability” has forced physicians and abortion clinics to stop providing abortions, despite Roe v. Wade and subsequent rulings guaranteeing a woman’s right to the procedure until viability.

Those who bring successful civil lawsuits against people who help a woman obtain an abortion in Texas can receive an award of at least $10,000 for each abortion considered illegal under the new state law.

As a result of the law, women in Texas are traveling long distances to Oklahoma, Kansas, New Mexico and Colorado to terminate pregnancies, providers and advocates have said.

The federal case on Friday is one of several legal proceedings involving the law known as Senate Bill 8. It is unclear which will provide the path to most directly test the law’s constitutionality. At least three private citizens have filed lawsuits in state court against San Antonio doctor, Alan Braid, who came forward in a Washington Post op-ed to say he had violated the law.

Separately, the Supreme Court will hear arguments Dec. 1 over a Mississippi law banning most abortions after 15 weeks, which supporters hope will be an opportunity to over turn Roe v. Wade. That law has been put on hold pending the judicial review.

Even if Pitman decides to issue an injunction after the hearing Friday, it may not provide the legal protection physicians are seeking to once again perform abortions in Texas.

If an injunction is later dissolved on appeal, lawsuits can still be brought retroactively, up to four years after the abortion at issue has been performed.

“The threat of liability would remain given the significant possibility that a preliminary injunction would be stayed, reversed, or not turned into a permanent injunction,” Paxton said in his brief.

Also participating in Friday’s hearing is the architect of the bill, Jonathan F. Mitchell, a former Texas solicitor general. Mitchell is representing three individuals seeking to preserve their right to sue under the law.

Mitchell said in a court filing that the Biden administration is asking “to enjoin every person in the world from suing to enforce” the law in “any situation even when they sue over conduct that is clearly unprotected by the constitution.”

source: https://www.washingtonpost.com/politics/courts_law/texas-abortion-austin-hearing/2021/09/30/e6fafc8c-2220-11ec-9309-b743b79abc59_story.html

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