In Court Battle On Abortion Law, Texas Claims An Injunction Couldn’t Be Enforced

Texas and the U.S. Department of Justice fought in federal court Friday over Texas' controversial abortion law. The states attorney downplayed that six-week ban and suggested that he wasnt sure if an injunction against it would have any effect. This was a point the DOJ stated was not supported by facts.

Pro-abortion rights demonstrators march outside Texas State Capitol, Sept. 1, 2021 in Austin. The Washington Post via Getty Images

The Key Facts

Attorney Will Thompson from the Texas Attorney Generals Office claimed that the state would have difficulty complying with an injunction that temporarily freezes Texas Senate Bill 8(SB 8). This is because the government does not have any role in enforcing it and instead deputizes private citizens who help and aid abortions through private litigations. Thompson asked the court what they would do to comply with an order that temporarily freezes Texas Senate Bill 8 (SB 8). Thompson stated, "I don't know what we would have to do. Because the government doesnt actually have a role in enforcing the law and instead deputizes private citizens to punish those who aid and abet abortions through private lawsuits. According to the attorney, the fact that abortion providers will resume their procedures if an order is issued discredits the state's argument that an injunction would have no impact. Whole Womans Health filed a court filing Friday confirming that it will resume its abortions six weeks after an injunction has been issued. Netter claimed that Texas passed SB 8 and can reverse its effects.

What to Watch

Pitman, who was appointed in 2008 by President Barack Obama, will soon rule on whether to issue an interim injunction to temporarily stop SB 8's progress while the litigation continues. Biden's administration asked for a judge to issue an injunction that would prevent Texas judges, agents, and government officials from enforcing this law. Thompson requested Friday that any court order be as specific as possible, so the state can respond. Although Pitman rebutted Thompson's assertions that SB 8 was constitutional, the judge did not give any indications Friday about which direction he would rule. The judge asked Pitman: "If the state is so certain in the constitutionality the restrictions on women's access abortion, then why did they go to such great lengths creating this unusual private cause for action instead of just doing it directly?"

Important Background

SB 8 prohibits surgical abortions within six weeks of a woman's pregnancy. This makes illegal at least 85% of state abortions. Similar state-level abortion bans were swiftly overturned. SB 8 however, has avoided the same fate due to its lawsuit enforcement mechanism. This makes it easier to challenge the law in court, as Thompson's arguments on Friday suggest. After a separate suit brought by abortion providers was unsuccessful at the U.S. Supreme Court it was too late to challenge SB 8. This was mainly because no one had attempted to enforce it. (The plaintiffs have now requested that the court hear their case again. Because it is a violation of the federal government's sovereignty and prevents federal agencies from being based in Texas, which facilitate abortions, the Justice Department claims it has the right to strike down Texas' unconstitutional law. Friday's argument by Netter was that the law is an unprecedented attack on both the supremacy and supremacy the federal government, as well as the Constitution.

Continue reading

This is what you need know about Friday's Texas abortion law hearing (Austin American Statesman).

Biden Administration Sues Texas Over Abortion Ban (Forbes)

24 Attorneys General Ask Court To Block Texas Abortion Ban (Forbes)