WASHINGTON (Friday arguments over the Justice Departments attempt to stop Texas' six-week abortion ban were halted by Robert Pitman, US District Judge. Pitman said that he had an obvious question.
Texas may be so certain in the constitutionality a law prohibiting doctors from performing abortions until the sixth week of pregnancy. The judge then asked why the state went to such lengths to prevent it being enforced directly.
Pitman pointed out the unique nature of Texas' SB 8. It hits at a core issue which has dominated debates over the law: whether Texas had found an alternative way to structure an abortion ban that would prevent a constitutional challenge by the state if it attempted to enforce it. State laws banning abortions in the early stages of pregnancy have been repeatedly overturned by courts. Enforcement is left to prosecutors and other government officials. Instead, SB 8 allows individuals to sue any person they suspect of aiding or performing an abortion.
Pitman did not say when or how he would rule. However, his question suggested that he was skeptical of Texass assertion that SB 8 was not intended to stop legitimate legal challenges to the law. Texas claims that anyone can raise the constitutional question to defend themselves if sued. However, Pitman said that the Justice Department and abortion providers can't file lawsuits challenging the validity of SB 8.
Texas has the first state to implement a 6-week abortion ban in decades. This ban was put in place after Roe v. Wade, which ruled that everyone has the right to an abortion. Also that bans that prevent a fetus from being viable at 24 weeks are constitutional. In a second case, the justices will revisit Mississippi's 15-week abortion ban. However, it is still binding.
Pitman asked Will Thompson from the Texas attorney generals' office why Texas did not enforce SB 8. He responded by disputing that SB 8 was unique, and saying there were other laws that allowed private citizens to take action. The state could not enforce the ban. However, that wouldn't resolve the procedural issues that Texas claims are fatal to its DOJ lawsuit against Texas. Thompson also denied that the law was a prohibition since it did not prohibit all abortions.
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Pitman was asked by the Justice Department to place a preliminary injunction blocking the law's implementation while the case continues. Pitman was told by Brian Netter, a senior Justice Department official, that it is unusual for the federal government not to sue over state laws. However, he said that the United States has the power to intervene when a law is clearly inconstitutional, and the individuals who are affected cannot go to court to defend their rights.
Netter stated that there is no question that states cannot ban abortions after six weeks of pregnancy under the binding constitutional precedents. Texas knew this but wanted a six week ban. The state then resorted to a new form of vigilante justice.
Friday's hearing was not only the latest stage in the legal battle over SB 8, but also the first month since the law became effective. SB 8 prohibits abortions in Texas. It does this when fetal heart activity is detected, usually around the sixth week. Private individuals can enforce the law by suing doctors who perform abortions and anyone who aids a pregnant woman in obtaining the procedure. A person who has had an abortion is not entitled to any claims.
These types of claims are encouraged by the law, which allows plaintiffs to seek at least $10,000 in damages and their legal fees if successful. There is no penalty for those who lose.
Pregnancy terms start on the first day of a person's most recent period. Six weeks typically corresponds to two weeks after a missed period. This is often when many people realize that they are pregnant. The early-term state abortion bans often refer to themselves as heartbeat laws. Thompson repeatedly used the term heartbeat laws during Friday's arguments, but this is misleading since a fetus' heart valves still havent formed at this point. An ultrasound at that stage detects electrical activity.
Although only a few lawsuits have been filed under the law so far, SB 8 has prevented the majority of Texas abortions. Some pregnant Texans are now traveling to other states in order to get abortions. However, this is only for those who can afford it. Other people are looking at other options, such as self-managing the procedure or ordering medication from a medical professional.
Pitman did not ask many questions during the three-hour hearing. Netter's only question was about what DOJ thought were the limits of federal government intervention to challenge state laws. Pitman stated that DOJ seemed to have a lot of power. Netter said that it all depended on the state law in question whether it was clearly violative of the Constitution, whether the effect was widespread, and most importantly, if individuals were unable to protect their rights independently. He claimed that SB 8 fulfilled these criteria.
Texas has argued that the federal government does not have any interest in SB 8 and cannot bring a suit. DOJ could not sue Texas to stop the law from being enforced, as private individuals are the actors.
The Justice Department argues that SB 8 makes private citizens state actors since they are empowered to enforce Texas' interest in restricting abortion access statewide. According to the government, this would mean that anyone could not file a lawsuit under the law if an injunction is issued against Texas or its agents. Netter noted Friday that plaintiffs don't have to show a personal connection with the person being sued or to the abortion at issue.
Thompson replied that, although there was no requirement for a direct relationship to reduce the burden of litigation in the law, it was possible for plaintiffs to have their own reasons for suing. He cited would-be grandparents in his example of parties that might be interested in an abortion of a pregnant woman.
Pitman also asked Thompson, in an exchange that highlighted the novelty of Texas's efforts to accomplish SB 8, what would happen if a judge issued an order that prevented Texas from implementing SB 8.
Thompson replied, "Honestly, your honour, I'm not sure." Pitman replied that Texas would like to know what the judge meant and who an order was applied to.
After a failed last-ditch attempt by abortion providers to petition US Supreme Court to intervene, SB 8 went into effect on September 1. Pitman, who is also presiding in the provider case, had already entered an order preventing him from making any attempt to stop the law's implementation. SB went into effect at midnight without any action from the justices. The Supreme Court issued an order the next night confirming that the majority of justices had rejected the petition of abortion providers to intervene in the litigation.
The providers case was stalled before 5th Circuit. Attorney General Merrick Garland announced that on September 9, the Justice Department would file a lawsuit to challenge SB 8. Pitman was given the motion because it was related to provider case. Pitman requested an injunction from DOJ on Sept. 14.
The judge heard Friday from Andrew Stephens (a lawyer representing a group who claimed they want to use the law to sue actors for aiding post-week-six abortions). Jonathan Mitchell, a Texas attorney identified by The New York Times as being the architect of SB 8, represents this group of interveners.
Oscar Stilley, one private individual who brought one of few civil lawsuits under SB 8 also intervened. He was allowed a short window to argue Friday and said that he would use his papers. Stilley sued Dr. Alan Braid. He is a San Antonio doctor who wrote an opinion explaining why he continued to perform abortions that were in violation of SB 8. Stilley's case was representative of Texas law. Stilley doesnt reside in Texas and has not been connected to Braid.
Pitman's decision is final, and the loser will likely appeal to the 5th Circuit. Texas asked Pitman to also hold any injunction orders on hold if he sides with the Justice Department so that Texas can appeal the decision without having to change the status quo.
Pitman could enter an injunction against Pitman and refuse to place it on hold. It is not clear whether providers will resume abortions immediately. Texas could petition the 5th Circuit for an immediate intervention. SB 8 also contains a provision that allows a person to be sued for violating law if they aid in abortions based on a court ruling that was later overturned. Pitman could have entered an injunction, but the 5th Circuit reversed it. A doctor who performed an abortion in the interim period of the law cannot claim Pitman's order as a defense.
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