DOJ and Texas face off in court over restrictive abortion law

DOJ has argued the law blatantly violates the Constitution.

October 1, 2021, 4:18 PM

Lawyers from the Justice Department and the state of Texas squared off in court Friday as the Biden administration seeks an order that would halt enforcement of the state's restrictive abortion law that took effect exactly one month ago.

It was the first court hearing on the matter and presents the first opportunity for a judge to get abortion rights fully restored in Texas, at least temporarily.

In an overnight filing, DOJ officials accused Texas of mounting a "brazen" effort to enact a law purely designed to obstruct women's right to an abortion while evading all traditional methods of judicial review.

"S.B. 8’s novel enforcement scheme is calculated to accomplish what no state should be able to do in our federal system: deter, suppress, and render moot rights guaranteed by the Constitution of the United States," department officials said in its filing. "The State does not dispute that S.B. 8 has virtually eliminated previability abortions after six weeks of pregnancy in the State. Moreover, the approach Texas has taken need not be confined to the abortion context. If this mechanism works here, it would serve as a blueprint for the suppression of nearly any other constitutional right recognized by the Supreme Court but resented by a state government."

SB8, or the 'Texas Heartbeat Act,' bars physicians from providing abortions once they detect a so-called fetal heartbeat -- which can be seen as early as six weeks into a pregnancy. But the language of the law makes it so private citizens can sue anyone they "reasonably believed" provided an abortion, and effectively removes any government officials from being part of its enforcement.

Congresswoman Carolyn Maloney speaks during a press conference with members of Trust Respect Access, a Texas-based reproductive rights organization, Sept. 30, 2021, in Washington, D.C.
Allison Bailey/ZUMA Press via Newscom

Attorney General Merrick Garland announced last month that the Justice Department would sue Texas over its law just one week after the U.S. Supreme Court let it take effect. Soon after, the department filed for an emergency injunction seeking to halt enforcement of the law entirely as the legal fight plays out.

In a filing Wednesday, Texas officials urged District Judge Robert Pitman, a 2014 Obama-appointee, who consented to rare live streaming of the hearing on Zoom to members of the press given the high public interest, to dismiss DOJ's request for an injunction -- arguing the Biden administration had no standing to bring it before a federal judge and that the matter should instead be resolved before state courts.

"The federal government asks the Court to dispense with the normal cause-of-action requirement based on unfounded fears that the Texas Heartbeat Act will otherwise 'evade judicial review.' Nothing could be further from the truth," officials wrote in their filing. "The constitutionality of the Texas Heartbeat Act can be reviewed in the same way that virtually all of state tort law is: State-court defendants raise constitutional defenses before neutral judges sworn to follow the U.S. Constitution and, if necessary, appeal to the U.S. Supreme Court."

Also in their brief, Texas officials made an eyebrow-raising counterargument to DOJ's contention that the abortion law hinders interstate commerce -- the state instead pointed to reports of women seeking an abortion being forced to travel out of the Texas to Oklahoma, saying that "is stimulating rather than obstructing interstate travel."

Appearing on behalf of the state of Texas, Will Thompson, deputy chief for litigation in the AG's office, said the DOJ's allegation that the state enabled an "unprecedented scheme of vigilante justice" was "completely untrue."

"There's nothing unprecedented about private individuals enforcing state tort law rights in state court, and state tort law defendants being allowed to raise constitutional defenses, and if necessary, appeal up to the state court system to the US Supreme Court," Thompson said. "Nothing happens to a defendant in a heartbeat lawsuit until a state court hears the case. This is not some kind of vigilante scheme."

The judge pressed Thompson about the idea that so-called "bounty hunters" can bring suit against an abortion provider without experiencing any individual injury themselves.

"What do you say about the idea of private parties acting as proxies for the state? That's what the statute is designed to do. What do you do with the idea that this is putting private individuals in the shoes of the state?" Pitman said.

Later he asked: "If the state's so confident in the constitutionality of the limitations on a woman's access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than just simply doing it directly?"

A counselor at Houston Women's Reproductive Services explains how to take abortion inducing medication and offers counseling to a patient prior to her taking the first pill at the clinic for her medical abortion, in Houston, Texas, Sept. 30, 2021.
Evelyn Hockstein/Reuters

The judge questioned who could technically be a defendant to face an injunction over the law if not the state itself. Thompson responded that technically nobody could be enjoined because of how the law is crafted to prevent any state official, other than judges, from being responsible for enforcement.

Thompson said he disputed the characterization that the statute effectively deputizes private citizens to take on the role the state would normally take -- and said that citizens would have their own interests in bringing lawsuits against abortion providers.

He also pushed back on the Justice Department's contention it has standing to sue Texas based on injuries caused by the abortion law, arguing that nobody in the state has been specifically punished yet as a result and accused the federal government of seeking "extraordinarily broad power" by claiming the ability to usurp Texas state law.

"The United States is apparently asking the court to issue an injunction to stop the execution of a judgment that does not exist," Thompson said. "It's entirely speculative whether such a judgment would exist, will exist at any point, or if it existed whether it would violate the federal Constitution."

Thompson also attempted to argue that there's no "near-total ban" on abortion at all, and that women in the state are not unduly burdened in any way.

DOJ Deputy Assistant Attorney General Brian Netter said during his opening argument in the hearing that there is "no doubt under binding constitutional precedent that a state may not ban abortions at six weeks. Texas knew this, but it wanted a six week ban anyway."

"So the state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review," Netter said.

Netter said the administration didn't bring the suit "lightly" but that the rare step is necessary -- zeroing in on SB8's enforcement mechanism as "depriving the ability [of a woman or clinic] to redress" a constitutional violation.

Netter said this isn't so much about the abortion restriction itself -- which he said is plainly unconstitutional -- but the "mechanism" Texas is using, which denies constitutionally protected rights. This is "an end run around the Supremacy Clause," he said. "The U.S. surely has an interest in defending and upholding the supremacy of the Constitution."

Netter argued that Texas' efforts so far are "working" and pointed to recent reports of women seeking abortions being forced to flee the state "under sometimes harrowing circumstances" to get care.

Arguing that Texas' law "imperils the supremacy clause of the U.S. Constitution," Netter argued the DOJ was a "proper plaintiff" because of the Heartbeat Act's "unprecedented attack on the supremacy of the federal government and the federal Constitution."

Students of University of Houston walked out of their classes on Sept. 30th, 2021, and gathered in the rain to stage a demonstration in opposition of Texas Senate Bill 8 which bans all abortion after six weeks of pregnancy.
Reginald Mathalone/NurPhoto via ZUMA Press

He noted that the law has already achieved its desired effect, referring to one provider who has already been sued for performing an abortion after the Heartbeat Act's enactment. The former attorney who brought the suit, Oscar Stilley, appeared as an intervenor at Friday's hearing. Stilley has said he does not oppose abortions but brought the suit to force a court review of the law.

In his argument, Netter also sought to frame the potential ramifications of similarly crafted laws being allowed to take effect in other states, "so as to create the same result -- to create unconstitutional ends through deterrence."

Pitman asked Netter what limits there are on DOJ's claims that it has the authority to challenge a state law like Texas', and described the DOJ's theory in the case as "pretty expansive."

Netter responded that such a challenge would based on the law being in violation of the Constitution, having a major effect on the state's citizens and, most notably, preventing citizens from having the ability to vindicate their rights -- all of which he said the Texas law does.

"What's unique and what's different about this law is that it specifically deprives those who are affected by the law to have an ability to obtain the redress that is necessary in order to defend the Constitution," Netter said.

After returning from recess, Thompson from the Texas AG's office asked the judge that if he rejected the state's arguments that he also grant a stay pending appeal -- which would leave the abortion law in place at least until it is argued before the 5th Circuit Court of Appeals.

Pitman then asked Thompson what actions he believes the state would have to take if he granted the government's request for an emergency injunction, to which Thompson answered, "Honestly, Your Honor, I'm not sure."

Abortion rights activists rally at the Texas State Capitol, Sept. 11, 2021 in Austin, Texas.
Jordan Vonderhaar/Getty Images

Thompson said the state's position remains that it has no role in enforcing the law so it's not clear how it would play a role in enjoining any private citizens from taking advantage of it.

Netter, in his response to Thompson's argument, called it "stunning" that Thompson said the state took serious efforts to comply with Supreme Court precedents in enacting the abortion law.

"It doesn't take a lot of reading between the lines to see what the state's objectives were," Netter said. "Why would the state of Texas have an interest in adopting a stated policy, a public policy that the state itself has no authority to enforce?... There's no answer to the question of why they decided to structure the law this way other than because it was trying to avoid the sort of constitutional litigation that any observer could have told you would lead to a speedy injunction of a six-week abortion ban."

Netter described Texas' argument that no injunction could be enforced against the law as "aggressive and terrifying."

"...Such an argument is that a state can pass a law that actively violates the Constitution and deprives individuals of constitutional rights without any recourse, I think that's their position," he said.

In adjourning the hearing, Pitman said he would take all parties' arguments under advisement but did not give any specific timeline on when he would make his decision on the DOJ's request for an emergency injunction.

Any ruling is likely to face a quick appeal from either Texas or the DOJ to try and put the matter before the 5th Circuit Court of Appeals, which in a separate challenge previously ruled the law could take effect.

ABC News' Devin Dwyer contributed to this report.

Related Topics