A federal judge Friday questioned the controversial enforcement mechanism of Texas’ six-week abortion ban and asked whether the law made private citizens “a proxy for the state to insulate the state from the sort of judicial oversight that would exist.”
US District Judge Robert Pitman is holding a hearing Friday to consider the Justice Department’s request, in its lawsuit challenging the abortion ban, for a preliminary injunction blocking the law. The law’s design has stymied previous attempts by clinics to block it.
“My obvious question to you,” Pitman asked Texas’ attorney Friday, “if the state is so confident in the constitutionality of the limitations on women’s access to abortion, why did it go to great lengths to create this unusual cause of action rather than doing it directly?”
“I don’t think the state went to particularly unusual great lengths here,” said Will Thompson of Texas Attorney General Ken Paxton’s office.
Rather than task government officials with enforcing the ban, the Texas legislature deputized private citizens to bring state court litigation against any clinic that performs an abortion after fetal cardiac activity was detected — a point usually around six weeks into the pregnancy, but often before a woman knows she is pregnant.
Because government officials aren’t tasked with implementing the law, Texas argues that there is no one that a federal court can preemptively enjoin, the way the courts would preemptively enjoin officials from implementing the usual types of abortion restrictions that impose criminal or administrative punishments.
A key issue in the case is to whom such an injunction would apply. The Justice Department is asking that it be targeted at Texas “including all of its officers, employees, and agents, including private parties who would bring” state court enforcement action under the law.
At Friday’s hearing, Pitman asked Thompson: “Can you help me by identifying those people who you believe would be proper objects of an injunction if that relief were appropriate?”
Thomas said that because government officials are prohibited from enforcing the ban under the law, he couldn’t identify such a person.
“I don’t think any such person exists,” Thompson said.
The Justice Department, represented by Deputy Assistant Attorney General Brian Netter, said there is “no doubt under binding constitution precedent that a state may not ban abortions at six weeks.”
“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.
The Justice Department is challenging the law under the 14th Amendment — from where Supreme Court precedent on abortion is derived — and under the Supremacy Clause, which establishes that federal laws preempt state laws and regulations.
Netter said that because the law was designed to evade review by federal courts, “that makes this action by us both necessary and appropriate.”
When it was his turn to present for the state, Thompson accused the Justice Department of “hyperbole.”
“This is not some kind of vigilante scheme. It’s a scheme that uses the normal and lawful process” in Texas, Thompson said.
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