Texas abortion law appears designed to avoid challenge, judge says

A federal judge weighing in on whether to temporarily stop a Texas law restricting abortions said it appears to have been designed to avoid lawsuits against the state.

“In fact, I think that’s what this whole law was designed to do – to find a state attorney who would isolate the state from that kind of judicial review that would normally exist,” US District Judge Robert pitmanin Austin said Friday during a hearing on Zoom.

Enforcement is the responsibility of citizens who take legal action to collect $ 10,000 in bounties for each illegal proceeding, a provision the Obama-appointed judge called “highly unusual.” Pitman ended the hearing without commenting on a request for a temporary injunction from the US Department of Justice that would put the law on hold while the case progresses.

Texas argued at the hearing that the department’s lawsuit should be dismissed because the state is not enforcing the ban and therefore cannot be prosecuted. The United States says Texas can be sued because any private citizen who enforces the ban are only agents of the state.

“What do you do with the argument that the very idea of ​​the law was to put an ordinary citizen in the place of the state?” Pitman asked Will Thompson, an attorney general for Texas. Ken paxton.

“We would respectfully disagree with this characterization,” said Thompson. “We do not believe that private plaintiffs are put in the place of the state. These types of laws are not as unusual as the opposing lawyer suggests.

The law, which came into effect on September 1, prohibits the procedure after about six weeks of pregnancy, before most women know they are pregnant. It bans abortions in Texas after detection of fetal heart activity and makes no exceptions for rape or incest. It also allows individuals to sue doctors and others suspected of violating the ban and to profit from the litigation.

QuickTake: How Texas Abortion Law Turns The Public Into Enforcement

During the hearing, the lawyer for the Ministry of Justice Brian Netter said the law was designed to “overrun the federal government” in attempting to prevent a court challenge to the constitutionality of the ban. He called the state’s actions “aggressive and terrifying.”

Netter also said the case could have an impact far beyond reproductive rights.

“The precedent set by this case will dictate whether the set of rights guaranteed by our national pact are reliable or can be manipulated into oblivion by subversive state action,” Netter said.

The ban is an “open threat to the rule of law,” he said. Although this case concerns abortion, “it is not difficult to imagine other laws,” written in the same way, designed to create a crippling effect on other constitutional rights, such as the freedom of speech. expression, Netter said.

Thompson said the ban does not relate to self-defense justice, that it is not unusual for state law to allow enforcement by private citizens, and that no injunction can be issued against a government employee.

The state also argued that the Justice Department does not have the power to prosecute to protect a constitutional right to abortion in the first place. While the 14th Amendment to the Constitution has been interpreted as guaranteeing access to abortion, only Congress can empower the Department of Justice to sue to enforce such a right by creating a “cause of action”, he said. Thompson said.

Congress “did not provide any for this specific type of case,” Thompson said, adding that the Justice Department’s assertion that he had always had the right to sue “cannot be just”.

The case is US v. Texas, 21-cv-00796, US District Court, Western District of Texas (Austin).

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Peter Jeffrey, Steve Stroth

© 2021 Bloomberg LP All rights reserved. Used with permission.

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