Texas Judge Presses State on ‘Unusual’ Design of Abortion Law

Oct. 1, 2021, 6:26 PM

A federal judge weighing whether to temporarily halt a Texas law limiting abortions said it appears to have been crafted to avoid lawsuits against the state.

“I think that’s what this whole statute was designed to do -- to find a proxy for the state that would insulate the state from this sort of judicial oversight that ordinarily would exist,” U.S. District Judge Robert Pitmanin Austin said Friday during a hearing on Zoom.

Pitman didn’t immediately rule on the U.S. Justice Department request to put the law on hold while the case proceeds. The judge said it was “very unusual” to assign enforcement power of the law to citizens who sue to collect $10,000 bounties for each illegal procedure.

Texas argued during the hearing that the department’s suit should be thrown out because the state doesn’t enforce the ban and therefore can’t be sued. The U.S. says Texas can be sued because any private citizens enforcing the ban are merely proxies for the state.

“What do you do with the argument that really the whole idea of the statute was to put a private citizen in the shoes of the state?” Pitman asked Will Thompson, a lawyer for Republican Texas Attorney General Ken Paxton.

“We would respectfully disagree with that characterization,” Thompson told the judge, an Obama appointee. “We don’t think that the private plaintiffs are put in the shoes of the state. These kinds of laws are not as unusual as opposing counsel suggests.”

The law, which took effect Sept. 1, bans the procedure after about six weeks of pregnancy, before most women know they’re pregnant. It prohibits abortions in Texas after fetal cardiac activity is detected and provides no exceptions for rape or incest. It also allows private citizens to sue doctors and others suspected of violating the ban, and profit off the litigation.

QuickTake: How Texas Abortion Law Turns Public Into Enforcers

During the hearing, Justice Department lawyer Brian Netter said the law was designed to “outflank the federal government” by attempting to prevent a legal challenge over 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 established by this case will dictate whether the set of rights guaranteed by our national compact 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 is about abortion, “it’s not hard to imagine other laws,” written in a similar way, designed to create a chilling effect on other constitutional rights, such as the freedom of speech, Netter said.

Thompson said the ban wasn’t about vigilante justice, that it’s not unusual for a state law to allow enforcement by private citizens and that no injunction could be issued against a state employee.

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

Congress “hasn’t provided one for this specific type of case,” Thompson said, adding that the Justice Department’s claim that it has always had a right to bring these lawsuits “can’t be right.”

The case is U.S. v. Texas, 21-cv-00796, U.S. 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 L.P. All rights reserved. Used with permission.

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