- The Washington Times - Friday, October 1, 2021

President Biden’s Justice Department argued before a federal judge on Friday that a new Texas law banning abortions after a fetal heartbeat is detected unlawfully supersedes women’s constitutional rights.

The state law bans abortion at around six weeks of pregnancy, which is about the time a fetal heartbeat is heard. But the Justice Department said Supreme Court precedent dating back decades gives women a national right to an abortion up until a fetus is viable, which is usually around 24 to 28 weeks.

“Texas has made clear it does not want to follow the Supreme Court‘s abortion precedents,” said Brian Netter, who argued before the court representing the Justice Department.

Mr. Netter said that Texas’ law threatens the Constitution and would have a broad impact, asking the court to block the law from being enforced. U.S. District Judge Robert Pitman, an Obama appointee, is presiding over the case.

But attorneys for the state of Texas told the court the Justice Department is using “inflammatory rhetoric,” arguing private individuals can lawfully sue to enforce a state law, which is how the Texas heartbeat legislation operates.

State officials don’t enforce the abortion ban, but private citizens can sue if they have knowledge a provider illegally performed an abortion after a heartbeat was detected.

Texas contends the federal government is not hurt by the law and has no standing in court to sue the state officials to undo its law.

“There is no public official who enforces the Texas Heartbeat Act,” said Will Thompson, who represented Texas, telling the judge an injunction halting the state’s legislation in its entirety would be inappropriate.

Judge Pitman questioned Mr. Thompson about the Justice Department’s argument that the law is designed to find a “proxy” for the state to protect it from judicial oversight. Mr. Thompson said he disagreed with that characterization.

“We don’t think that the private plaintiffs are put in the shoes of the state,” he said, adding that the law is “not as unusual” as the Biden administration Justice Department claims it to be, noting other areas of law that allow private citizens to bring lawsuits.

It is unclear when the judge will issue a ruling.

Friday’s court arguments came exactly one month after the law, known as Senate Bill 8, went into effect on Sept. 1. The Supreme Court declined to block its enactment, leaving the legislation in place while litigation against it continues in lower courts.

Abortion providers challenged the law initially — prior to the Justice Department filing its separate lawsuit — and the providers have asked the high court to prevent its implementation before a lower court issues a ruling.

The justices, in declining to halt its enforcement, did not resolve whether the law was constitutional, but the court noted the abortion providers fighting it had sued defendants who are not likely to enforce the law.

The abortion providers had sued state and local officials, but under SB 8, it would be private citizens bringing the lawsuits against the providers. Anyone who successfully sues someone who assists in an abortion after six weeks would receive at least $10,000.

Their case is currently pending before the 5th U.S. Circuit Court of Appeals.

The Texas law bans most pre-viability abortions, including in instances of rape or incest, a point of contention with pro-choice advocates. 

Since the Supreme Court decided in 1973 that women had a right to abortion in the case of Roe v. Wade, pro-life advocates and conservative states have aimed to chip away at that ruling. Texas is not alone in its recent attempt.

The Supreme Court has agreed to decide if Mississippi’s ban on abortion after 15 weeks runs afoul of its 1973 ruling in Roe v. Wade during its next term, which begins next week. The case will be heard in December with a ruling expected in June.

Unlike in the Texas case, lower courts blocked the Mississippi law from taking effect, but the Supreme Court agreed to review that move.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

• Emily Zantow can be reached at ezantow@washingtontimes.com.

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