A federal judge on Friday will consider whether to temporarily block Texas’ law banning abortions after a fetal heartbeat is detected, which typically occurs about six weeks into a pregnancy.
U.S. District Judge Robert Pitman of Austin, a 2014 Obama-appointee, will hear arguments before ruling on the Biden Justice Department’s motion for a temporary restraining order and a preliminary injunction against the law.
Friday’s hearing comes a month after the law, known as Senate Bill 8, went into effect on Sept. 1. The Supreme Court ruled the following day to leave it in place while litigation against it continues.
The law bans most pre-viability abortions, including in instances of rape or incest, which the DOJ says is a violation of the 1992 Supreme Court ruling in Casey v. Planned Parenthood, which found that states cannot prohibit a pregnant woman from deciding to terminate a pregnancy before viability.
The department also claims that Texas designed the law to make it harder to challenge in court because it cannot be enforced by public officials, who typically are named as defendants in lawsuits seeking to block such laws.
Instead, the DOJ says that individuals can be deputized to serve as “bounty hunters” who can receive at least $10,000 for successfully suing providers that perform an abortion and anyone who helps someone receive a procedure.
Meanwhile, at least one Texas abortion provider admitted he violated the law and was sued by former attorneys in Illinois and Arkansas. The attorneys, however, do not support the law, and they want a judge to invalidate it.
The DOJ said in court filings this week that “if the state imposes penalties that are sufficiently punitive to deter constitutionally protected conduct and also outsources enforcement to private parties, then there is nothing federal courts can do to prevent wholesale violations of constitutional rights.”
If the law stays in place, the department argues. “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.”
The Texas Attorney General’s Office, however, filed a motion to dismiss the suit this week and said, “there is no requirement that a state write its laws to make them easily enjoined.” It also said if the judge temporarily blocks the law, providers could still be subject to lawsuits over violations that happen before a permanent ruling is made.
It is not clear when Judge Pitman will issue a ruling.
Some abortion providers have also filed lawsuits over the law, arguing it violates the high court’s 1973 ruling in Roe v. Wade, which established the right to an abortion.
On Thursday, Senate Democrats held a hearing on the Texas abortion law.
Donna Howard, a Texas state lawmaker representing District 48, said an embryo does not have a heartbeat at six weeks of pregnancy, but instead the “whoosh, whoosh” sound on a sonogram is simply cardiac activity.
“The clock runs out for most, forcing them to carry a pregnancy they do not want,” she said of women denied abortions in the state.