Texas abortion law: federal judge hears Biden administration’s challenge

Justice department attorney argues state ‘resorted to vigilante justice’ at hearing on Friday to consider whether legislation is unconstitutional

A federal judge considered whether to block Texas’s six-week abortion ban on Friday, the most restrictive anti-abortion law in force in the US, in a suit brought by the Biden administration.

Since September, the law has banned the vast majority of abortions and sent women racing to get care beyond the borders of the nation’s second most populous state.

“A state may not ban abortions at six weeks. Texas knew this, but it wanted a six-week ban anyway, so 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,” justice department attorney Brian Netter told the court.

The suit seeks to land the first legal blow against the Texas law known as Senate Bill 8 (SB8), which thus far has withstood an early wave of requests to block it, including at the supreme court.

The law, signed by the Republican governor, Greg Abbott, in May, prohibits abortions in Texas once embryonic cardiac activity is detected, usually around six weeks. That is before some women know they are pregnant, and 18 weeks before a fetus can survive outside the womb.

The case was heard by Robert Pitman, a US district judge and appointee of Barack Obama. The landmark 1973 supreme court decision Roe v Wade guarantees women the right to an abortion until that point, called “viability” by courts and generally understood to be about 24 weeks gestation.

However, lawmakers designed Texas’s law to skirt judicial review by banning state officials from enforcing it. Instead, it deputizes private individuals to sue and seek a $10,000 penalty for anyone who aids a woman in obtaining an abortion, from doctors to cab drivers.

“This is not some kind of vigilante scheme,” said Will Thompson, defending the law for the Texas attorney general’s Office. “This is a scheme that uses the normal, lawful process of justice in Texas.”

To date, at least two lawsuits have been filed against a Texas doctor who publicly said he performed an abortion that violated the law. In an essay published by the Washington Post, Dr Alan Braid wrote: “I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care.”

Both suits were both filed by disbarred out-of-state attorneys. Another precedent-shattering aspect of Texas’s law allows anyone, anywhere, regardless of their connection to an abortion, to sue those who help a woman terminate a pregnancy.

The law was allowed to go into effect because the supreme court refused to block it, while not commenting on the constitutional merits, in a stunning five-four decision by the court’s conservative majority.

In the short time since the law took effect on 1 September, abortion providers said “exactly what we feared” has become reality, and described Texas clinics in danger of closing, while neighboring states struggle to keep up with a surge of patients driving hundreds of miles to seek abortion care. Other women, they said, are forced to carry pregnancies to term.

“Abortion care has almost completely stopped in our state,” Dr Ghazaleh Moayedi, a Texas abortion provider, told the US House oversight and reform committee during a hearing over abortion access on Thursday.

It is unclear how soon Pitman will decide. It is also unclear how quickly any of Texas’s nearly two dozen abortion clinics would move to resume normal operations if the law is set aside. Texas officials would probably seek a swift reversal from the conservative fifth US circuit court of appeals, the same court which allowed the restrictions to take effect, and set up the supreme court’s decision not to block the law.

The Texas law is one of the biggest tests of abortion rights in the US in generations, and it is part of a decades-long push by Republicans nationwide to end access to abortion.

In December, the US supreme court will hear arguments on whether Mississippi can enforce a 15-week abortion ban. Like Texas’s SB8, the law blatantly violates the essential holdings of Roe v Wade, by banning abortion nine weeks before a fetus can survive outside the womb.

The decision, likely to be released in June 2022, will have national ramifications for women’s ability to access abortion. More than half of US states are openly hostile to abortion rights, even as 59% of Americans say abortion should be legal in all or most circumstances.


Jessica Glenza and agencies

The GuardianTramp

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