A federal judge presses Texas on ‘very unusual’ abortion ban that uses citizen enforcement of its restrictive state law

By Ann E. Marimow,

A federal judge pressed lawyers for the state of Texas on Friday about the “very unusual” design and legality of a ban on abortion as early as six weeks into pregnancy that makes no exceptions for rape or incest.

“If the state is so confident in the constitutionality of the limitations on a woman’s access to abortion, then why did it go to such great lengths to create this very unusual” private enforcement mechanism “rather than just simply do it directly?” U.S. District Judge Robert Pitman asked a lawyer for the Texas attorney general during a federal court hearing.

Pitman’s question came as he considered the Biden administration’s request to block enforcement of the most restrictive abortion law in the country, which empowers private citizens, rather than state officials, to take civil action against anyone who helps terminate a pregnancy after cardiac activity is detected, usually around the six-week mark.

The judge did not indicate how he would rule, but said he would give the matter “careful consideration” and “get to work” on an order. Whatever Pitman decides will almost certainly be appealed, and the issue could return to the Supreme Court.

The hearing in Austin was the latest showdown over a law specifically crafted to avoid preemptive legal action, and that since Sept. 1 has halted most abortions in the second-most-populous state in the country.

[Mark Lee Dickson paved the way for the Texas abortion ban]

In response to the judge’s question Friday, Will Thompson, a lawyer for the state of Texas, said it was not unprecedented to allow individuals to enforce state laws. “I don’t think the state went to particularly unusual lengths,” Thompson said as he urged Pitman to dismiss the lawsuit.

Justice Department lawyer Brian Netter urged the court to issue an injunction that would restore access to abortion after the six-week mark, a stage when many who are pregnant do not yet know they have conceived.

He asked Pitman to stop Texas’s “unprecedented scheme of vigilante justice designed to scare abortion providers” and others who might help pregnant individuals “exercise their constitutional rights” to an abortion procedure before viability, usually around 22 to 24 weeks.

“So far it’s working,” Netter said. “Women have been left desperate” to “get out of Texas if they even can” to terminate their pregnancies.

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In a filing before the hearing, Texas Attorney General Ken Paxton (R) said the federal government lacks legal grounds to sue, in part because Texas officials have no role in enforcing the law. Any constitutional challenge, Paxton said, must come in state court after an abortion provider is sued by a private citizen for violating the measure. At least three such lawsuits are pending. Those who bring successful civil lawsuits can receive an award of at least $10,000 for each abortion considered illegal.

Thompson told Pitman Friday that the Justice Department engaged in a “pattern of hyperbole.” He said, “This is not some kind of vigilante scheme. It uses the normal, lawful process of justice in Texas.”

One exchange between the judge and the state’s lawyer illustrated the unusual structure of the law, which specifically bars enforcement by state government officials. Pitman several times asked Thompson during the hearing about the implications of a potential injunction. If the court were to issue an order against the state, the judge asked, “what would you believe that would obligate you to do, if anything?”

“Honestly, I’m not sure, and that’s the problem,” Thompson said, noting the lack of a streamlined state court filing system for tracking lawsuits filed under the ban. The Justice Department suggested that Pitman could issue an injunction to stop proceedings initiated under the law.

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Pittman has been deeply familiar with the Texas law and the legal claims. He had rejected a request from Texas officials to dismiss an earlier lawsuit by abortion providers and advocates, who sued court judges and county clerks to prevent them from accepting lawsuits seeking to enforce the ban. In response to that lawsuit, Pitman had scheduled a hearing to consider whether to block the six-week ban before it took effect.

But the U.S. Court of Appeals for the Fifth Circuit called off the hearing pending further review. Abortion providers then asked the Supreme Court to step in. The high court’s conservative majority refused to immediately block the Texas abortion law, citing its novel design.

Abortion providers last week renewed their request to the justices, telling them that “the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability” has forced physicians and abortion clinics to stop providing abortions, despite Roe v. Wade and subsequent rulings guaranteeing a woman’s right to the procedure until viability.

As a result of the law, women in Texas are traveling long distances to Colorado, Kansas, Oklahoma and New Mexico to terminate pregnancies, providers and advocates have said. The federal case on Friday is one of several legal proceedings involving the law. It is unclear which will provide the path to most directly test the law’s constitutionality.

As of this week, at least three private citizens have filed lawsuits in state court against San Antonio doctor, Alan Braid, who came forward in a Washington Post opinion piece to say he had violated the law.

[Who is the Arkansas man who sued Alan Braid?]

The Supreme Court will hear separate arguments Dec. 1 over the recent Mississippi law banning most abortions after 15 weeks, which supporters hope will be an opportunity to overturn Roe v. Wade. That state law has been put on hold pending the federal judicial review.

Even if Pitman decides to issue an injunction after the hearing Friday, it may not provide the legal protection that physicians are seeking to once again perform abortions in Texas. If an injunction is later dissolved on appeal, lawsuits tied to the ban can be brought retroactively, up to four years after the abortion at issue has been performed.

“The threat of liability would remain given the significant possibility that a preliminary injunction would be stayed, reversed, or not turned into a permanent injunction,” Paxton wrote in his brief.

But abortion providers told the court in a filing Friday that certain clinics will resume providing abortions after the six-week mark if the judge issues an injunction. Amy Hagstrom Miller, president of Whole Woman’s Health, said neither the clinics “nor our patients can wait the months or years for completion” of all the “litigation to resume services.”