Texas abortion law may return to court
Judge sets Oct. 1 hearing in US challenge of ban
WASHINGTON – The Biden administration’s attempt to block temporarily Texas’ ban on abortions after six weeks of pregnancy will almost certainly put the contentious law back before the Supreme Court – possibly in a matter of weeks, legal experts said.
What happens at that point is anybody’s guess.
The Justice Department asked a federal judge in Austin Tuesday to block the ban, which became the most restrictive abortion law in the nation after the Supreme Court allowed it to take effect this month while the district court hears the federal government’s challenge.
The legal drama has once again thrust abortion to the forefront of the nation’s political and cultural wars.
“One of the things we’re asking for here is an actual legal process, which was not really afforded” in the first federal lawsuit challenging the law, Massachusetts Attorney General Maura Healey, a Democrat, told USA TODAY on Wednesday.
“We’ll be in whatever courtroom we need to be to have this addressed.”
Healey led a friend-of-the-court brief by two dozen Democratic attorneys general in federal court Wednesday calling the Texas ban a “new and dangerous frontier in the quest by some state legislatures to restrict or eliminate abortion access in violation of well-established law.”
Five conservative Supreme Court justices shot down an earlier effort to halt the law, asserting that the unusual enforcement mechanism Texas relied on essentially tied the court’s hands – even though the state’s six-week ban flouts the high court’s precedent guaranteeing a woman the right to abortion through about 24 weeks of pregnancy.
The practical effect of that ruling has been that abortion providers in Texas have discontinued the procedure once a fetal heartbeat is detected.
Texas Attorney General Ken Paxton didn’t respond to a request for comment, but Texas Right to Life Vice President Elizabeth Graham said that her group, which was instrumental in passing the law, wasn’t surprised by the Biden administration’s “desperate move to stop the Texas Heartbeat Act from saving lives” and said it expects federal courts to declare the lawsuit invalid.
Whether that happens will initially be decided by U.S. District Judge Robert Pitman.
He has asked for Texas to respond to the Justice Department’s request by Sept. 29 and has set a hearing for Oct. 1.
Texas structured the enforcement of its law in such a way as to rely on private citizens to file lawsuits against abortion providers and others who help women get the procedure.
That enforcement mechanism makes it far harder for abortion rights groups to block the law on an emergency basis because it isn’t entirely clear whom they should sue.
A majority of the Supreme Court noted that uncertainty in their midnight order on Sept. 1, asserting that the initial federal lawsuit raised “serious questions regarding the constitutionality of the Texas law” but that it also presented “complex and novel antecedent procedural questions on which they have not carried their burden.”
Translation: It’s not clear abortion providers sued the right people.
“That first lawsuit was really not a good lawsuit,” said Howard Wasserman, a professor at Florida International University College of Law. But whether the Justice Department can sue Texas directly, he said, “is a much closer question.”