The Columbus Dispatch

Texas abortion law may return to court

Judge sets Oct. 1 hearing in US challenge of ban

- John Fritze

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 effect 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 afforded” in the first 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 effort 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 flouts the high court’s precedent guaranteei­ng a woman the right to abortion through about 24 weeks of pregnancy.

The practical effect 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 file 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 first 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.”

 ?? JAY JANNER/AP FILE ?? Anti-abortion demonstrat­ors gather on March 30 in Austin, Texas. Texas passed a law that bans abortions after about six weeks.
JAY JANNER/AP FILE Anti-abortion demonstrat­ors gather on March 30 in Austin, Texas. Texas passed a law that bans abortions after about six weeks.

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