A federal judge heard arguments Friday over whether Texas can leave in place the nation’s most restrictive abortion law, which has banned most abortions and sent women racing to get care beyond the borders of the second-most populous state in the U.S.
A lawsuit filed by the Biden administration seeks to land the first legal blow against the state law that has thus far withstood an early wave of challenges, including one reviewed by the U.S. Supreme Court, which allowed it to remain in force.
The law is now in the hands of U.S. District Judge Robert Pitman, an appointee of former President Barack Obama. The Justice Department wants Pitman to immediately stop Texas from banning abortions once cardiac activity is detected, usually around six weeks.
That is before some women know they are pregnant, and there are no exceptions in cases of rape or incest. Enforcement is solely left up to private citizens, who are entitled to at least $10,000 in damages if they are successful in suing not just abortion providers who violate the law, but anyone found to have helped a woman get an abortion.
“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 law was signed by Republican Gov. Greg Abbott in May and took effect Sept. 1.
In that short time, abortion providers say, “exactly what we feared” has become reality. They have described Texas clinics that are now in danger of closing while neighboring states struggle to keep up with a surge of patients who must drive hundreds of miles from Texas. Other women, they say, are being forced to carry pregnancies to term.
“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.”
It is unclear how soon Pitman will decide.
It is also unclear how quickly any of Texas’ nearly two dozen abortion clinics would move to resume normal operations if the law is set aside. Texas officials would likely seek a swift reversal from the 5th U.S. Circuit Court of Appeals, which previously allowed the restrictions to take effect.
“Abortion care has almost completely stopped in our state,” Dr. Ghazaleh Moayedi, a Texas abortion provider, told the U.S. House Oversight and Reform Committee during a hearing over abortion access Thursday.
The Texas law is just one that has set up the biggest test of abortion rights in the U.S. in decades, and it is part of a broader push by Republicans nationwide to impose new restrictions on abortion.
On Monday, the U.S. Supreme Court begins a new term, which in December will include arguments in Mississippi’s bid to have the landmark Roe v. Wade decision guaranteeing a woman’s right to an abortion overturned.
Last month, the court did not rule on the constitutionality of the Texas law in allowing it to remain in place. But abortion providers took that 5-4 vote as an ominous sign about where the court might be heading on abortion after its conservative majority was fortified with three appointees of former President Donald Trump.
Other states, mostly in the South, have passed similar laws that ban abortion within the early weeks of pregnancy, all of which judges have blocked. But Texas’ version has so far outmaneuvered courts because it leaves enforcement to private citizens, not prosecutors, which critics say amounts to a bounty.
Texas officials argued in court filings this week that even if the law were put on hold temporarily, providers could still face the threat of litigation over violations that might occur in the time between a permanent ruling.
“The federal government’s complaint is that the Heartbeat Act is difficult to effectively enjoin,” the state wrote in objection to the lawsuit by the Biden administration. “But there is no requirement that a state write its laws to make them easily enjoined.”
At least one Texas abortion provider has admitted to violating the law and been sued — but not by abortion opponents. Former attorneys in Illinois and Arkansas say they instead sued a San Antonio doctor in hopes of getting a judge who would invalidate the law.
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