Sunday, October 24, 2021

Justice Department will argue against Texas abortion law

30 September (WNN) — Texas’s nearly complete ban on abortion became law on September 1 and quickly became the target of several lawsuits aimed at preventing its enforcement.

But as the legal battle continues — with one case the subject of a federal court hearing on Friday — Senate Bill 8 still stands.

Abortion providers, doctors, women’s rights groups and even the US government are struggling to overturn legislation that bans the procedure after about six weeks of pregnancy — before many people know they are. are pregnant. The country’s highest court has adopted the law once – though its constitutionality was not affected – and there are several lawsuits pending. A federal lawsuit filed by the Biden administration will be heard in US District Court on Friday.

Abortion is a constitutional right under the precedent of the Supreme Court. But the structure of SB8 allows precedent to be eliminated by shifting enforcement of the law from government and law officials to private citizens.

By giving anyone in the country the right to sue a provider or person who helps someone get an abortion and circumvents state enforcement, SB8 makes it difficult to name the right defendants in lawsuits that are legally compliant. will stop enforcement.

In a 5-4 vote, the Supreme Court decided not to block the law on the day it came into force. The court cited procedural difficulties and threw that legal case back to the 5th US Circuit Court of Appeals, where it currently sits. But the justices insisted that the court was not ruling on the constitutionality of the statute, that is, not ruling Roe v. Wade.

This is where various challenges to the law arise.

US vs Texas

The Justice Department sued Texas on September 9 in an attempt to block enforcement of the law after the Biden administration vowed to take action. Federal and state attorneys will present arguments on Friday.

The case was overseen by US District Judge Robert L. Pittman, the 2014 nominee for former President Barack Obama, in the U.S. District Court for the Western District of Texas.

The Justice Department says the law was deliberately designed to violate constitutional rights by making it difficult to challenge in court.

“It is a settled constitutional law that ‘a state cannot prevent any woman from making a final decision to terminate a pregnancy prior to viability’,” US lawyers said in the lawsuit. “But that’s what Texas has done.”

But the state responded that just because the law is difficult to challenge judicially does not mean it should be reversed.

“If the Justice Department wants to expand its authority, it should direct its requests to Congress, not this court,” the Texas filing said.

Josh Blackman, a professor of constitutional law at the South Texas College of Law Houston, says the federal lawsuit distinguishes itself from other legal challenges to the abortion law, but it is unlikely to block an almost complete ban.

The Department of Justice can sue states in relation to sovereign immunity, which provides protections for state agencies against lawsuits. A separate lawsuit filed by abortion providers named a judge as the defendant, who could draw questions of sovereign immunity.

The Justice Department’s lawsuit claims that state law interferes with the federal government’s ability to perform its duties under certain circumstances. Blackman said it would be an uphill climb to demonstrate in court and even if it did, it probably wouldn’t justify blocking the entire law.

Still, Blackman said Pittman is likely to rule in favor of the Justice Department. But Pittman’s decision likely won’t be the final word on the matter. The state will likely appeal and refer the case to the 5th US Circuit Court of Appeals, where a lawsuit filed by abortion providers currently sits. The 5th Circuit is arguably the most conservative appeals court in the country.

At the time, the Supreme Court could also have been asked to step in the trial, but Blackman said he believed the judges would make the same decisions as before and would not decide the constitutionality of the law.

Legal experts have different forecasts as to how the case will go – if they will make any predictions.

Because Blackman doesn’t think the Supreme Court will ultimately hold the law unconstitutional, he thinks it’s here to stay.

“This law is not murderable,” he said. “It’s like a hydra, you can’t kill it – you cut off one head and two heads grow in its place.”

However, Javier Oliva, a law professor at the University of Texas at San Antonio, said he believes the Justice Department’s lawsuit will result in the law being overturned.

She believes the law could prove to place an undue burden on women who can’t get timely treatment or who have to travel across state lines — and she believes Those arguments can be used to block the enforcement of the law until its constitutionality is decided.

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John Seago, the legislative director of the leading anti-abortion group Texas Right to Life, which helped draft SB8, called the Justice Department’s lawsuit “the most credible threat at this point” for the abortion law.

Lauren Stiller Ricklen, board member of Lauren’s Defending American Democracy, said the Supreme Court’s decision not to temporarily block the law while the courts consider its constitutionality came as a shock to her and other law experts.

Now, he’s unsure what to expect.

“No one would have thought that the Supreme Court would have allowed this law to stand while all these appeals were being made,” he said. “I think you have to stop predicating on the law after the Supreme Court’s decision on September 1st.”

Individual lawsuit against Texas doctor

At least two lawsuits have been filed against San Antonio OB/GYN Dr. Alan Brad, who admitted in a Washington Post column that he performed an illegal abortion under the state’s new statute.

Lawsuits may test the law in state courts. If appealed to the Texas Supreme Court, judges can determine the constitutionality of the law or even bar people from filing lawsuits who cannot demonstrate how they were injured by someone else’s abortion. But many are skeptical about how the All-Republican Court will rule if a case is brought to them.

It is also unclear whether the individual lawsuits filed will ever be heard. Some legal experts speculate that because two plaintiffs — both out-of-state, disapproved attorneys — cite a trial of law or want to overturn it as reasons for the lawsuits, they may be kicked out altogether.

The Reproductive Rights Center, which represents Brad, did not comment on the lawsuits.

Blackman said cases brought by private citizens could potentially even make their way to the Supreme Court of Texas — which has yet to be tapped to weigh in on the law. The High Court of Texas could then potentially rule that the plaintiffs empowered by SB8 to file a lawsuit are not in fact injured and therefore the lawsuits should be dismissed – or the court could block enforcement of the law altogether. , They said.

Abortion providers sued before law goes into effect

Abortion providers, including Planned Parenthood and the Whole Women’s Health Coalition, filed a lawsuit on July 13 that aimed to block abortion restrictions after it was signed into law by Greg Abbott of Gov.

Pittman is also overseeing the matter. But the proceedings were halted after the defendants appealed to the 5th Circuit Court of Appeals—which led to the cancellation of a scheduled hearing just before the law took effect.

The lawsuit sits with the 5th Circuit, which has not ended its stay. According to court filings from abortion providers, the appeals court will not argue until December.

The providers asked the Supreme Court to handle the matter and fast-track proceedings in a rare process called “certificate before judgment”. But Blackman says there is little chance the Supreme Court will accept the request.

He said the matter would continue to be handled by the 5th Circuit, at least for now.

federal laws

The US House last week passed a reproductive rights bill that would repeal Texas’ controversial near-total abortion ban by codifying abortion rights into federal law. The law is unlikely to be passed in the Senate, and therefore, is unlikely to become law.

US Supreme Court to hear Mississippi case

Many eyes are on another abortion-related matter before the Supreme Court, which is set to hear arguments on December 1. A new law in Mississippi aiming to ban most abortions after 15 weeks was temporarily blocked by a district court in 2018. Which the 5th Circuit retained the following year.

Through this case, Justices could reverse Roe v. Wade, the 1973 decision that established the constitutional right to abortion. If the precedent is reversed, 11 states, including Texas and Mississippi, have “trigger laws” that will automatically take effect to ban abortions in their communities.

Disclosure: Planned Parenthood and the University of Texas at San Antonio have been financial supporters of the Texas Tribune, a non-profit, non-partisan news organization funded partially by donations from members, foundations, and corporate sponsors . Financial supporters play no part in the journalism of the Tribune. Find their full list here.

This article originally appeared in The Texas Tribune. Read the original here.

The Texas Tribune is a member-supported, nonpartisan newsroom that informs and engages Texans on state politics and policy. Learn more at


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