“It works so far,” argued Netter for an injunction against the law and the state. “His trick of keeping SB 8 out of court is an open threat to the rule of law … SB 8 threatens the supremacy of the US Constitution.”
Netter said the private enforcement system is designed to scare abortion providers into refusing to help women who want to exercise their constitutional right to have an abortion.
“It’s designed to work through the towers,” he said, apparently implying that the threats the law creates are intentionally hidden and unpredictable.
Shortly after the law went into effect on September 1, the Supreme Court voted 5 to 4 to reject an offer from abortion providers to block it. The judges, however, expressed doubts about the constitutionality of the so-called Heartbeat Act, which seeks to prohibit abortions performed after a fetus has reached six weeks of gestation – when heart activity is typically detected. The higher court also left the possibility of further legal action open.
One challenge for the Justice Department attorneys in the new lawsuit they filed on Sept. 9 is that they can’t point to any specific law that gives the federal government the right to sue a law like that of Texas. Netter and his colleagues have argued that a variety of federal agencies dealing with immigrants, prisoners, or even members of the Job Corps are affected by Texas law.
Another controversial issue is who the judge might order not to enforce the law since it is set up to allow individuals to bring actions in state courts. Netter argued that these people were actually agents of the state so they could be covered by any restraining order Pitman issues.
“They are not real private individuals trying to enforce private interests in court. … They are state actors,” said Netter. “These individuals are state actors by virtue of the schema developed by the state. … The state has used a number of tricks to bypass the Constitution directly, in a way that the state has recognized that it will not get directly into.” can.”
However, a Texas attorney denied that the law was unconstitutional. Texas Attorney’s Will Thompson said the law actually contained language that would use the current Supreme Court standard on abortion rights as long as that standard remains in effect.
“I’m sorry to see the federal government’s pattern of exaggeration and inflammatory rhetoric continue,” Thompson said. He argued that creating the prospect of being sued about something could hardly mean an end to the legal system.
“In a heartbeat trial, nothing happens to a defendant until a state court hears the case. This is not a type of vigilante justice, ”Thompson said. “It is a scheme that uses the normal and lawful process of the Texas judiciary … We do not believe that the private prosecutor will be placed in the position of the state.”
Thompson argued that the suits were related to common “crime suits” that were often filed for car accidents or slip and fall injuries. But Netter said it wasn’t because the potential plaintiffs here could be anyone, even those who have no connection with the person requesting the abortion or others involved in the case.
The federal government has already sued states over immigration and land use issues, but attorneys for Texas argued that the federal government’s interest in the case is not apparent as there is no federal law promoting abortion. Thompson also noted that a law aimed at gaining access to abortion facilities, the Freedom of Access to Clinic Entrances Act, does not provide a legal mechanism for the federal government to challenge state laws.
“The federal government has no intention of promoting abortions or getting more of them to happen,” Thompson said.
The judge made no clear indication of how he intended to govern, but at one point expressed concern that Texan law appeared to be intended to interfere with the right to abortion while making legal proceedings more difficult.
“What this law was supposed to do was find a proxy for the state to shield the state from the kind of judicial oversight that would normally exist,” Pitman said.
Proponents of abortion rights and the Justice Department argue that the threat of litigation under SB 8 has led the few doctors who perform abortions in Texas to severely curtail their jobs, which has forced some of those who want an abortion to leave the state leaving.
But an attorney for several people who wanted to uphold their rights to sue under Texas law said it was not an outright ban on abortion.
“This is not a virtual or near-total ban on abortion in Texas,” said Andrew Stephens, an attorney supported by America First Legal, a group of former employees of former President Donald Trump.
Stephens said that Texan clinics still perform between about 40 and 60 percent of the abortions performed before SB 8 took effect.
“The effects are much less severe than they told this court … Many abortions are still performed,” said Stephens. “We don’t think they have fulfilled their burden.”
However, Netter argued that even if some abortions occur when women are less than six weeks pregnant, the constitutional rights of women trying to terminate pregnancy after that point are still violated.
Pitman did not specify how long it would take him to make a decision at the request of the federal government. It also remains unclear what an injunction would look like. One possibility is that they are state judges or court clerks. But at this early stage of the case it would not be a definitive solution to the legal issues. Thompson suggested that the law could still affect the actions of abortion providers regardless of what the judge does now.
“The prospect of future liability … will continue to exist regardless of whether there is an injunction,” he said.