Justice Department argues for injunction on Texas abortion law


A U.S. District Court Judge in Austin weighed the Department of Justice’s request to impose an injunction against Texas’ near total ban on abortion in a hearing on Friday morning.

Judge Robert Pittman of the Western District of Texas is expected to issue his ruling soon.

The lawsuit filed by Attorney General Merrick Garland in September argues that Senate Bill 8, which outlaws abortion after a “fetal heartbeat” is detectable, violates Supreme Court precedent that allows abortion rights across the country.

During the injunction hearing Friday morning, attorneys representing the Department of Justice argued that the design of SB 8 is a threat to the rule of law. In recent weeks, architects and proponents of the law have said that it was never necessarily the intention of the law to have lawsuits filed against violaters of the law — rather, the threat of lawsuits would keep Texans in line with the ban on abortions after about six weeks of pregnancy.

The Department of Justice called on Arkansas former-attorney Oscar Stilley, one of only two people known to have brought a lawsuit under the provisions of SB 8, as a witness. Stilley said his motivation to bring a lawsuit was to bring the law up for judicial review — something he said architects and proponents of the law weren’t willing to do.

By avoiding judicial review, the DOJ attorneys concluded, the Texas law violates the constitution and hinders U.S. sovereignty. An attorney representing the state, Will Thompson, countered that there’s nothing unprecedented or unconstitutional about private individuals exercising their right to explore filing civil lawsuits.

Pitman pushed back against that argument, asking why the state, if it were so confident about the constitutionality of limiting abortion access, would “go to such great lengths to create this private court of action rather than just doing it directly.”

DOJ attorney Brian Netter said the injury that creates the need for injunctive relief is evident because of the known decrease in the number of abortions able to be provided in Texas. “The injury here is threat of enforcement,” he said, describing the chilling effect the law has had on access to abortion in Texas.

Thompson said that even if an injunction is granted, he doesn’t think access to abortion in Texas would increase because injunctive relief is temporary by definition — providers would not be free from liability in the future. “It’s fear of potential future liability that causes a chilling effect,” he said.

If Pitman grants injunctive relief, his decision is expected to be sent to the 5th Circuit Court Appeals, widely known as the most conservative appeals court in the country. That court halted proceedings in a case filed by abortion providers in July that attempted to to block the abortion restrictions before they went into law. Although the providers have asked the Supreme Court to speed up the process, arguments aren’t likely to be heard in that case before December.

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