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Texas defends law that has halted most abortions in the state

Texas Attorney General Ken Paxton. (Emil Lippe/For The Washington Post)

Texas officials on Wednesday defended the state’s strict abortion law that bars the procedure as early as six weeks into pregnancy and urged a federal judge to allow the measure to stand.

Texas Attorney General Ken Paxton (R) said the court should dismiss the Biden administration’s lawsuit seeking to block the measure that has effectively halted most abortions in the nation’s second-most-populous state.

The Justice Department, the state said in its court filing, does not have the authority to use the federal courts to enforce a constitutional right to abortion. Rather, the Texas law must be challenged in state court through lawsuits brought by private citizens, Paxton contends.

“If the Department of Justice wants to expand its authority, it should direct its requests to Congress, not this Court,” the filing states. “At bottom, the federal government’s complaint” is that the law is difficult to block in federal court. “But there is no requirement that a state write its laws to make them easily enjoined.”

The court filing comes in advance of a hearing scheduled for Friday before U.S. District Judge Robert Pitman in Austin. It landed just as the Senate Judiciary Committee was examining the impact of the Texas law that allows individuals to take legal action against anyone who helps a woman terminate her pregnancy and the Supreme Court’s refusal to block the law’s enforcement immediately.

Abortion providers ask Supreme Court to step in quickly to review Texas law

The ban took effect Sept. 1 after the high court allowed the measure to stand while litigation continues. Abortion rights advocates last week asked the justices a second time to review the six-week ban, which they say clearly conflicts with the high court’s rulings that guarantee the right to abortion before viability, usually around 22 to 24 weeks.

The initial request from abortion providers to stop the Texas law sharply divided the Supreme Court, and it was clear from remarks Wednesday from Justice Sonia Sotomayor that those divisions remain.

Sotomayor was among the four dissenters who would have stopped the law taking effect, and in a virtual appearance at an American Bar Association summit on diversity, she mentioned the Texas law, which she wrote in her dissent was “flagrantly unconstitutional.” She told a questioner that “there’s going to be a lot of disappointments in the law, a huge amount.”

“As you study cases and look at outcomes you disagree with, it can get frustrating,” she said. “Look at me, look at my dissents, okay?” she said, laughing. “At least I have a vehicle, I have a dissent mechanism that I can explain how I feel.”

She continued: “So you know, I can’t change Texas’s law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

“I’m pointing out to that when I shouldn’t because they told me I shouldn’t,” she said, referring to the practice by which justices refrain from commenting outside the court setting on cases that are before them.

“But the point is, there are going to be a lot of things you don’t like,” she said.

Because of the law, women in Texas are traveling long distances to Oklahoma, Kansas, New Mexico and Colorado to terminate pregnancies. The Texas law makes no exceptions for rape, sexual assault or incest.

A dozen other states have passed similar bans on abortion after a physician has detected cardiac activity, usually around six weeks into pregnancy. But federal judges prevented those measures from taking effect because of the landmark Roe v. Wade decision of 1973 protecting the right to an abortion.

Texas doctor who violated state’s abortion ban is sued, launching test of law’s constitutionality

The Texas law is different and specifically crafted to avoid judicial review. State government officials, who are typically targeted in lawsuits to block such measures, are barred from enforcing the ban. Instead, private individuals can file lawsuits against anyone who helps a woman obtain an abortion.

Clinic employees, abortion providers and people who provide women with money or transportation to abortion clinics can be targeted in the civil actions with the threat of having to pay at least $10,000.

In Wednesday’s court filing, the Texas attorney general said the injunction sought by the Biden administration to block the “Heartbeat Act” is untenable “because Texas could not institute a heartbeat suit against anyone, much less the federal government.”

The state rejected the Justice Department’s argument that private individuals charged with enforcing the law are essentially “state actors” who can be subject to an injunction from the court.

Paxton also defended the law as constitutional and said it does not conflict with the Supreme Court’s decision that said states may not place an “undue burden” on a woman’s right to an abortion.

Abortion providers and opponents of the law strongly disagree. About 85 to 90 percent of women who obtain abortions in Texas are at least six weeks into pregnancy, meaning the law has effectively stopped all abortions in the state.

The law, they say, has also imposed a significant financial, professional and personal burden on the women who now must travel long distances outside of Texas if they want to terminate their pregnancies.

Even if the judge in Austin temporarily blocks the measure, the victory for opponents of the law may be short-lived, according to the attorney general’s office. Physicians who perform abortions after the six-week mark, and while an injunction is in place, are not shielded from future legal liability.

If the injunction is later dissolved on appeal, lawsuits can be brought retroactively, and up to four years after the abortion at issue has been performed, according to state officials.

“The threat of liability would remain given the significant possibility that a preliminary injunction would be stayed, reversed, or not turned into a permanent injunction,” Paxton said.