By Sarah N. Lynch and Jan Wolfe
(Reuters) -President Joe Biden’s administration on Friday urged a judge to block a near-total ban on abortion imposed by Texas – the strictest such law in the nation – in a key battle in the ferocious legal war over abortion access in the United States.
The U.S. Supreme Court on Sept. 1 https://www.reuters.com/business/healthcare-pharmaceuticals/texas-six-week-abortion-ban-takes-effect-2021-09-01 allowed the Republican-backed law to take effect even as litigation over its legality continues in lower courts. The U.S. Justice Department eight days later sued in federal court https://www.reuters.com/world/us/us-justice-dept-announce-civil-rights-case-after-texas-abortion-ban-takes-effect-2021-09-09 to try to invalidate it.
During a hearing in the Texas capital of Austin, Justice Department lawyers asked U.S. District Judge Robert Pitman to block the law temporarily, saying the state’s Republican legislature and governor enacted it in an open defiance of the Constitution.
“There is no doubt under binding constitutional precedents that a state may not ban abortions at six weeks,” said Brian Netter, the lead Justice Department attorney on the case.
“Texas knew this but, it wanted a 6-week ban anyway. So this state resorted to an unprecedented scheme of vigilante justice.”
“This is not some kind of vigilante scheme, as opposing counsel suggests,” countered Will Thompson, a lawyer in the Texas Attorney General’s Office. “This is a scheme that uses lawful process of justice in Texas.”
The judge at one point seemed skeptical of Thompson’s arguments, telling him Texas seems to have “gone to great lengths” to make its abortion ban difficult to challenge in court.
The judge said: “My obvious question to you is: If the state is so confident in the constitutionality of the limitations on woman’s access to abortion, then why did it go to such great lengths to create this private cause of action rather than do it directly?”
Thompson responded that laws providing for enforcement are not as unusual as the Justice Department has claimed.
In the 1973 Roe v. Wade ruling that legalized abortion nationwide, the Supreme Court recognized a woman’s constitutional right to terminate a pregnancy. The high court in December is due to hear arguments over the legality of a Mississippi abortion law in a case in which officials from that state are asking the justices to overturn Roe vs. Wade.
The Texas law bans abortions starting at six weeks of pregnancy, a point when many women may not yet realize they are pregnant. It and the Mississippi measure are among a series of Republican-backed laws passed by various states restricting abortion.
About 85% to 90% of abortions are performed after six weeks. Texas makes no exception for cases of rape and incest. It also lets ordinary citizens enforce the ban, rewarding them at least $10,000 if they successfully sue anyone who helped provide an abortion after fetal cardiac activity is detected.
The four Whole Woman’s Health abortion clinics across the state have reported that https://www.reuters.com/world/us/texas-abortion-clinics-struggle-survive-under-restrictive-law-2021-09-30 patient visits have plummeted and some staff have quit since the Texas law took effect.
In an emergency motion to the court, the Justice Department provided sworn statements from doctors who described the impact of the Texas law on patients.
In one statement, Dr. Joshua Yap said he witnessed a “surge” of women crossing into neighboring Oklahoma for abortions.
“One of the most heart-wrenching cases I have seen recently was of a Texas minor who had been raped by a family member,” Yap said, adding that a guardian made an eight-hour drive to Oklahoma from Galveston because the girl was more than six weeks pregnant.
Thompson dismissed the Justice Department’s arguments as nothing more than a pattern of “hyperbole and inflammatory rhetoric,” and told the judge there is plenty of opportunity for people to seek judicial review to challenge the law.
“This law that the federal government is challenging provides for more judicial process than any other enforcement scheme could,” he said.
“This is not some kind of vigilante scheme, as opposing counsel suggests. This is a scheme that uses lawful process of justice in Texas.”
Democratic former President Barack Obama appointed Pitman to the judiciary in 2014.
The hearing will also include arguments from other interested parties, including Oscar Stilley, a disbarred lawyer in home confinement for tax evasion who in September became one of the first people to test a key provision of the law by suing a San Antonio doctor who provided an abortion.
(Reporting by Jan Wolfe and Sarah N. Lynch in Washington; Editing by Will Dunham, Alistair Bell and Dan Grebler)
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