Texas Tells Judge U.S. Lacks Power to Sue Over Abortion Law
(Bloomberg) -- Congress never empowered the U.S. Justice Department to file lawsuits to “enforce a constitutional right to abortion,” despite many chances to do so, lawyers for Texas told a judge weighing whether to temporarily block a new state law strictly limiting the procedure.
U.S. prosecutors have long had only limited authority to sue over abortion rights, including under a narrow 1994 law that bars the use of violence or threats to block access to reproductive care, Texas Attorney General Ken Paxton said in a filing Wednesday in federal court in Austin.
“If the Department of Justice wants to expand its authority, it should direct its requests to Congress, not this court,” Paxton, a Republican, said in the filing.
Texas argues that purported lack of authority is one reason to deny the Justice Department’s request for a temporary injunction that would put the law on hold while the government sues to overturn the ban. U.S. District Judge Robert Pitman will hear arguments Friday on the U.S. request.
The state law, which took effect Sept. 1, prohibits abortions in Texas after six weeks of pregnancy -- before most women know they’re pregnant. There are no exceptions for rape or incest. It also outsources enforcement to private citizens, empowering them to sue medical professionals suspected of violating the ban and to seek bounties of at least $10,000 per illegal procedure.
The Biden administration argues a temporary injunction is warranted because the law is already putting women in Texas at risk and forcing them to leave the state to seek care -- if they can afford to. Attorney General Merrick Garland said last month that the law is “clearly unconstitutional under longstanding Supreme Court precedent.”
Texas argues the Justice Department is wrong to claim that a temporary injunction would reverse a “chilling effect” on Texas abortion providers, which have stopped offering procedures after six weeks to avoid being sued.
“In light of the strong possibility that any preliminary injunction would eventually be stayed or reversed, allowing heartbeat suits in state court to proceed, abortion providers would still face the prospect of future liability,” Paxton said in the filing.
Texas also took aim at the Justice Department’s request for an injunction that would apply to hypothetical private citizens who might sue over illegal abortions and the state-court judges who would hear such cases.
“The court cannot decide that absent third parties are subject to an injunction without letting them be heard,” Paxton said.
The Justice Department didn’t immediately respond to a message seeking comment.
Texas lawmakers argue abortions shouldn’t be allowed after a fetal heartbeat is detected, framing the issue as a right to life for the unborn.
Separately, Planned Parenthood on Wednesday asked the Texas Supreme Court to intervene in a lawsuit the group filed over the new law, after the state’s multidistrict litigation panel stepped in and stayed all lawsuits in state court challenging the abortion ban. Planned Parenthood had an Oct. 13 hearing set in its case against Texas Right to Life, which has plans to sue under the new state law.
“We’re urging the Texas Supreme Court to step in and move this critical case along so we can restore access to abortion across the state,” Helene Krasnoff, a vice president with Planned Parenthood, said in a statement.
The case is United States v. Texas, 1:21-cv-00796, U.S. District Court for the Western District of Texas (Austin).
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