Texas urges appeals court to keep abortion ban in place as legal challenges play out

Texas Attorney General Ken Paxton urged a powerful federal appeals court on Thursday to allow a state law that bars abortion after the detection of a fetal heartbeat to remain in effect while legal challenges play out.

The new briefs are the latest salvo from Texas that is defending against a lawsuit brought by the Department of Justice. The federal appeals court could act at any time, although it may make a few days to write an opinion that will likely be reviewed by the Supreme Court.

Paxton argues that the Biden administration does not have the legal right to bring suit in the case, even if the law were crafted in a way to avoid review in federal court.

“The federal government’s position boils down to a simple — but erroneous — claim: A law that avoids pre-enforcement review in federal district court is an open threat to our constitutional order,” the Republican state attorney general wrote. “That is ahistorical nonsense.”

Challenges to the law that bans abortion after six weeks — often before most women know they are pregnant — have ricocheted through the courts. A divided Supreme Court allowed the law to go into effect on September 1 as a part of a different challenge. But a trial court agreed to block it on October 6. During a two-day window, some clinics began performing abortions again, but were stopped from doing so when the 5th US Circuit Court of Appeals stepped in to temporarily freeze the trial judge’s order. Now the appeals panel will decide whether to issue a more formal injunction in the coming days.

No matter how the court rules, the losing party is likely to race back to the Supreme Court.

The extensive legal wrangling is due in part because the law was written expressly to make it difficult to challenge in federal court. That’s because Texas state officials are barred from enforcing it. Instead, private citizens — from anywhere in the country — can bring a civil suit against anyone who assists a pregnant person seeking an abortion in violation of the law.

Attorney General Merrick Garland, in announcing the lawsuit last month, referred to the law as a “scheme” and said it “is clearly unconstitutional under longstanding Supreme Court precedent.”

“The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights,” he said.

On October 6, Judge Robert Pitman of the US District Court for the Western District of Texas echoed that sentiment, blocking the law and calling it “flagrantly unconstitutional.”

A key issue in the case is whether the federal government has the legal right or “standing” to bring the challenge. The DOJ says it does, in part, because private individuals bringing suit are acting as agents of the state and the government has the power to protect the fundamental rights of its citizens.

But Paxton says the federal government doesn’t have the right to step in.

He is supported by a brief filed by Jonathan Mitchell, one of the architects of the law now representing three individuals who are interested in bringing lawsuits against those who may violate the law.

Mitchell wrote that the states “have tools in their arsenal to limit the judiciary’s opportunities to pronounce their statutes unconstitutional.”

Mitchell said that states can structure their laws in a way that “reduces or eliminates” laws from being challenged before they are actually enforced. “And that is what Texas has done,” he said. “By prohibiting state officials from enforcing the statute and by authorizing the citizenry to enforce the law through private civil-enforcement actions, Texas has boxed out the judiciary from entertaining” such challenges.

Mitchell added that abortion is “not a constitutional right,” but instead it is “a court-invented right that may not even have the majority support on the current Supreme Court.”

The court is taking up a direct challenge to the 1973 Roe v. Wade decision that legalized abortion nationwide in December.

On Wednesday, Indiana and 17 other states filed a “friend of the court” brief in support of Texas. “The Attorney General has no authority to act as a roving reviser of state law, challenging as unconstitutional any rule with which he disagrees,” Indiana Attorney General Theodore Rokita said.

But a group of law professors filed their own brief in support of the DOJ’s position.

“By attacking well-established constitutional rights through a scheme designed to evade judicial review, S.B. 8 represents a challenge to the rule of law, our system of constitutional government, and the Constitution’s Supremacy Clause,” Covington & Burling lawyer Julie F. Post argued on behalf of the professors. She said that the state “has its prints all over this statute” and that if it were to succeed here the enforcement scheme could be used in other contexts.

“By delegating enforcement authority to citizens,” she wrote, “states could ban the sale of firearms, the expression of particular viewpoints, or worship by certain faiths.”

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