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A Judge Asked Why Texas Didn’t Enforce Its Own Abortion Ban If It’s “Confident” The Law Is Constitutional

The Justice Department is asking a judge to block Texas’s SB 8, which deputizes private individuals to sue to enforce a six-week abortion ban.

Posted on October 1, 2021, at 2:52 p.m. ET

Sergio Flores / Getty Images

Protesters hold up signs outside the Texas state capitol in Austin, May 29.

WASHINGTON — During arguments Friday over the Justice Department’s effort to halt Texas’s six-week abortion ban, US District Judge Robert Pitman told the state’s lawyer that he had an “obvious” question.

If Texas was so “confident” in the constitutionality of a law that prohibits doctors from performing nearly all abortions after around the sixth week of pregnancy, the judge asked, why did the state “go to such great lengths” to avoid enforcing it directly?

Pitman noted the “unusual” nature of Texas’s SB 8, hitting at a core issue that’s dominated fights over the law so far: whether Texas had found a way to structure an early-term abortion ban to avoid a constitutional challenge the state would likely lose if it tried to enforce it. Courts have repeatedly struck down state laws that ban abortions early in a pregnancy and leave enforcement to prosecutors or other government officials. SB 8 instead deputizes individuals to sue anyone they suspect of performing or aiding an abortion.

Pitman didn’t say how — or when — he’d rule, but his question at a minimum suggested a skepticism of Texas’s insistence that SB 8 wasn’t intended as an attempt to end-run legitimate legal challenges to the law. Texas has claimed that people can raise the constitutional question as a defense if they’re sued, but said that abortion providers and the Justice Department can’t bring lawsuits arguing SB 8 should be struck down on constitutional grounds.

Texas is the first state to have a six-week abortion ban take effect in the decades since the US Supreme Court ruled in Roe v. Wade that people have a right to an abortion and that abortion bans before a fetus is viable — typically around 24 weeks at the earliest — are unconstitutional. The justices are set to revisit the viability line this term in another case challenging Mississippi’s 15-week abortion ban, but for now it’s still binding.

Will Thompson of the Texas attorney general’s office responded to Pitman’s question about why Texas didn’t enforce the law itself by disputing that SB 8 was “unusual,” saying there were other types of laws where states empowered private individuals to take action. He then argued that even if the state could enforce the ban, it wouldn’t solve the procedural problems that Texas contends are fatal to the DOJ’s lawsuit against the state. Thompson also disputed that the law was a “ban” since it didn’t prohibit all abortions.

The Justice Department, which argued on Friday that the law is “unambiguously” unconstitutional, has asked Pitman to enter a preliminary injunction that would block the law while the rest of the case goes forward. It’s unusual for the federal government to sue over a state law, senior Justice Department official Brian Netter told Pitman, but he argued that the United States had the power to step in when a law is clearly unconstitutional and individuals affected by it can’t go to court themselves to protect their rights.

“There is no doubt under binding constitutional precedents that a state may not ban abortions at six weeks,” Netter said. “Texas knew this, but it wanted a six-week ban anyway. So the state resorted to an unprecedented scheme of vigilante justice.”

Friday’s hearing marked not only the latest important stage of the legal fight over SB 8 but also one month since the law took effect. SB 8 bans nearly all abortions in Texas after fetal cardiac activity can be detected — typically around the sixth week of pregnancy — and authorizes private individuals to enforce the law by suing doctors they suspect of performing abortions or anyone they suspect of aiding a pregnant person in obtaining the procedure. The law does not allow claims against a person who receives an abortion.

The law incentivizes these types of claims by allowing plaintiffs to ask for at least $10,000 in damages as well as their legal fees if they win, and includes no penalty for plaintiffs if they lose.

Pregnancy terms are counted from the first day of a person’s most recent period, so six weeks is typically two weeks after a missed period, which is when many people first realize they’re pregnant. Early-term state abortion bans are often referred to as “heartbeat” laws — Thompson repeatedly referred to a “heartbeat” during Friday’s arguments — but that term is misleading, since a fetus’s heart valves haven’t formed at that point; an ultrasound at that stage is detecting electrical activity.

Although it appears that only a handful of lawsuits have been filed so far under the law, SB 8 has had the effect of halting the majority of abortions in Texas. As legal challenges to the law wind through the courts, some pregnant Texans are traveling to other states to obtain abortions, but that’s only an option for people who have the time and money to do so; other people are exploring alternatives to going to medical professionals, such as ordering medication to self-manage the procedure.

Pitman asked few questions during the nearly three-hour hearing. His only question for Netter was what DOJ understood as the limits on the federal government stepping in to challenge state laws. Pitman said that DOJ appeared to be claiming “pretty expansive” power. Netter replied that it depended on the state law at issue — whether it was clearly a violation of the Constitution, whether it had a widespread effect, and, most importantly, whether individuals had no way to protect their rights on their own. He argued SB 8 met those criteria.

Texas has broadly argued that the federal government doesn’t have an interest in SB 8 and can’t bring a lawsuit, and that, even if it did, DOJ couldn’t sue Texas as a way to stop the law, since private individuals are the actors enforcing it.

The Justice Department is arguing that SB 8 turns private citizens into state actors, since they’re being empowered to enforce Texas’s interest in restricting access to abortion statewide. From the government’s perspective, that means that an injunction against Texas and its agents would block anyone from filing a suit under the law. Netter pointed out on Friday that the law doesn’t require plaintiffs to demonstrate a personal connection to the person they’re suing or the abortion at issue.

Thompson responded that although the law didn’t require a direct relationship in order to “ease” the burden of litigation, it was possible that plaintiffs could have their own reasons for suing that were separate from the state’s — he cited would-be grandparents as an example of potential parties with an interest in a pregnant person’s abortion.

In another exchange that spoke to the novelty of what Texas was trying to do, Pitman asked Thompson what the practical result would be if the judge entered an order that blocked Texas from “giving effect” to SB 8.

“Honestly, your honor, I’m not sure,” Thompson replied. He said that Texas would want clarity from Pitman about what exactly the judge intended and whom an order applied to.

SB 8 took effect on Sept. 1, after an unsuccessful last-ditch effort by abortion providers to petition the US Supreme Court to intervene. Pitman is also presiding over the providers’ case, and the US Court of Appeals for the 5th Circuit had entered an order that prevented him from doing anything to stop the law from taking effect; SB took effect at midnight in the absence of any action by the justices. The next night, the Supreme Court issued an order confirming that a majority of the justices had voted to reject the abortion providers’ petition to step in at that phase of the litigation.

With the providers’ case stalled before the 5th Circuit, Attorney General Merrick Garland announced on Sept. 9 that the Justice Department would bring its own lawsuit challenging SB 8 as unconstitutional. It was assigned to Pitman since it was considered “related” to the providers’ case. On Sept. 14, DOJ filed the motion asking Pitman for an injunction.

In addition to lawyers for Texas and the Justice Department, the judge heard Friday from Andrew Stephens, a lawyer representing a group of individuals who said they wanted to take advantage of the law to bring claims against actors they identified as aiding abortions after the sixth week. That group of interveners is also represented by Jonathan Mitchell, a Texas lawyer identified by the New York Times as the architect of SB 8.

Oscar Stilley, one of the private individuals who has brought one of the few known civil lawsuits under SB 8, also intervened in the case, and was given a brief window to argue on Friday; he said he would rely on his papers. Stilley sued Dr. Alan Braid, a San Antonio–based doctor who wrote an op-ed explaining his decision to continue performing abortions that violated SB 8. Stilley’s case represented the breadth of the Texas law; he doesn’t live in Texas and has no connection to Braid.

However Pitman rules, the party that loses is expected to appeal to the 5th Circuit. If Pitman sides with the Justice Department, Texas has asked that he also place any injunction order on hold so that the state can pursue an appeal without a change in the status quo.

If Pitman enters an injunction and refuses to put it on hold, it’s not immediately clear if providers would resume performing abortions right away. Texas would likely petition the 5th Circuit to immediately intervene. SB 8 also includes a provision that says that a person can be sued for violating the law if they facilitate an abortion based on a court decision that was later overruled. That means that if Pitman entered an injunction and the 5th Circuit later reversed his ruling, a doctor who performed an abortion during the in-between period couldn’t claim Pitman’s order as a defense if they ended up being sued.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.