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Texas, In Court Battle On Abortion Law.

TOPLINE The U.S. Department of Justice and Texas butted heads in federal court Friday over the state’s controversial abortion law, as the state’s attorney downplayed the six-week ban and suggested he wasn’t even sure whether an injunction against the law would have any effect—a point the DOJ said was “not supported by the facts.”


Attorney Will Thompson of the Texas Attorney General’s Office argued the state would have issues complying with an order that temporarily freezes Texas’ Senate Bill 8 (SB 8) because the government doesn’t actually have a role in enforcing the law and instead deputizes private citizens to
punish those who “aid and abet” abortions through private lawsuits.

“I don’t know what we would do” to comply with an injunction, Thompson said, asking the court, “Should I call state court judges and tell them to be on the lookout for these filings?”

U.S. District Judge Robert Pitman asked Thompson what potential defendant would actually be subject to an injunction blocking the law, to which the attorney said there is no such person or entity because “there is no public official who enforces the Texas Heartbeat Act.”

Justice Department attorney Brian Netter hit back against Texas’ attempt to evade responsibility for blocking the law, saying Thompson’s suggestion the injunction would be ineffectual “just shows how aggressive and terrifying” SB 8 and it's enforcement mechanism is.

The attorney said the fact that abortion providers would resume the procedures if an injunction were issued refutes the state’s argument that a court order wouldn’t have any impact—which the clinic Whole Woman’s Health backed up in a court filing Friday attesting that it will resume abortions after six weeks if an injunction is issued.

Netter put responsibility for SB 8 and its enforcement squarely on Texas, saying “the state passed this law” and thus “can take steps to ensure” its impacts are reversed.


Pitman, who was appointed by former President Barack Obama, is expected to rule soon on whether to issue an injunction that would temporarily block SB 8 while litigation over it moves forward. The Biden administration has asked the judge to issue an order that would block Texas judges, government officials, and agents, and private individuals from enforcing the law, and Thompson asked Friday for any court order to be as specific as possible with what and who it is enjoining so the state can respond accordingly. The judge gave little suggestion Friday as to which way he would rule, though Pitman did push back on Thompson’s claims SB 8 was clearly constitutional. “I guess my obvious question to you is if the state is so confident in the constitutionality of the limitations on women's access to abortion, then why did you go to such great lengths to create this very unusual private cause of action rather than just simply doing it directly?” the judge asked.


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