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DOJ Accuses ‘Subversive’ Texas Legislature of Passing ‘Terrifying’ Anti-Abortion Law to ‘Outflank’ Supremacy of U.S. Constitution

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas.

Abortion rights activists rallied at the Texas State Capitol on September 11, 2021 in Austin, Texas.

A collection of thirteen attorneys from the U.S. government, the State of Texas, and a group of intervening parties on Friday argued zealously about the fate of a restrictive anti-abortion law. The measure at issue, S.B. 8, allows a hypothetically unlimited number of private parties in the Lone Star State to sue abortion providers who terminate pregnancies after embryonic cardiac activity is detectable in a medical environment — generally after about six weeks of development.

U.S. Department of Justice attorney Brian Netter argued in U.S. District Court for the Western District of Texas that the state had enabled a regime of “vigilante justice” in direct contravention of the U.S. Constitution’s guarantee of the right to a pre-viability abortion. He said the DOJ considered the state’s “ploy” to be an “open threat to the rule of law.” Netter later said Texas was “appointing vigilante bounty hunters” to enforce an anti-abortion measure that state actors would be immediately be blocked by a federal judge from enforcing on their own under the color of law.

The DOJ attorney called the 14th Amendment a “national compact” and accused Texas of “subversive” legislative activities that were designed to challenge the “supremacy of the federal government.” He also said the state crafted the challenged legislation to “thwart . . . judicial review.” He argued that the federal government’s challenge to S.B. 8 was therefore “necessary and appropriate.” He cited a U.S. Supreme Court case, Vermont Agency of Natural Resources v. U.S. ex rel Stevens (2000), to argue that a challenge to the sovereignty of the United States creates standing for the federal government to sue — and he said such a scenario was present in S.B. 8.

Netter said state court review was an inadequate check on S.B. 8 “bounty lawsuits” and bemoaned the “endless series of judicial conflicts that would be caused by vigilante actions.”

The federal government attorney then said S.B. 8 plaintiffs were “acting at the behest” of the state.

“They are state actors,” he argued while referencing individuals who chose to sue under a legal mechanism that he characterized as “functionally equivalent” to a direct paycheck from the state. S.B. 8 plaintiffs can collect damages of at least $10,000 — possibly more — if they win cases against abortion providers.

Netter said S.B. 8 plaintiffs were acting at the “behest” of the state in an attempt to vindicate purported state interests in “active concert” with the state government.

Netter also said litigation in federal court was necessary and that litigation in state courts would be futile given the sheer volume of S.B. 8 lawsuit that could hypothetically be brought against abortion providers.

“Because it is part of the scheme to use this judicial process to enforce Texas’s unconstitutional end, the existence of [state court] review after the fact simply doesn’t cure the constitutional injury” of restricting abortion access, Netter continued. He expounded:

The shutdown of abortions after six weeks within the State of Texas is proof enough already that the state court review has achieved its design. And that design was to create a system of deterrence to make it impossible for individuals to vindicate their rights through the court system. It’s because that system of state court review isn’t adequate that the extraordinary process of law — this action by the United States — is necessary because the United States surely has an interest in defending and upholding the supremacy of the federal constitution. Were it the case that the United States had no interest and that there were no recourse — no ability for the United States to assert the supremacy of federal law — then that key provision of the constitution would lose meaning and we would return to the era in which states felt that it was appropriate to nullify provisions of the constitution that they felt were inconvenient or inconsistent with their individual state-held views in conflict with what the Supreme Court had held.

Referencing hypothetical future cases — a tactic favored by many federal judges who are worried about the tumbling long-term effects of their rulings — Netter said it was “not hard to imagine” other ways states could easily subvert the U.S. Constitution if legislatures suddenly wished to open the floodgates of private liability by creating similar private causes of action. One such issue, Netter posited in the hypothetical, would be a civil cause of action that might allow aggrieved individuals to sue fellow citizens for $1 million every time they criticized the U.S. President. Such a measure would have a “chilling effect” on free speech under traditional First Amendment law, Netter opined, but might be similarly difficult to attack.

The federal government then referenced Cooper v. Aaron, (1958) another U.S. Supreme Court case which challenged a state’s ability to trounce federal constitutional provisions. That case involved a state’s slow response to school desegregation orders — a response all nine members of Supreme Court said was wholly illegal.

Pursuant to an earlier order, federal judge Robert Lee Pitman, a Barack Obama appointee, allowed one hour each for the U.S. government and the State of Texas to argue their sides of the case. The state was allowed to present 20 minutes of “video deposition evidence.” The federal government was allowed to reserve some of its one hour as a rebuttal. Two sets of intervenors — the first involving three individuals, the second involving one individual — were allowed 30 and 10 minutes for arguments, respectively. Several of the intervenors argued that the federal government’s attempt to shut down Texas S.B. 8 deprived them of a property right afforded by the state.

Prior to the start of the arguments in chief, the state accused the federal government of adding additional and allegedly contradictory evidence into the case at the last minute. The judge said he would take the argument under advisement.

Will Thompson, an attorney for the State of Texas, said it was unfortunate that the DOJ had resorted to inflammatory rhetoric and hyperbole to challenge S.B. 8. He said the statute provided significant opportunities for defensive tactics — including constitutional challenges — in individual S.B. 8 lawsuits in state courts pursuant to the “normal and lawful process of justice in Texas.” He then rebuffed complaints that the theoretical myriad of S.B. 8 civil suits would create a barrier to abortions.

“Mere litigation expense, even when it is substantial and irrevocable, never constitutes irreparable harm” for the purpose of a preliminary injunction, Thompson said while arguing the law. He said the government’s attempt to use litigation expenses to establish an undue burden on abortion rights was legally “categorically improper.”

As he did in written briefs, the state’s attorney leaned heavily on Muskrat v. United States (1911), another U.S. Supreme Court case which the DOJ said was not on point.

Thompson then said that if the judge was planning to issue an injunction then it should be narrowly tailored and explicitly detailed.

Judge Pitman jumped in and asked who could be enjoined from enforcing S.B. 8.

“There is no public official who enforces the Texas Heartbeat Act,” Thompson reiterated. “I don’t think there’s someone I can identify for the court, because I don’t think such a person exists.”

Thompson argued that it was improper for the DOJ to seek injunctions against state court officials, judges, and county clerks — several possible parties identified by the feds as targets for any injunction Judge Pitman sought to enforce.

Thompson said that the law was clear: S.B. 8 created no “case or controversy” against state judicial officials and, therefore, they could not be enjoined.

Judge Pitman then asked Thompson to respond to the argument that the S.B. 8’s aim was to put a private citizen “in the shoes” of the state for purposes of enforcement.

“I think we would respectfully disagree with that characterization,” Thompson said. “These kind of laws are not as unusual as opposing counsel suggests.”

Thompson noted that the Supreme Court was currently being asked to examine a Kentucky statute which allowed individuals who lost money while gambling to sue to recover it because gambling is illegal under Kentucky state law. He analogized that legal regime to the private enforcement mechanism codified in S.B. 8 in Texas.

“The court can always enter an injunction against [an individual] defendant” who tries to enforce S.B. 8, Thompson said — but he argued that the court couldn’t simply name a “category” of individuals to enjoin.

Later, in what might be characterized as an attempt to somewhat unwind the legal effects of the Civil War, Thompson said the federal government had no injury to enforce. He characterized the federal government as a government of limited powers that was designed at the request and behest of the states — not as a government designed to control the states. He noted argued that Congress has failed to pass a statute which explicitly allows the federal government to enforce federal supremacy under the 14th Amendment in abortion cases. Elsewhere, he said Texas wished to enforce its rights as a sovereign state.

Thompson continually referred to S.B. 8 as the “Heartbeat Act.” He quibbled with the federal government’s characterization of S.B. 8 as a “ban” and said the statute itself established the right to an undue burden defense under Planned Parenthood v. Casey. He acknowledged that the federal government considered that defense insufficient given the costs of the litigation and the potential for astronomical damages but again rubbished those fears.

At one point, Thompson played video depositions to support the state’s points. The DOJ attorneys jumped in and said some of the answers had been cut off — edited out in the video — and that the court should refer to the transcript for any substantive judgments based on the recordings. The state responded with little more than an admission that the full transcripts had already been submitted.

Andrew Stephens, an attorney for three intervenors who have considered filing S.B. 8 lawsuits, also challenged the assertion that the challenged statute was a “ban.” He said that the number of abortions in Texas had plummeted to somewhere between 40% to 60% of their pre-S.B. 8 levels — evidence he used to characterize S.B. 8 as a limit, not a “ban,” on the terminations of pregnancies.

Another intervenor, Oscar Stilley, declined the chance to argue his own insertion of himself into the case. He said he would he would simply rest on his written briefs.

Netter then rebutted the state’s complaint that he had been hyperbolic during his initial arguments and said the common-sense interpretation of S.B. 8 was clear: the statute made it more difficult for women to obtain abortions between six weeks of pregnancy and the point of viability enshrined in Casey.

“The facts on the ground are quite clear. . . that SB8 has had the effect of materially diminishing” the ability of “women in Texas” to exercise a “Constitutional right,” Netter said.

“Texas cannot hide behind a clever structuring of the law,” Netter continued — again referencing the “constitutional rights” of citizens. He summed up that the state’s legal position was “terrifying” because it sought to “outflank” the federal government.

Judge Pitman said he would take the arguments under advisement and decide whether to issue a preliminary injunction at a later date.

[Photo by Jordan Vonderhaar/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.