As telegraphed by U.S. Attorney General Merrick Garland last week, the Department of Justice has asked a federal district court Tuesday night to temporarily block the enforcement of the new Texas state law banning most abortions as the lawsuit to block the ban altogether awaits a decision.
On Wednesday, Judge Robert Pitman of the U.S. District Court for the Western District of Texas Austin Division - where the motion was filed - set a hearing date for October 1st for the motion filed Tuesday.
In the court filing, the Justice Department's legal team argues the new law violates women's constitutional rights.
"Stepping back, the clear intent of S.B. 8’s provisions is to deprive women of their constitutional rights while simultaneously preventing any court from enjoining the statute’s enforcement," the filing says. "Women are being forced to travel hundreds—and sometimes thousands—of miles to obtain an abortion under harrowing circumstances in the middle of a COVID surge."
Under the new state law - which went into effect September 1 - abortions are banned once a "fetal heartbeat" is detected, which can be as early as six weeks. This is before many women know they're pregnant, and accounts for 85 % of the state's abortions according to providers. Additionally, doctors have asserted what's being captured on a sonogram is just electrical stimulation, since a heart is not formed that early.
Texans demanding federal intervention also point to the fact the ban will disproportionately affect women of color.
According to state data, more than 70 % of the women who have gotten an abortion so far in 2021, and almost 73 % in all of 2020, were women of color.
Also on Wednesday, 22 states plus Washington, D.C., filed an amicus brief in support of the DOJ's lawsuit, in which they say they are "committed to ensuring the safety of residents of our States who must seek medical care in Texas while present as students, workers, or visitors.”
Wednesday's filing comes after Garland sued the state last week to try and get a court to rule the new law illegal.
The new court action is aimed to stop enforcement of the law while the court proceedings for the lawsuit play out.
Earlier this month, the U.S. Supreme Court already ruled against an emergency motion filed by abortion providers to block the law from going into effect.
As the legal battles continue, groups like nonpartisan government watchdog Public Citizen are watching closely.
Public Citizen Texas Office Director Adrian Shelley said Garland's moves here have long been expected.
"The law seems to fly in the face of Roe v. Wade and constitutional protections for women," Shelley said. "So, the Attorney General is filing suit to block the law, and the filing most recently here is to immediately halt implementation of the law while this issue works its way through the courts."
So far, courts have struck down all "heartbeat bills."
However, Texas Republican leaders who pushed the then-bill to the finish line before it became state law have maintained their assertion this ban is different enough than other states' proposals to be upheld in court.
The Texas ban does not include any criminal penalties. Instead, women, abortion providers, or anyone who helps a woman get an abortion past the legally allowed timetable can be sued by anyone in the state - even if they're not related to anyone involved in that women's decision. The ban has also received criticism for not having rape or incest exceptions for women.
"This is now one of the most restrictive abortion laws in the country, and Texas is trying to use a unique procedural approach in laws and enforcement in order to get around Roe v. Wade and current precedent on women's rights," Shelley said. "It's an approach that really flies in the face of what we normally think of as the approach to law and order. If the state wants to make something illegal, then the state should enforce that law. In Texas' case, it knows enforcement of an abortion ban is illegal."
The temporary restraining order filing also addresses the state's defense for the new law, stating it will encourage a bounty hunter system in Texas for abortions.
"In an effort to avoid that result, Texas devised an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand," the filing says. "That affront is deepened by the extraordinary procedural mechanisms Texas has designed to prevent women from vindicating their Fourteenth Amendment rights. S.B. 8 denies the individuals whose constitutional rights are violated a mechanism by which they can protect those rights in court. And by delegating enforcement authority to private bounty hunters, the statute ensures that the only way providers may challenge the constitutionality of S.B. 8 is by performing abortions prohibited by the law and risking ruinous penalties—a prospect that has succeeded in its intended goal of chilling the prohibited activity altogether."
The new law has been called one of the strictest - if not the strictest - abortion bans in in the country, a status Texas already could make a claim for before the new ban went into effect.
Before September 1, abortion was legal in Texas up to 20 weeks unless in the case of a life-threatening condition. After 16 weeks, a woman had to get the procedure at a hospital or ambulatory surgical center. Additionally, women seeking abortions had to make at least two visits to the clinic: the first visit for an ultrasound with the provider describing the images, while the second visit was for the procedure itself.
Even as the new law goes through legal scrutiny, Shelley said the intent of the law may have already been achieved.
"As a practical matter, clinics across the state have already stopped providing abortions. The immediate impact is women don't have access to the healthcare they need. Procedurally, the courts have declined to block immediate enforcement of the law," Shelley said. "The time it takes for the Supreme Court to hear this or another case like it and ultimately decide on this issue, women are already being impacted every single day, and those impacts disproportionately fall on lower income people and people who don't have access to the care they need. It's a tough road ahead, procedurally, and it's impacting people everyday."
All legal roads will likely lead to the U.S. Supreme Court, in which Republican-nominated justices outnumber Democratic-nominated justices 6-to-3.
However, Chief Justice John Roberts - nominated by former President George W. Bush - voted alongside the liberal justices in the ruling earlier this month.
"Ultimately, this comes down to Roe v. Wade. Women's rights at the national level hang in the balance here. I think we have to see this filing of the attorney general in context, but we also have to understand there are similar and legal challenges that are bubbling up in states across the nation. It's a pivotal time for women's health and women's rights," Shelley said.
Here is the full filing from the Justice Department: