A federal judge on Friday pressed lawyers for the state of Texas about the “very unusual” design and legality of a ban on abortion as early as six weeks into pregnancy that makes no exceptions for rape or incest.

“If the state is so confident in the constitutionality of the limitations on a woman’s access to abortion, then why did it go to such great lengths to create this very unusual” private enforcement mechanism “rather than just simply do it directly?” U.S. District Judge Robert Pitman asked a lawyer for the Texas attorney general during a court hearing.

Pitman’s question came as he considered the Biden administration’s request to block enforcement of the most restrictive abortion law in the country, which empowers private citizens — rather than state officials — to take civil action against anyone who helps terminate a pregnancy after cardiac activity is detected, usually around the six-week mark.

The judge did not immediately indicate how he would rule but said he would give the matter “careful consideration” and “get to work” on an order. Whatever Pitman decides will almost certainly be appealed, and the issue could return to the Supreme Court.

The three-hour hearing in Austin was the latest showdown over a law that was specifically crafted to avoid preemptive legal action, and that since Sept. 1 has halted most abortions in the second-most-populous state in the country.

In response to the judge’s question Friday, Will Thompson, a lawyer for the state, said it was not unprecedented to allow individuals to enforce state laws. “I don’t think the state went to particularly unusual lengths,” Thompson said as he urged Pitman to dismiss the lawsuit.


Justice Department lawyer Brian Netter urged the court to issue an injunction that would restore access to abortion after the six-week mark, a stage when many who are pregnant do not yet know they have conceived.

He asked Pitman to stop Texas’s “unprecedented scheme of vigilante justice designed to scare abortion providers” and others who might help pregnant individuals “exercise their constitutional rights” to the procedure before viability, which is usually around 22 to 24 weeks.

“So far it’s working,” Netter said. “Women have been left desperate” to “get out of Texas if they even can” to terminate their pregnancies.

In a filing before the hearing, Texas Attorney General Ken Paxton, R, said the federal government lacks legal grounds to sue, in part because Texas officials have no role in enforcing the law.

Any challenge to the constitutionality of the measure, Paxton said, must come in state court after an abortion provider is sued by a private citizen for violating the ban. At least three such lawsuits are pending. Those who bring successful civil lawsuits can receive an award of at least $10,000 for each abortion considered illegal.

Thompson told Pitman on Friday that the Justice Department has engaged in a “pattern of hyperbole.” He said, “This is not some kind of vigilante scheme. It uses the normal, lawful process of justice in Texas.”


One exchange between the judge and the state’s lawyer illustrated the unusual structure of the law, which specifically bars enforcement by state government officials. Pitman several times asked Thompson about the implications of a potential injunction.

If the court were to issue an order against the state, the judge asked, “what would you believe that would obligate you to do, if anything?”

“Honestly, I’m not sure, and that’s the problem,” Thompson said, noting the lack of a streamlined state court filing system for tracking lawsuits filed under the ban.

The Justice Department suggested that Pitman could issue an injunction that would stop any state-court proceedings initiated under the law.

Even before the hearing, Pittman was deeply familiar with the Texas law and the legal claims. He had rejected a request from Texas officials to dismiss an earlier lawsuit by abortion providers and advocates, who sued court judges and county clerks to prevent them from accepting lawsuits seeking to enforce the ban. In response to that lawsuit, Pitman had scheduled a hearing to consider whether to block the six-week ban before it took effect.

But the U.S. Court of Appeals for the Fifth Circuit called off the hearing pending further review. Abortion providers then asked the Supreme Court to step in. The high court’s conservative majority refused to immediately block the law, citing its novel design.


Abortion providers last week renewed their request to the justices, telling them that “the threat of unlimited lawsuits from the general populace and the prospect of ruinous liability” has forced physicians and abortion clinics to stop providing abortions, despite Roe v. Wade and subsequent rulings guaranteeing a woman’s right to the procedure until viability.

As a result of the law, women in Texas are traveling long distances to Colorado, Kansas, Oklahoma and New Mexico to terminate pregnancies, providers and advocates have said.

The federal case on Friday is one of several legal proceedings involving the law. It is unclear which will provide the path to most directly test the law’s constitutionality.

At least three private citizens have filed lawsuits in state court against San Antonio doctor Alan Braid, who came forward in a Washington Post opinion piece to say he had violated the law.

Separately, the Supreme Court will hear arguments Dec. 1 over a Mississippi law banning most abortions after 15 weeks, which supporters hope will be an opportunity to overturn Roe v. Wade. That law has been put on hold pending the judicial review.

Even if Pitman decides to issue an injunction after the hearing Friday, it may not provide the legal protection physicians are seeking to once again perform abortions in Texas.


If an injunction is later dissolved on appeal, lawsuits can still be brought retroactively, up to four years after the abortion at issue has been performed.

“The threat of liability would remain given the significant possibility that a preliminary injunction would be stayed, reversed, or not turned into a permanent injunction,” Paxton said in his brief.

But abortion providers told the court in a filing Friday that certain clinics will resume providing abortions after the six-week mark if the judge issues an injunction. Amy Hagstrom Miller, president of Whole Woman’s Health, said “neither [the clinics] nor our patients can wait the months or years for completion of all S.B. 8 litigation to resume services.”