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Groups opposed to abortion rights are unhappy with judge's intervention in Texas

STEVE INSKEEP, HOST:

OK. Now how are groups that oppose abortion rights responding to the federal judge's ruling? Rebecca Parma is the senior legislative associate at Texas Right to Life. That group was involved in crafting the law banning most abortions in Texas. And she is in the lovely city of Austin this morning. Welcome to the program.

REBECCA PARMA: Thank you for having me.

INSKEEP: I want to ask a strategy question first. Three times Judge Robert Pitman calls the law flagrantly unconstitutional. And that does seem to be a matter of basic math given the current - what is the law at the moment. The Supreme Court affirmed the right to an abortion in the first two trimesters, about 27 weeks of pregnancy. And this law draws the line somewhere around six weeks. What was your strategy in supporting a state law that does that?

PARMA: Yeah, so a couple of things. One is that the way that the heartbeat law in Texas is drafted is that these lawsuits would be heard in the state courts. And so it works alongside what's going on federally with the Supreme Court already poised to hear the Mississippi case regarding abortion later this year, where it's anticipated that they will reverse Roe v. Wade. And so working within - alongside what's happening at the federal level, this focus is more at the state level to chip away at Roe v. Wade.

INSKEEP: Chip away at Roe v. Wade, but it doesn't actually seem to do that. In fact, it seemed explicitly designed to avoid judicial scrutiny. Wasn't your strategy actually to stop abortions in a way that is unconstitutional at the moment?

PARMA: So our strategy is to stop abortion and save pre-born children. But it doesn't - it's not evading judicial scrutiny. The private cause of action does prevent a lot of pre-enforcement lawsuits. But all these lawsuits that would be filed under the law go through the state court system. And so nothing in the legal or evidentiary process is suspended under this law. It's just going through state courts instead of federal courts.

INSKEEP: I just want to be really clear here. There's a supremacy clause in the Constitution. Federal law applies to the state of Texas. Texas lost the civil war. I mean, this is - it's very clearly in contravention of federal law.

PARMA: Well - excuse me. I mean, we'll see what the Supreme Court chooses to say. But at this point, you know, the law is in effect in Texas. It is temporarily enjoined. We'll see what the Fifth Circuit has to say as well. But while this law is in effect and as we see what the Supreme Court chooses to do in potentially overturning Roe v. Wade in the next few months, that's going to have a big impact on what Texas and other states can do.

INSKEEP: Well, you're correct that there is a Mississippi law that is a direct challenge to Roe v. Wade that says the line ought to be drawn at 15 weeks. And we want to challenge the law and change it. But that's not actually what you're trying to do here. Judge Robert Pitman, the federal judge here, gives a counter example looking at the strategy that was used in this law. He says, suppose a state passes a law that would allow any private citizen to sue a Texan who owns a firearm, which seems like a clear violation of the Second Amendment to me. But it would be the very same principle as this Texas law, same principle that you support. Would you support that law?

PARMA: Well, I don't advocate on anything regarding the Second Amendment. I advocate for protecting pre-born children. And so the reason we used this private mechanism is because, as a movement, we're tired of our laws being struck down by activist federal judges - and Judge Pitman's an example - and not being enforced by local district attorneys. And so - you know, this enforcement mechanism is used in other parts of law. And so we are choosing to apply it in a pro-life context in this law.

INSKEEP: So your goal is to achieve the political objective that you feel is important regardless of the current understanding of the Constitution? Is that fair to say?

PARMA: Well, the right to abortion or so-called right to abortion, we would argue, is not an actual constitutional right. And that's what this whole Mississippi case is going to be arguing - right? - and what the Supreme Court considers. And so while that's happening, as a state, we want to push to protect as many pre-born children as possible. And that's what this law does. And as it moves through the court system, you know, we'll see what the courts choose to do. But our goal is to be protecting pre-born children from abortion.

INSKEEP: Our correspondent Ashley Lopez noted a really interesting provision of this law. There is a retroactive provision. It says - it seems to anticipate that a federal judge was going to do what the federal judge, in fact, did and enjoined the law and at least temporarily suspended. And the language of the law, which I've read, effectively says, if this law is restored later, you can sue people retroactively for abortions going on during the period when the law was not in effect in Texas at all. People appear to be in some clinics performing abortions now. Do you have people gathering information for lawsuits?

PARMA: I mean, they're - some of these clinics are being pretty obvious about the fact that they're resuming abortions. And so - you know, when this case is settled, the pro-life movement in Texas is fully planning to hold the abortion industry accountable to the fullest extent possible. And there is that provision, like you said, that retroactively can hold abortionists accountable if they violate the law. And there's a four-year statute of limitation with that. So there's time even as we watch what happens on the legal front and the injunction being dissolved eventually.

INSKEEP: I should just note - I mean, you're using terminology that's not universally accepted. And I feel I need to make a note of it when you say things like pre-born and abortionist. I understand that's your language. But we're talking about doctors performing medical procedures that are legal under federal law, correct?

PARMA: Well, just because they're legal doesn't mean they're right, you know? An abortion is - it is a violent procedure that results in the death of one of the patients, and that's the child in the mother's womb. And that's the reality of it. And so that's what we're trying to highlight, too, is this isn't a normal procedure. You don't go for medicine, usually, to end up in death. You go for life. And that's not what happening. And it's unfortunate.

INSKEEP: And we'll just acknowledge that's your view of life. It's not a universal view of life. I want to ask something else about the lawsuits here. When the law first took effect in September, there were two initial lawsuits. One was a person who described himself in the lawsuit as a criminal, the other was an opponent of the law who was hoping that a lawsuit would overturn it. Do you have additional citizens who are seeking payment for turning in abortion providers?

PARMA: You know, at this point, we have only seen three lawsuits filed. They were filed under the law as a result of an op-ed from an abortionist in San Antonio. And so I think what this has highlighted is this fear of all these lawsuits frivolously coming against abortion providers has not materialized. And the point is that pro-life individuals who might bring a lawsuit under the law, they're doing it because they want to see pre-born children protected and the abortion industry held accountable, and not just to get a monetary reward. And those individuals who have so far filed lawsuits are very evidently self-serving and not from the pro-life movement.

INSKEEP: I want to ask about the provisions of the law itself. It's entirely possible the Fifth Circuit Court of Appeals or the Supreme Court itself might ultimately put this law back into effect. It has very few exceptions - virtually no exceptions after about six weeks of pregnancy. Really, the only thing is some kind of medical emergency, as I understand it. But we're hearing from OB-GYNs that that is so unclear, they're not even sure that they can act in any situation at all. What constitutes a medical emergency under this law?

PARMA: Yeah. That's not a fair representation from individuals who would say that because we in Texas have a medical emergency definition in our law. And that definition was there long before the Texas heartbeat Act passed. And so individual - you know, OB-GYNs are used to working under that medical emergency definition because it's already in law. And it's very clear what constitutes a medical emergency.

INSKEEP: OB-GYN I spoke with has had a patient who was 17 weeks pregnant. Her water broke. She says that's a non-viable pregnancy. She doesn't know if she can do the normal thing or not here.

PARMA: Well, the medical emergency exception and definition is really clear about what constitutes an allowance in that respect. It's something that endangers the physical functioning and life of the mother. And so - you know, OB-GYNs, I trust that they are trained in what constitutes that kind of thing. And so as they have a patient, they can evaluate that in the context of the law.

INSKEEP: Rebecca Parma, the senior legislative associate at Texas Right to Life in Austin, Texas. Thanks for taking our questions this morning, really appreciate it.

PARMA: Yeah. Thank you.

(SOUNDBITE OF FREDDIE JOACHIM'S "MULLED WINE") Transcript provided by NPR, Copyright NPR.